FIRST SECTION
DECISION
Application no. 22552/12
Jacek MILEWSKI
against Poland
The European Court of Human Rights (First Section), sitting on 2 July 2019 as a Committee composed of:
Pere Pastor Vilanova, President,
Krzysztof Wojtyczek,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 3 April 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Jacek Milewski, is a Polish national who was born in 1968 and lives in Warsaw.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant was the chairman of the football club Arka Gdynia.
4. On 14 September 2007 the prosecutor’s office lodged with the Wrocław Regional Court (Sąd Okręgowy) a bill of indictment against the applicant and several other people. The applicant was charged with leading a criminal group which between July 2003 and June 2006 had on numerous occasions corrupted referees and observers appointed by the Polish Football Association (Polski Związek Piłki Nożnej – hereinafter “the PZPN”), with a view to influencing results of about forty matches played by Arka Gdynia.
5. The applicant was charged with the offence provided in Article 296 (b) § 2 of the Criminal Code (“the CC”). This provision, which came into effect on 1 July 2003, penalised the offering or promising of financial or personal advantage to any person organising a professional sports competition or taking part in such a competition in exchange for unfair behaviour which might affect the result.
6. On 3 April 2009 the Wrocław Regional Court gave judgment. The applicant was convicted as charged and sentenced to four years’ imprisonment and a fine.
7. The court established that between July 2003 and June 2006 on numerous occasions the applicants with several other people (R.F., M.D., J.P., W.W. and A.S.) had offered or promised financial or personal benefits to referees and observers appointed by the PZPN in return for help in obtaining favourable results of football matches.
8. Regarding the modus operandi of the group the court held that the applicant had had contact with a certain R.F. and M.D., who had had close relationships with referees, PZPN observers and other people involved in football. They had arranged meetings with referees and observers allowing the applicant or other club representatives (J.P. and W.W.) to bribe them. R.F. and M.D. had been paid for their services. The other members of the group had been employees of Arka Gdynia and their role had been, inter alia, to prepare money for bribes and to falsify accounts.
9. The applicant denied his participation in match-fixing. He submitted that on several occasions he and other members of the club had been contacted by F.R., who had proposed to fix matches in return for a bribe; F.R. had even blackmailed him to obtain his acquiescence. The applicant argued that he had refused such proposals but had tolerated the fact that other members of football club might have paid bribes.
10. The court established the facts, relying partly on statements given by witnesses and the co-accused, who had provided the court with information about match-fixing and their role in it. In the course of the investigation a number of referees and observers confirmed that they had been contacted by the representatives of Arka Gdynia, including the applicant, and had accepted bribes; however they had denied it before the court. Their statements made in the investigation had been corroborated by telephone records confirming contact between them and certain of the co-accused at the relevant time.
11. Eventually, the court concluded that by corrupting football referees and the PZPN’s observers the applicant had committed the offence under Article 296 (b) § 2 of the CC. Additionally, relying on Article 258 § 3 of the CC it held that the offences had been committed by a criminal group organised and led by the applicant.
12. The applicant appealed. He challenged the facts established by the court as well as the interpretation and application of Article 296 (b) of the CC. The applicant stressed that there had been no legal definition of a person organising a sports competition or participating in it. He asserted that according to a linguistic interpretation of Article 296 (b) § 1 of the CC neither a referee nor a PZPN observer could be recognised as such a person. Regarding the term of “participant in a sports competition” he cited the legal definition of “participant” provided in the Professional Sports Act (Ustawa o sporcie kwalifikowanym) of 29 July 2005, which set out that sport clubs, professional and amateur athletes were recognised as participants in sporting events (uczestnik wspolzawodnictwa sportowego). This Act explicitly distinguished a referee from the participants in sporting events. The applicant argued that the existence of the statutory definition excluded the possibility of applying a different interpretation of Article 296 b § 1 of the CC by referring to its origin or aim. In that connection the applicant invoked an article published in a legal journal in 2007. He also argued that a referee and an observer appointed by the PZPN should not be recognised as organisers of a football match either.
13. The applicant also alleged he had not been provided with all the statements given by the witnesses in the course of the investigation as the court had failed to disclose their entire statements. Moreover, he challenged the court’s refusal to examine video records of matches and to hear evidence from an expert in the field of football referring in respect of the alleged irregularities during matches.
14. On 20 May 2010 the Wrocław Court of Appeal (Sąd Apelacyjny) partly amended the lower court’s judgment and sentenced the applicant to three years’ imprisonment and a fine.
