Information Note on the Court’s case-law 217
April 2018
Chim and Przywieczerski v. Poland - 36661/07 and 38433/07
Judgment 12.4.2018 [Section I]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Impartial tribunal
Independent tribunal
Legislative amendment enacted during trial extending limitation periods in respect of offences that had not become time-barred: no violation
Facts – The Foreign Debt Service Fund (FOZZ) was established to manage the funds earmarked for servicing Poland’s foreign debt. The first applicant was the Deputy Director General of FOZZ and the second applicant a Director of a company involved in financial dealings with FOZZ. The first applicant was convicted of misappropriation of FOZZ’s property and the second applicant was convicted of misappropriation and theft of FOZZ’s property. In 2005, several months after the initial verdict against the applicants, the Parliament enacted an amendment to the Criminal Code, extending limitation periods in respect of various categories of the offences. The extended limitation periods were to be applied to offences committed prior to entry into force of the Act, except for offences which had already become subject to limitation. The amendment was applied in the criminal proceedings against the second applicant with regard to the offence of theft of FOZZ’s property.
Law – Article 6 § 1
(a) Tribunal established by law – The appellate courts findings were dispositive of the issue that the composition of the first-instance court in the applicants’ case, in so far as it included Judge A.K., did not comply with the applicable requirements of domestic law. However, the appellate courts concluded that the irregular assignment of Judge A.K. to the first-instance court had not affected the content of the trial court’s judgment and dismissed the applicants’ appeals as unfounded. In consequence, the original defect in the assignment of Judge A.K. to the trial bench had not been remedied. Accordingly, the first-instance court which had heard the applicants’ case could not be regarded as a “tribunal established by law”.
Conclusion: violation (unanimously).
(b) Lack of impartiality – With regard to the subjective test of impartiality, the Court scrutinised Judge A.K.’s statement made at the opening of the trial and the passages of reasoning complained about by the applicants. In relation to the newspaper interview where Judge A.K. stated, “Unfortunately, we have succeeded in creating a belief among criminals that they [can] go unpunished”, the Court considered it would have been preferable for him refrain from expressing his views in the media entirely. However, this or the other statements could not be considered indicative of Judge A.K.’s personal prejudice or bias. Concerning the objective test of impartiality, the applicants’ fears of a lack of impartiality on account of Judge A.K.’s irregular assignment to the trial bench had not been objectively justified. Regarding the alleged involvement of Judge A.K. in the amendment of the Criminal Code, the amendment had entered into force after the trial court’s verdict had been given and the legislation could only have been relevant for the appellate stage of the proceedings. It followed that Judge A.K. could not have applied the amendment to the applicants’ case. Even assuming that he had participated in the parliamentary debate in an advisory capacity he had not carried out both advisory and judicial functions in the same case. There was no indication that Judge A.K. had been involved in the drafting of the bill at issue. The applicants’ fears related to the alleged involvement of Judge A.K. in the passage of the amendment could also not be regarded as objectively justified.
Conclusion: no violation (unanimously).
(c) Legislative interference in the criminal proceedings – The Court examined whether the criminal proceedings had been unfair as a result of legislative intervention only with regard to the second applicant. The amendment contained a guarantee that no prosecution was possible in respect of offences that had become time-barred in accordance with the rules applicable prior to its entry into force. The amendment could not be regarded as a legislative interference in the second applicant’s case since that law did not influence the judicial determination of the case in the substantive sense, but merely extended the temporal limits of criminal liability in respect of offences that had not become time-barred. The rules on limitation periods, which could be construed as merely laying down a prior condition for the examination of a case, had no bearing on the exercise of the right to a fair hearing. The application of the amendment extending limitation periods to the case against the second applicant could thus not be interpreted as a violation of the right to a fair hearing.
Conclusion: no violation (unanimously).
Article 41: claim in respect of non-pecuniary damage sustained by the first applicant dismissed; finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage sustained by the second applicant; claims for both applicants in respect of pecuniary damage dismissed.
(See also Coëme and Others v. Belgium, 32492/96 et al., 22 June 2000, Information Note 19; Scoppola v. Italy (no. 2) [GC], 10249/03, 17 September 2009, Information Note 122; and Previti v. Italy (dec.), 1845/08, 12 February 2013, Information Note 160)
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This summary by the Registry does not bind the Court.
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