Resolution of the ECHR of April 12, 2018 in the case of Chem and Przyvierski (Chim and Przywieczerski) v. Poland (applications No. 36661/07 and 38433/07).
In 2007, complainants were assisted in preparing applications. Subsequently, the applications were consolidated and communicated to Poland.
In the case, the fact of the use of the amendment to the legislation, which came into force at the same time, was successfully considered during the trial, according to which new periods of limitation of criminal prosecution were applied, applied to crimes committed before the amendments came into force. The case of violation of the requirements of paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms in relation to the requirement of the presence of a "court established on the basis of the law." The case did not violate the requirements of Article 6 § 1 of the Convention regarding the requirement of impartiality of the judge of the court of first instance and the issue of statutory interference in the course of the criminal proceedings.
THE CIRCUMSTANCES OF THE CASE
The Fund for External Debt Service (FOZZ) was established to manage cash funds intended to pay for Poland’s external debt. The first applicant was the deputy general director of the External Debt Service Fund, and the second applicant was the director of a company that participated in financial transactions with this fund. The first applicant was convicted of embezzling the property of the External Debt Service Fund, and the second applicant was accused of embezzling and stealing the property of this fund. In 2005, several months after the initial verdict against the applicants was passed, the Polish Parliament amended the Criminal Code, increasing the statute of limitations for criminal prosecution regarding a number of crimes. The extended statute of limitations should have been applied to crimes committed prior to the entry into force of the amendments, with the exception of crimes for which statutes of limitation have already been applied. This amendment was applied during the examination of the second applicant's criminal case in relation to the issue of the theft of the property of the External Debt Service Fund by him.
QUESTIONS OF LAW
Regarding compliance with paragraph 1 of Article 6 of the Convention. (a) Court created by law. The findings of the courts of second instance took into account the fact that the composition of the court of first instance in the applicants' case, as far as it included Judge AK, did not meet the requirements of domestic law. However, the courts came to the conclusion that the temporary appointment of judge AK to the court of first instance did not have a negative impact on the content of the decision of the court of first instance, and dismissed the applicants' complaints as unfounded. As a result, the initial violation committed when Judge AK The composition of the court has not been corrected. Consequently, the court of first instance, which considered the applicants' case, could not be considered “a court established by law”.
(b) Lack of impartiality. As regards the subjective criterion of impartiality, the European Court thoroughly examined the statement of Judge AK, made at the beginning of the trial, and the extract from the reasoning part of the court decision, appealed by the applicants. Regarding the interview given to the newspaper, in which Judge AK stated that "unfortunately, we succeeded in making the criminals sure that they [could] go unpunished", the Court considers it would be desirable for the judge to refrain from expressing his opinion through the media. However, this statement or others could not be considered as indicating a personal prejudice or prejudice of judge AK As regards the objective criterion of impartiality, the applicants are concerned about the insufficient impartiality of Judge AK due to his temporary appointment to the court, they were not objectively justified. As for the alleged participation of A.K. in amending the Criminal Code, the amendment entered into force after the court of first instance decided the sentence, and the relevant legal norms could only be applied to the proceedings in the courts of second instance. Therefore, judge A.K. I could not apply the amendment to the applicants' case. Even assuming that judge A.K. participated in parliamentary debates as an adviser, he did not simultaneously perform advisory and judicial functions. Nothing in the case file indicated that Judge AK participated in the preparation of the draft law. Fears of the applicants related to the alleged participation of Judge AK in the adoption of amendments to the Criminal Code, also could not be considered objectively justified.
(c) Legislative interference in the course of criminal proceedings. The European Court examined the question whether the criminal proceedings were unfair as a result of the statutory interference only with respect to the second applicant. The amendment to the Criminal Code contained a guarantee that criminal prosecution was impossible for crimes for which the statute of limitations for criminal prosecution was already in force in accordance with the norms established before the amendment came into force. The amendment could not be considered a statutory intervention in the second applicant’s case, since the relevant regulatory act did not affect the court hearing of the case on the merits, but only expanded the timeframe for criminal liability for crimes that did not previously have a statutory limitation period. The rules on the statute of limitations for criminal prosecution, which could be interpreted as simply establishing a preliminary condition for the consideration of the case, did not have any relation to the exercise of the right to a fair trial. Thus, the application of the amendment extending the statute of limitations for the criminal prosecution to the case of the second applicant could not be considered as a violation of the right to a fair trial.
The case of violation of the requirements of paragraph 1 of Article 6 of the Convention in relation to the requirement of the presence of "the court established on the basis of the law" (adopted unanimously).
The case did not violate the requirements of Article 6 § 1 of the Convention regarding the requirement of impartiality of the judge of the court of first instance (adopted unanimously).
The case did not violate the requirements of Article 6 § 1 of the Convention regarding the issue of statutory interference in the course of a criminal case (adopted unanimously).
In application of Article 41 of the Convention. The claim for compensation for non-pecuniary damage to the first applicant was dismissed, the finding of a violation of the Convention was in itself sufficient fair compensation in respect of any non-pecuniary damage caused to the second applicant. The first and second applicants' claims for pecuniary damage were rejected.