15. The appellate court disagreed with the applicant’s interpretation of Article 296 (b) § 1 of the CC. It observed that the scope of protection (zakres ochrony) offered by this provision encompassed the fairness of professional sports competitions, economic interests related to them, the public confidence in rules determining organisation and participation in sporting activities and the role of the sport in the education of young people on the one hand, and a proper organisation and participation in sports competition on the other hand.
16. The court noted the professional and economic aspect of the activities carried out by Arka Gdynia, which were aimed at obtaining good results in football competitions organised by the PZPN and enhancing its economic performance. It stressed that Arka Gdynia had acted as a commercial company run by professional management.
17. Referring to the applicant’s arguments, the court noted the difference between the term “participant in a sporting event” (uczestnik współzawodnictwa sportowego) within the meaning of the Professional Sports Act and a term “participant in a sports competition” (uczestnik zawodów sportowych) within the meaning of the CC. The court explained that the term “sporting event” (współzawodnictwo sportowe) had been defined in the Physical Culture Act of 18 January 1996 as an individual or team event carried out within a sports competition and aiming to improve results or to win against competitors and thus its scope was narrower in comparison to a term “sports competition”(zawody sportowe).
18. The court also noted that section 4 of the Professional Sports Act provided that the detailed conditions of participation in sporting events were regulated by the rules of individual sport associations (regulamin sportowy).
19. Lastly, relying on academic opinions it held that, in any event, a legal definition of a term adopted for the needs of one Act or even a branch of law did not always correspond to the needs of other Laws and should not be applied therefor.
20. As a result the court held that term “participant” in a football match should be interpreted in line with the “Laws of the Game” established by FIFA (Fédération Internationale de Football Association) and adopted by the PZPN. Referring to FIFA’s rules, the Court of Appeal stressed the essential role of a referee who applied the laws (rules) of football and without whom it would be impossible to organise any football match.
21. The court noted that referees, who were appointed by the PZPN, were also responsible for ensuring that the performance of football matches met the PZPN’s standards regarding, inter alia, the technical requirements of a football pitch, the footballers’ strips, and so forth.
22. Taking the above into account, the Court of Appeal concluded that referees should be recognised as “participants” in sports competition as well as its “organisers”. The court cited corroborating opinions of legal writers expressed in numerous publications at the time the offences had been committed. It also noted that an author whose opinion had been cited by the applicant, had stated in 2004 in his commentary on the Criminal Code and Other Acts (amendments) Act of 13 June 2003 that a referee and a representative of a sport’s governing body should be recognised under Article 296 (b) § 1 of the CC as a participant in a sports competition owing to his or her essential presence for the carrying out of such a professional competition.
23. Considering the status of the PZPN’s observer as an organiser of a sports competition, the Court of Appeal noted the lack of legal definition of this term. However, referring to the provisions of the Physical Culture Act of 18 January 1996 the court held that organisation of sports competitions was a main objective of sports associations. In this connection there was no doubt that the PZPN was entitled, on the basis of its rules, to organise football matches and to appoint observers to assess the work of referees with a view to enforcing the rules. Accordingly, the court concluded that an observer appointed by the PZPN should be recognised as an organiser of a professional sports competition.
24. Lastly, the court referred to the reasons for the introduction of Article 296 (b) of the CC, which had been the lack of possible criminal bases to deal with the problems afflicting professional sport and the necessity to tackle corruption. The court analysed the records of the parliamentary commissions and found that the intention of the deputies had been to penalise any kinds of corruption which could have had an impact on professional sport.
25. Regarding the applicant’s allegation that he had not been able to prepare his defence because of the court’s failure to disclose all pre-trial statements given by witnesses, the court held that in the course of investigation they had provided the authorities not only with information regarding the offences with which the applicant had been charged, but also those concerning other football clubs and people engaged in match-fixing, in respect of whom an investigation was pending. Therefore, the disclosure of all statements given by the witnesses in the investigation might have jeopardised the pending investigation. The court noted that the first-instance court had been provided with all witness statements and, after having analysed them, had read out the parts of them concerning the offences included in the bill of indictment against the applicant. The appellate court held that all information regarding the offences with which the applicant had been charged had been disclosed.
26. The appellate court also agreed with the lower court’s decision that an expert opinion given on the basis of video records of matches had been irrelevant for the proceedings as a video record could not have given a full view of the situation on a football pitch and could not have reflected the referees’ perception.
27. The applicant lodged an appeal on points of law with the Supreme Court. He alleged an erroneous interpretation of Article 296 (b) of the CC which had resulted in his conviction under this provision as well as procedural shortcomings.
28. On 11 October 2011 the Supreme Court dismissed the applicant’s appeal on points of law as manifestly ill-founded without giving any reasons.
B. Relevant domestic law and practice
29. The Criminal Code and Other Acts (amendments) Act (the so-called “Anticorruption Amendment”) was enacted on 13 June 2003 and entered into force on 1 July 2003.
