THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47414/99 by Dorota SZOTT-MEDYŃSKA and others against Poland

The European Court of Human Rights (Third Section), sitting on 9 October 2003 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mr L. Garlicki , judges , and Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 31 August 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Ms Dorota Szott-Medyńska, is a Polish national, born in 1954. She runs a family business together with the second and third applicants, Mr Maciej Medyński and Mr Krzysztof Medyński. They reside in Skierniewice. They are represented before the Court by Ms Mirosława Sztandera, a lawyer practising in Łódź. The respondent Government are represented by Mr K. Drzewicki, their Agent.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants run a small family business. By decisions of 17 December 1997 the Treasury Office found all three applicants guilty of a fiscal offence punishable under Article 98 of the Fiscal Criminal Act in that they had failed to pay a monthly income-tax advance on wages for their employees for April 1997, in the amount of 284,90 Polish zlotys (“PLN”). The Treasury Office imposed on each of the applicants a pecuniary penalty of PLN 250, to be substituted by seventeen days of imprisonment in case of default of payment. The penalty was imposed under Article 41 of the same Act, stipulating sanctions for fiscal offences (cf. distinction between “fiscal crimes” and “fiscal offences” in the “Relevant domestic law” below).

The applicants lodged an appeal against this decision with the Treasury Chamber, arguing that the first-instance authority had wrongly instituted the fiscal proceedings against them as no criminal offence had been committed and that, in any event, the legal classification of the offence should be changed to a more lenient one. They submitted that as soon as they had noticed their error they had informed the Treasury Office and, on 20 June 1997, had paid the income tax in arrears with the statutory interest due. Therefore, the State had not sustained any loss. In their submissions, their conviction was a result of an overly formalistic, impractical and unreasonable approach of the tax authorities to the business activities and the tax obligations resulting therefrom.

On 16 March 1998 the Skierniewice Treasury Chamber dismissed their appeals and upheld the contested decisions. No further appeal lay in law against this decision.

B. Relevant domestic law and practice

1. Fiscal crimes and fiscal offences; applicable procedure

The 1971 Fiscal Criminal Act ( Ustawa Karna Skarbowa ), applicable at the material time, distinguished between two types of wrongful acts in the area of fiscal law: “fiscal crimes” and “fiscal offences”; fiscal offences being a category of less serious acts.

Article 1 of the Fiscal Criminal Act defined fiscal crimes as wrongful acts punishable by imprisonment, limitation of liberty or a fine between PLN 200 and PLN 5,000,000. By virtue of Article 13, additional sanctions could be imposed for fiscal crimes such as: deprivation of civil rights, prohibition to exercise certain activities, confiscation of an object, and publication of the court judgment by which the offender was convicted.

Articles 35 and 41 of the Fiscal Criminal Act defined fiscal offences as wrongful acts punishable by a “pecuniary penalty” (as distinguished in terminology from “fine”) between PLN 20 to PLN 1,000. Under Article 43, the additional sanction of confiscation of an object could also be imposed for a fiscal offence where the Act expressly provided therefor.

Under Article 36 of the Act, certain provisions of the Criminal Code of 1969, defining general notions of criminal responsibility, were applicable in proceedings concerning fiscal offences. The provisions in question concerned, inter alia , the definition of a punishable act, the prohibition of retroactivity, the definition of intentional and non-intentional offence, the age limit for liability, notions of attempted offence and aiding and abetting, the circumstances justifying exclusion of criminal liability, and the principles applicable to the determination of criminal sanctions.

As provided by Article 42 of the Act, when pecuniary penalty exceeding PLN 50 is imposed, it may be substituted by up to 30 days' imprisonment in default of payment.

Pursuant to Article 122, the courts were competent to examine cases concerning fiscal crimes punishable by imprisonment or limitation of liberty. Under Article 123 of the Act, cases concerning fiscal crimes in which only fines could be imposed, and cases concerning fiscal offences, were examined by fiscal administrative boards.

Article 206 of the Act stated that decisions given in proceedings concerning fiscal crimes and offences could be appealed against if the law so provided. The remedies were the following: an appeal, a request that the case be examined by a court, and an appeal against interlocutory decisions.

Under Article 208 § 1 of the Act, in cases concerning fiscal crimes, a party to the proceedings could choose between an appeal to a higher administrative authority or a request that the case be examined by a court. An option to use one remedy barred the use of the other. In proceedings concerning fiscal offences, however, only an appeal to a higher administrative authority could be lodged.

