Judges back politician in human rights row with Poland

A complaint by a well-known Polish ex-politician and businessman that he was detained in breach of the human rights convention has been upheld by Strasbourg judges.

In its judgement concerning the case Stokłosa v. Poland (application no. 32602/08), which is not final, the European Court of Human Rights held, unanimously, that there had been:

A violation of Article 5 § 3 (right to liberty and security) of the European Convention on Human Rights.

The applicant, Henryk Stokłosa, is a Polish national who was born in 1949 and lives in Śmiłowo (Poland). He was a member of the Senate (the upper chamber of parliament)
between 1989 and 2005 and a prosperous businessman.

A Warsaw court ordered his detention in January 2007 following criminal proceedings opened against him by the prosecution authorities. He was not detained immediately as he had apparently left Poland in December 2006. He was arrested in Germany on 12 November 2007 on the basis of a European Arrest Warrant issued in July that year.

On 19 December 2007, he was extradited to Poland where he was charged with numerous counts of bribery of high-ranking officials and a judge. On 21 December 2007, a junior judge (an assessor) ordered his detention. Stokłosa’s lawyers appealed unsuccessfully against his detention, arguing that the junior judge was not independent from the Minister of Justice and thus did not meet the Convention requirements of an “officer authorised by law to exercise judicial powers.”

In their decision dismissing the appeal, the Warsaw-Praga regional court held that, although the Polish Constitutional Court had declared unconstitutional the legal provisions allowing the Minister of Justice to delegate judicial powers to junior judges (assessors), Stokłosa could only challenge the junior judge’s personal impartiality, but not his/her institutional independence. The reason was that the Constitutional Court had allowed a period of 18 months for the necessary legislative changes to be implemented, to avoid disrupting the Polish legal system.

Decision of the Court

Pre-trial detention (Article 5 § 3)

The Court recalled that it had already dealt with the question of the independence of the Polish junior judges (assessors) from the perspective of Article 6 in an earlier judgment in respect of Poland, namely Henryk Urban and Ryszard Urban. It had found that the assessors were not independent as they could be removed by the Minister of Justice at any time while in their post, and there were no guarantees preventing the Minister from exercising arbitrarily that power.

In a later case, Miroslaw Garlicki, the Court had concluded that the Convention requirement under Article 6 that the deciding tribunal be independent applied also to
“officers authorised by law to exercise judicial power” under Article 5 § 3. In Stokłosa’s case, the question of institutional independence of the junior judge had
been the same in Miroslaw Garlicki. Consequently, the junior judge who had detained Stokłosa had not been independent given that the Minister of Justice could have
removed him from his post at any time.

As regards the argument that the media interest in Stokłosa at the time of his detention had contributed to the assessor’s decision to detain him, the Court observed
first that the interest in him had been justified, given that he had been a well-known public figure. Looking at the circumstances, in which the decision to detain had been
taken, the Court concluded that the Minister of Justice could not be seen to have had an interest in the proceedings against Stokłosa, and therefore had not influenced the assessor’s decision.

Finally, the Government had argued that any defects in the junior judge’s decision to detain Stokłosa had been made good by the Warsaw-Praga regional court which had examined the appeal as a bench of three professional judges who met the Convention requirements of independence. The Court held that, according to Article 5 § 3, it was the judicial officer authorising detention who had to meet the requirements of independence, especially because detention decisions were enforced immediately and could not be corrected in a meaningful way on appeal.

Consequently, the Court held that the junior judge had not been independent from the Minister of Justice, in violation of Article 5 § 3.

Just satisfaction (Article 41)

The Court found that the finding of a violation constituted in itself sufficient just satisfaction for Stokłosa.

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