30. It introduced Article 269 (b) to the Criminal Code, which at the relevant time read:
Ҥ 1. Any person who, organising a professional sports competition or taking part in such a competition, accepts a financial or personal advantage or a promise thereof in exchange for unfair behaviour, which may affect the result of the competition, shall be liable to the penalty of imprisonment for a period not shorter than three months and not longer than five years
§ 2. Anyone who, in the case specified in § 1, provides or promises to provide a material or personal benefit is liable to the same penalty.
COMPLAINTS
31. The applicant complained under Article 6 of the Convention of the unfairness of the proceedings. He alleged that the trial court had failed to disclose a part of the statements made by witnesses in the course of the investigation and had refused to allow evidence of video records of matches and expert opinion to be presented. He also alleged a lack of independence and impartiality on the part of the first-instance court’s judge and a breach of the principle of the presumption of innocence. He referred to the fact that the bill of indictment against him had been lodged with the court at the time of the parliamentary electoral campaign of a former Minister of Justice and argued that a trial court judge had acted under pressure from Minister and public opinion.
32. Relying on Article 7 of the Convention the applicant complained that the courts had interpreted the relevant provisions of criminal law to his detriment and had convicted him of an act which, when it had been perpetrated, had not been criminal under the law as in force. Moreover he alleged that the courts had erroneously concluded that the he had committed a criminal offence, acting within a criminal group which he had organised and led.
THE LAW
A. Complaint under Article 6 of the Convention
33. The applicant submitted that the courts’ failure to disclose a part of statements made by witnesses in the course of the investigation and admit certain other evidence had undermined his right to a fair trial. He also alleged a lack of impartiality on the part of the trial court’s judge and breach of the principle of the presumption of innocence.
34. He relied on Article 6 of the Convention, which in so far as relevant, provides:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
35. The Court reiterates that it is a fundamental aspect of the right to a fair trial that criminal proceedings should be adversarial and that there should be equality of arms between the prosecution and the defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6 § 1 requires that the prosecution authorities disclose to the defence all material evidence in their possession for or against the accused (see Jasper v. the United Kingdom [GC], no. 27052/95, § 51, 16 February 2000).
36. The Court notes that in the present case the applicant had knowledge of all evidence adduced by the prosecution in respect of the offences with which he had been charged, as was confirmed by the Court of Appeal (see paragraph 25 above). The domestic courts, after having analysed the entire statements given in pre-trial proceedings, disclosed the parts related to the offences with which the applicant had been charged.
37. Regarding the complaint concerning the court’s refusal to admit evidence proposed by the applicant, the Court reiterates that as a general rule the admissibility of evidence is a matter for regulation by national law and appreciation by the domestic courts, which assess the evidence before them as well as the relevance of the evidence which the accused seeks to adduce (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003‑V). In this connection, the Court observes that the domestic courts gave sufficient reasons for which they found the evidence the applicant wished to present irrelevant for the case (see paragraph 26). Furthermore, having regard to the fact that the applicant was able to conduct his defence effectively throughout the proceedings (see paragraphs 12 and 13 above), it cannot be said that that the courts’ refusal to admit evidence proposed by him undermined the overall fairness of the trial (see also Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 158-175, 18 December 2018). It follows that this part of complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
38. The applicant also alleged a lack of independence and impartiality on the part of the first-instance court’s judge and a breach of the principle of the presumption of innocence. The Court notes, however, that the applicant did not raise these complaints in the course of the proceedings before the Court of Appeal or later on in his appeal on points of law to the Supreme Court. It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Complaint under Article 7 of the Convention
39. The applicant challenged the courts’ interpretation of Article 296 (b) of the CC and alleged in substance that he had been convicted of an act which, when it had been perpetrated, had not constituted an offence under the law as in force. In that connection he relied on the absence of a legal definition of the terms “sports competition organiser” and “participant in a sports competition” in domestic criminal law. He also challenged the application of Article 258 § 3 of the CC, denying that the offences for which he had been convicted had been committed by a criminal group which he had organised and led.
40. He relied on Article 7 of the Convention, which provides:
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
41. A restatement of the general principles concerning Article 7 of the Convention may be found in the Grand Chamber judgment Del Río Prada v. Spain [GC] (no. 42750/09, ECHR 2013), which stated that:
“(a) Nullum crimen, nulla poena sine lege
...
78. Article 7 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage [references omitted]. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege [reference omitted]). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy [references omitted].
