Poland’s FOZZ financial dealings trial led to one violation, other complaints rejected
JUDGMENT
Chim and Przywieczerski v. Poland 12.04.2018 (no.36661/07 and 38433/07)
SUMMARY
The involvement of a judge in a drafting committee on the draft law of Parliament on the basis of which the deadlines for the prosecution of offenses were widened does not imply a lack of impartiality. Neither his statements during the trial that there were “40 million casualties” due to the applicants’ misdemeanors, nor his interview with a magazine refusing to comment on the trial had expressed his support for severe sentences for criminals and commented that which he saw was an atmosphere of impunity posing personal bias. However, his appointment to the Court of First Instance, contrary to the provisions of the national Code of Criminal Procedure, violates the fair trial because the applicants were tried by a court that was not legally operating in accordance with Article 6 (1) of the ECHR. Infringement only in relation to the last leg.
PROVISION
Article 6 § 1
PRINCIPAL FACTS
The applicant in the first application is Janina Irena Chim, who was born in 1950 and lives in Warsaw (Poland). The applicant in the second application is Dariusz Przywieczerski, who was born in 1946 and lives in Apollo Beach, Florida, the United States. Both applicants are Polish nationals.
Ms Chim was deputy director general of the FOZZ, while Mr Przywieczerski was the managing director and chairman of the board of a company which conducted transactions with it. After being indicted in January 1998, both Ms Chim and Mr Przywieczerski were convicted in March 2005 of misappropriation of FOZZ funds and other offences. They were given prison sentences and fines.
On appeal, they alleged that the trial judge had been appointed unlawfully as the correct procedure for selecting him had not been followed, and that he had not been impartial. They noted in particular that he had been involved as an advisor in Parliament’s drafting of the legislation on extending time-limits to prosecute offences. The draft bill made direct reference to the FOZZ case.
The appeal court in January 2006 partially quashed the convictions. Further proceedings included a partial overruling of the appeal court decision by the Supreme Court in February 2007, which also rejected arguments by the applicants about the judge’s lack of impartiality. In February 2009 the Constitutional Court upheld one of its own previous rulings that the time-limit law was constitutional and that the passage of the bill had not affected the judicial determination of the FOZZ case.
Article 6 § 1
The Court joined the two applications given their similar factual and legal background and first examined Ms Chim’s and Mr Przywieczerski’s complaint about the appointment of the first-instance judge under the heading of a “tribunal established by law”.
It noted that the appeal courts had found that the trial judge had been assigned in violation of the Code of Criminal Procedure, but that that had not affected the original judgment. The courts had rejected the applicants’ appeals on the issue and had therefore not remedied the defect in the judge’s appointment. As a consequence, the Court found that the trial court had not been established by law, within the Convention meaning, leading to a violation of the applicants’ rights.
On Ms Chim’s and Mr Przywieczerski’s allegations of bias on the part of the judge, the Court observed that under its case-law there was a subjective and an objective test.
On the first test, the Court noted that the judge had made various statements during the trial, including a comment that there had been “40 million victims” of the applicants’ alleged wrongdoings. He had also given a magazine interview where he had refused to comment on the trial but had expressed himself in favour of harsh punishments on criminals and criticised what he saw as an atmosphere of impunity. The Court found that such statements had not shown that the judge had a personal bias against the applicants.
On the second of the tests, the Court observed that the applicants had complained in particular about the judge’s involvement in drafting the legislation on time-limits. However, the Court found that that had not been the case.
In particular, the Court said it had examined the minutes of the Parliament committee which had handled the bill and found that the judge had been mostly absent from the discussions and that the one time he had been there he had not been allowed to comment specifically on the bill. The applicants had also not provided any evidence for their allegations that the judge had advised opposition deputies on the bill or that he had had links with the opposition party Law and Justice.
On the third complaint, of legislative interference, the Court first found that it was inadmissible as regards Ms Chim as she had not been a victim of the application of the time-limit legislation.
Although it was admissible as regards the second applicant, the Court found that there had been no violation of his right to a fair hearing.
In particular, it agreed with the reasoning of the Constitutional Court that the law had not affected the judicial determination of Mr Przywieczerski’s case in substantive terms but had simply extended the time-limit for criminal liability. It also noted its own case-law on limitation periods, which had found that they were procedural laws which did not define offences or lay down penalties. In the absence of arbitrariness in Mr Przywieczerski’s case, the Court found that the application of the 2005 time-limit legislation had not violated his right to a fair hearing.
Just satisfaction (Article 41)
The Court rejected Ms Chim’s claims for an award in respect of pecuniary and non-pecuniary damage. It also rejected Mr Przywieczerski’s claim in respect of pecuniary damage and found that the finding of a violation alone was sufficient just satisfaction in respect of any non-pecuniary damage. It awarded 5,000 euros to the second applicant in respect of costs and expenses for the proceedings before the Court.