On 3 July 1998 a legislative amendment to the Fiscal Criminal Act was adopted to the effect that the demand that the case be examined by the court became available also with respect to fiscal offences. It entered into force on 1 September 1998.

Subsequently, with effect as of 17 October 1999, the new Fiscal Criminal Code replaced the 1971 Fiscal Criminal Act. According to the new law, the courts are competent to examine all cases concerning fiscal crimes and fiscal offences.

2. Provisions relating to the constitutional complaint

On 17 October 1997, the new Constitution entered into force in Poland. Article 79 § 1 of the Constitution provides as follows:

“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”

At the material time, the complaint had to be lodged within 2 months from the date on which the individual decision was served (Article 46 § 1 of the Constitutional Court's Act). This time-limit was extended to 3 months with effect as of 8 October 2000. Article 190 of the Constitution, insofar as relevant provides as follows:

“1. Judgments of the Constitutional Court shall be universally binding and final.

2. Judgments of the Constitutional Court, ... shall be published without delay.

3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. Where a judgment has financial consequences not provided for in the Budget, the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned, after seeking the opinion of the Council of Ministers.

4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a legally effective judgment of a court, a final administrative decision or settlement of other matters was issued, shall be a basis for re-opening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings.”

Article 227 of the Fiscal Criminal Act, as amended by the Constitutional Court Act, provides, insofar as relevant, as follows:

“The Minister of Finance, in the exercise of his supervisory powers, shall, ex officio or upon request, amend or quash a final decision ... rendered on the basis of the legal provision which was found by the Constitutional Court to be in contravention of the Constitution, international agreement or statute ....”

Article 39 § 1 of the Constitutional Court Act, provides, insofar as relevant:

“The Constitutional Court should discontinue the proceedings ... when:

[...]

3. normative act challenged ... lost its binding force before the judgment of the Constitutional Court was delivered.”

With effect as of 8 October 2000, an amendment was introduced which allows the Constitutional Court to continue the proceedings if it considers it necessary for the protection of constitutional rights and freedoms.

Article 239 § 1 of the Constitution provides:

“Within 2 years of the day on which the Constitution comes into force a judgment of the Constitutional Court of the non-conformity with the Constitution of statutes adopted before its coming into force shall not be final and shall be required to be considered by the Sejm which may reject the judgment of the Constitutional Court by a two-third majority vote in the presence of at least half of the statutory number of Deputies. The foregoing provision shall not concern judgments delivered by the Constitutional Court upon requests for preliminary rulings.”

It was controversial among legal writers in Poland whether the Sejm was also empowered to reject judgments delivered upon individual complaints as this category was not expressly excluded from the scope of this provision. The issue had not arisen in practice as the Sejm has never rejected Constitutional Court's judgments on individual complaints and the transitional period of 2 years, referred to in the above provision, expired on 17 October 1999.

COMPLAINTS

The applicants complain under Article 6 of the Convention that the proceedings did not comply with the requirements of Article 6 in that no appeal to a court lay against the decision of the Treasury Chamber and that, consequently, they did not have access to a court with full jurisdiction competent to review their conviction.

The applicants also complain under Articles 6 and 14 of the Convention about the outcome of the fiscal administrative proceedings, arguing that they should not have been convicted of any offence, given that they had not committed it deliberately, they immediately paid the outstanding tax after their omission had come to light, and that their conviction was the result of an overly formalistic, impractical and unreasonable approach of the tax authorities.

THE LAW

The applicants complain about lack of access to court in administrative proceedings in which they were found guilty of a fiscal offence, and about the outcome of these proceedings. The complaints fall to be examined under Article 6 § 1 of the Convention which provides, insofar as relevant:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”

1. As to applicability of Article 6 § 1 of the Convention

a) The parties' submissions

The Government submitted that Article 6 § 1 of the Convention under its criminal head was not applicable to the proceedings in the present case since they were of an administrative nature. The Government recalled that, under the Polish legal system, at the material time, the acts committed by the applicants were considered as offences of a minor character and thus dealt with exclusively by fiscal administrative boards.

The Government also submitted that the situation had changed as of 1 September 1998. On that date, an amendment entered into force which introduced also the possibility of recourse to a court in cases concerning fiscal offences.