79. It follows that offences and the relevant penalties must be clearly defined by law. This requirement is satisfied where the individual can know from the wording of the relevant provision, if need be with the assistance of the courts’ interpretation of it and after taking appropriate legal advice, what acts and omissions will make him criminally liable and what penalty he faces on that account [references omitted].
...
(c) Foreseeability of criminal law
91. When speaking of ‘law’ Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability [references omitted]. These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence carries.
92. It is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. One of the standard techniques of regulation by rules is to use general categorisations as opposed to exhaustive lists. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice [reference omitted]. However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances [reference omitted].
93. The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain (ibid.). The progressive development of criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition in the Convention States [reference omitted]. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen [references omitted].”
42. As regards the interpretation and application of domestic law, the Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II).
43. The Court recognises that the applicant’s case had no precedents and the domestic courts were called on to interpret Article 296 (b) of the CC for the first time. That is not decisive, however, since Article 7 of the Convention does not outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, “provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen” (ibid., § 50).
44. In the present case the Court therefore needs to decide whether the national courts’ interpretation of the terms “participant” and “organiser” of a sports competition under Article 269 (b) of the CC, so as to cover the applicant’s acts committed between July 2003 and June 2006 was consistent with the essence of that offence and could have reasonably been foreseen by the applicant at the material time.
45. The Court notes that the Criminal Code and Other Acts (amendments) Act of 13 June 2003 introduced changes aimed at harmonising the Criminal Code with international standards. The new regulation widened the scope of the criminalisation of corruption in public and private spheres and criminalised electoral bribery as well as corruption in business and in the area of professional sport.
46. In interpreting the impugned provision, the domestic courts clearly explained the grounds for which they found that football referees and the PZPN observers met the criteria to be recognised respectively as participants in and organisers of sports competitions. In this connection they referred to the provisions of national law as well as to international and national rules concerning the organisation of football competition. Consequently, the courts concluded that the applicant’s corrupting acts fell to be examined under Article 296 (b) of the CC (see paragraphs 17-18 and 20‑23).
47. The Court notes that the domestic courts’ interpretation has been supported by opinions issued at the relevant time of a number of legal writers (see paragraph 22). The applicant challenged the domestic courts’ findings, relying only on minority legal opinions prepared after the commission of offences. Furthermore, the Court cannot accept the applicant’s allegation in respect of the foreseeability of Article 296 (b) of the CC while relying on provisions of the Professional Sports Act as this Act was introduced on 29 July 2005, when some of the offences had already been committed. In any event, as was showed by the domestic courts the applicant’s interpretation of Article 296 (b) of the CC in relation to the provisions of the Professional Sports Act appeared to be wrongful.
48. Taking into account the text of Article 296 (b) of the CC, the context of introduction of the Criminal Code and Other Acts (amendments) Act and the opinions expressed in legal journals at the time the applicant committed the offences, the Court considers that despite the lack of a legal definition of an organiser of and participant in a sports competition under domestic criminal law, the applicant, if need be with the assistance of a lawyer, could reasonably have foreseen that bribery proposals made to referees and the PZPN’s observers would have constituted an offence.
49. Additionally, the Court notes that the applicant was a professional football manager aware of football’s rules, and the essential role of a referee and the PZPN’s observer in the organisation and management of football matches. Individuals carrying on a professional activity must proceed with a high degree of caution when pursuing their occupation and can be expected to take special care in assessing the risks that such activity entails (see Pessino v. France, no. 40403/02, § 33, 10 October 2006). The applicant must have known therefore that referees’ decisions in particular could determine the results of matches played by Arka Gdynia and that the aim of Article 296 (b) of the CC had been to prevent any unfair behaviour which might have had an impact on sports competitions.
50. In conclusion, the Court finds that the offence of which the applicant was convicted was sufficiently defined in law and that the interpretation given by the domestic courts was consistent with the essence of the offence thus defined. Accordingly, the applicant could have reasonably foreseen that his conduct would render him criminally liable under the provisions of the Article 269 (b) of the CC.
51. Regarding the applicant’s complaint that the domestic court erroneously convicted him for having organised and led a criminal group, the Court reiterates that it is not its task to act as an appeal court of fourth instance by calling into question the outcome of the domestic proceedings or questioning the application and interpretation of domestic law (see Minshall v. the United Kingdom, no. 7350/06, § 58, 20 December 2011) unless there is clear evidence of arbitrariness (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 89, ECHR 2007-I). The material at hand does not reveal any shortcomings or arbitrariness on the part of the domestic courts; the applicant essentially challenged the interpretation and application of substantive domestic law regarding the commission of an offence by an organised group.
52. It follows that the complaint under Article 7 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 5 September 2019.
Renata DegenerPere Pastor Vilanova
Deputy RegistrarPresident
Full & Egal Universal Law Academy