The applicant did not address the issue of applicability of Article 6 of the Convention.

b) The Court's assessment

The Court firstly observes that, in a similar Polish case, in its decision by majority vote, Article 6 was found not to be applicable to proceedings concerning fiscal offences ( W.S. v Poland , no. 37607/97, decision of 15 June 1999 [Fourth Section]). Whilst the facts part of the said decision referred to the possibility of imprisonment in default, nonetheless, in the law part of its decision, the Court observed that only a pecuniary penalty could be imposed and asserted that the offence in question was not punishable by imprisonment. The Court, therefore, found that the sanctions risked were not severe enough to be considered “criminal” as only a pecuniary penalty could be imposed on the applicant.

In the present case, however, it is clear for the Court that, albeit in default of payment, the offence could be punishable by imprisonment. Further, the Court notes on 17 October 1999, the new Fiscal Criminal Code entered into force in Poland which provided for an appeal to a court also in cases concerning fiscal offences.

The Court recalls that in order to determine whether the offence qualifies as criminal for the purposes of the Convention, the first matter to be ascertained is whether or not the text defining the offence belongs, in the legal system of the respondent State, to the field of criminal law; next, the nature of the offence; and, finally, the nature and degree of severity of the penalty that the person concerned risked incurring must be examined, having regard to the object and purpose of Article 6, to the ordinary meaning of the terms of that Article and to the laws of the Contracting States ( see Garyfallou AEBE v. Greece, judgment of 24 September 1997, Reports of Judgments and Decisions 1997 ‑ V, p. 1830, § 32; Kadubec v. Slovakia, judgment of 2 September 1998, Reports 1998-VI, p. 2529, § 50). It is in the light of these criteria that it must be considered whether the penalties in question attracted the guarantees of Article 6 of the Convention, including access to court.

As to the first of these criteria, the Court considers that the Fiscal Criminal Act should clearly be regarded as belonging to criminal law. This is indicated, first, by the very name of the domestic legislation under which the offence committed by the applicants was punishable. Moreover, under Article 36 of the Act, certain provisions of the Criminal Code of 1969, laying down certain general notions of criminal responsibility, were applicable in proceedings concerning fiscal offences. However, this factor is of relative weight and serves only as a starting point (see Weber v. Switzerland, judgment of 22 May 1990, Series A no. 177, p. 17, § 31).

It is therefore necessary to examine the offence in question in the light of the second and third criteria mentioned above. In this respect, the Court recalls that these criteria are alternative and not cumulative: for Article 6 to apply by virtue of the words “criminal charge”, it suffices that the offence in question should by its nature be “criminal” from the point of view of the Convention, or should have made the person concerned liable to a sanction which, by its nature and degree of severity, belongs in general to the “criminal” sphere (see, inter alia , Lutz v. Germany, judgment of 25 August 1987, Series A no. 123, p. 23, § 55). This does not exclude that a cumulative approach may be adopted where the separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a “criminal charge” (see, among other authorities, the above-mentioned Garyfallou AEBE judgment, p. 1830, § 33; and Bendenoun v. France, judgment of 24 February 1994, Series A no. 284, p. 20, § 47).

In respect of the second criterion, the nature of the offence, the Court observes that the substantive provisions of the Fiscal Criminal Act concerning liability for fiscal crimes and offences were of a general application to all citizens and not only to a given group possessing a special status.

As to the third criterion, the severity of the penalty imposable and imposed, the Court notes that the offences at issue in the present case were punishable with a pecuniary penalty as set out in Article 41 of the Fiscal Criminal Act. This penalty could vary from PLN 20 to PLN 1,000. However, a pecuniary penalty could be substituted by up to 30 days' imprisonment in default of payment.

The penalties imposed on the applicants had a punitive character, which is customarily the distinguishing feature of criminal penalties. The applicants were ordered to pay penalties in the amount of 250 PLN or they risked 17 days' imprisonment in default. In the Court's view both the imposed and imposable sanctions were sufficiently severe to conclude that they could be characterised as criminal.

Having regard to the foregoing, the Court considers that the applicants were charged with a criminal offence. Consequently, the proceedings against them involved the determination of a criminal charge within the meaning of Article 6 of the Convention. That provision was, therefore, applicable.

2. As to the exhaustion of domestic remedies

a) The parties' submissions

The Government submitted that the applicants had not exhausted all domestic remedies as required by Article 35 § 1 of the Convention. In particular, the applicants had not availed themselves of the legal possibility of lodging a constitutional complaint with the Polish Constitutional Court. If the applicants had been of the opinion that Article 208 of the Fiscal Criminal Act denied them access to a court, in violation of Article 45 § 1 of the Constitution, then they should have availed themselves of the possibility of requesting the Constitutional Court to decide whether the provisions of that Article were in contravention of the Constitution.

It was true that the Constitutional Court was not competent to quash individual decisions, as its role was to rule on the constitutionality of normative acts. However, its decision to declare statutory or other provisions unconstitutional, gave rise to a right to institute reopening proceedings in an individual matter or to have a final individual decision quashed. Thus, should the applicants succeed before the Constitutional Court, they would be in a position to apply to the Minister of Finance, pursuant to Article 227 §§ 1 and 3 of the Fiscal Criminal Act as amended with effect on 17 October 1997, for the quashing of the individual decisions affecting their rights.

On the basis of the above submissions the Government concluded that an effective domestic remedy had been available to the applicants.

The applicants recalled that the very essence of their complaint was lack of access to court. They submitted that, by lodging a constitutional complaint, they would have only obtained a ruling as to whether or not the relevant provision of the Fiscal Criminal Act was in conformity with the Constitution. The Constitutional Court would not have ruled on their individual matter. Recourse to the constitutional complaint would not have resulted in the charges against them being reviewed by an independent and impartial tribunal within the meaning of the Convention. Therefore, the applicants concluded that the constitutional complaint could not be considered to be an effective remedy in their case.

b) The Court's assessment

The Court observes that, with effect as of 17 October 1997, Poland introduced a possibility for lodging individual constitutional complaints. A constitutional complaint can be lodged to challenge the constitutionality of a statute or other normative act which constituted the [legal] grounds for a final individual decision whereby a court or an administrative authority determined individual rights and obligations (cf. Article 79 of the Constitution). In previous cases, both the Court and the Commission have ruled that procedures before constitutional courts, to which individuals have direct access under domestic law, constitute a remedy to be exhausted before filing complaint with the European Court of Human Rights ( X. v. Germany , no. 8499/99, Commission's decision of 7 October 1980, 21 DR 176 (1980), Castells v. Spain , no. 11798/85, judgment of 23 April 1992, no. 236, §§ 24-32).

However, the Court observes that the Polish model of constitutional complaint is characterised by two important limitations: as to its scope and as to the form of redress it provides.

The first limitation is that constitutional complaint can only be lodged against a statutory provision and not against a judicial or an administrative decision as such. Therefore, recourse to the constitutional complaint can only be had in a situation in which the alleged violation of the Convention resulted from the application of a statutory provision which can reasonably be questioned as unconstitutional. Furthermore, such statutory provision had to constitute the direct legal basis for the individual decision in respect to which the violation is alleged. Thus, the procedure of constitutional complaint cannot serve as an effective remedy if the alleged violation resulted only from erroneous application or interpretation of a statutory provision which, in its content, is not unconstitutional. Furthermore, the constitutional complaint cannot serve as an effective remedy, if the provision in question has not constituted the legal basis for the final - judicial or administrative - decision, but merely was applied, at some stage of the main procedure, to take an interim or incidental measure ( Brudnicka v. Poland , no. 54723/00, decision of 16 January 2003).

It remains to be seen whether the constitutional complaint can be considered an effective remedy for the purposes of Article 35 § 1 of the Convention in a situation in which the alleged violation of the Convention resulted from the application - as a direct legal basis of a decision or act affecting the individual - of a legal provision which can reasonably be questioned as unconstitutional.

The second limitation of constitutional complaint under Polish law concerns the redress the constitutional complaint provides to the individual. The Court observes that, according to Article 190 of the Constitution, the only direct effect of the judgement of the Constitutional Court is the abolition of the statutory provision which has been found unconstitutional. Such judgement, however, does not automatically quash an individual decision in relation to the constitutional complaint which was lodged. Article 190 § 4 of the Constitution grants to the author of a successful constitutional complaint the right to request that the procedure in his / her case be reopened or otherwise revised, “in a manner and on the basis of principles specified in provisions applicable to the given proceedings”.

The Court recalls that, under Article 35 § 1 of the Convention, normal recourse should be had by an applicant to remedies that are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness.

It is true that the Polish constitutional complaint does not provide immediate redress, as the successful appellant will have to go through another step ‑ to request the reopening of his or her individual case or the quashing of the decision delivered in the case. However, since in the renewed examination of the case the authorities will have to disregard the law declared unconstitutional in the proceedings before the Constitutional Court and apply the law ‑ as interpreted in its judgment - to the particular facts of the individual case, the two-step remedy envisaged under Polish law is capable of providing redress. The same is true where the appellant could apply for the contested decision to be quashed, as the final result will be nullification of the decision issued in alleged violation of the Convention. Therefore, redress will be available for the grievances of an individual who has been a victim of a violation of his / her Convention rights by virtue of the application of an unconstitutional statutory provision, where procedural law in the specific area concerned provides for a clear right to have the procedure reopened or otherwise revised following a judgment of the Constitutional Court.

Having analysed the above-mentioned limitations of the Polish procedure of constitutional complaint, the Court observes that it can be recognised as an effective remedy, within the meaning of the Convention, only where: 1) the individual decision, which allegedly violated the Convention, had been adopted in direct application of an unconstitutional provision of national legislation; and 2) procedural regulations applicable for revision of such type of individual decisions provide for the reopening of the case or quashing the final decision upon the judgement of the Constitutional Court in which unconstitutionality had been found.

Consequently, the exhaustion of the procedure of the constitutional complaint should be required under Article 35 § 1 of the Convention in situations in which both above-mentioned requirements have been met.

Turning to the circumstances of this case, the Court observes that the applicants had the possibility to lodge the constitutional complaint and to argue that Article 208 of the Fiscal Criminal Act, providing for judicial review in respect of fiscal crimes but not fiscal offences, was not in conformity with Article 45 of the Constitution, the provision guaranteeing access to court.

Had the applicants brought a constitutional complaint, and had they been successful, they could have requested the Minister of Finance to quash the decision imposing fines, pursuant to Article 227 of the Fiscal Criminal Act, as amended by the Constitutional Court Act, thus nullifying the alleged violation of Article 6 of the Convention which consisted in the fact that the applicants were criminally convicted by a body which was not a court.

The applicants' case thus falls within the category of cases where constitutional complaint is in principle a remedy to be exhausted under Article 35 § 1 of the Convention.

The Court must also have regard, however, to an additional question arising in the present instance: the fact that during the period of two years after the date of the entry into force of the Constitution (i.e. until 17 October 1999), pursuant to the transitional provision of Article 239 § 1 of the Constitution, the Sejm was competent to “reject”, by two-third majority, a judgement of the Constitutional Court as to non-conformity with the Constitution of statutes adopted before the entry into force of the Constitution. Following the expiry of the two-years' transitional period the judgments of the Constitutional Court are no longer subject to reconsideration by the Sejm.

The Court has on many occasions recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see, among other authorities, Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1209, §§ 65-66, and Selmouni v. France [GC], no. 25803/94, §§ 74-77, ECHR 1999-V).

At the same time, the Court has considered that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Milošević v. the Netherlands (dec.), no. 77631/01, 19 March 2002, unreported).

It is true that a judicial remedy whose outcome is subject to discretionary rejection by the national legislative body cannot in principle be regarded as effective for purposes of Article 35 § 1 of the Convention. It is also true that at the time of the events complained of the transitional Article 239 § 1 of the Constitution was still in force.

The Court notes, however, it was controversial among legal writers in Poland whether the Sejm was also empowered to reject judgments delivered upon individual complaints. The Court notes that in its practice the Sejm never used its power to reject the Constitutional Court's judgments delivered in individual cases. It occasionally rejected judgments in cases brought by the Ombudsman or local governments.

Having regard to that practice and to the relatively short period when the Sejm had a power to reject a judgment of the Constitutional Court under the new Constitution, the Court considers that, even if the applicants might have had doubts as to the effectiveness of the constitutional complaint, they were not dispensed from employing that remedy.

In sum, the Court finds that in the present case, by failing to lodge constitutional complaint against Article 208 of the Fiscal Criminal Act, the applicants failed to exhaust remedies provided by Polish law.

It follows that this application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Mark Villiger Georg Ress Deputy Registrar President