THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32731/96 by Jerzy TROJANOWSKI and Tomasz ROGOSZ against Poland

The European Court of Human Rights ( Third Section ) sitting on 30 November 1999 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr W. Fuhrmann, Mr P. KÅ«ris, Mrs H.S. Greve, Mr K. Traja, judges ,

and Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 October 1995 by Jerzy Trojanowski and Tomasz Rogosz against Poland and registered on 22 August 1996 under file no. 32731/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Polish citizen s , born in 1967 and 1959 respectively and living in Gliwice, Poland.

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

In 1993, on the basis of a licence issued by the Ministry of Internal Affairs, the applicants founded a company specialising in the protection of property .

On 31 March 1994 the Katowice District Court convicted the applicants of one count of misappropriation and sentenced them to one year’s imprisonment and a fine of 20.000.000 (old) Polish zlotys, with two hundred days of imprisonment in default, and conditionally stayed enforcement of this sentence for a period of one year. The court further discontinued criminal proceedings concerning a charge of attempted misappropriation. Finally, the court imposed on the applicants an order prohibiting them from running, for a period of one year, the property protection business.

The court found that the applicants had first assisted the K. brothers in assigning to a certain J.C. the brothers ’ claim against T.Z., which allegedly arose out of a civil law contract but one which had not been certified by any judicial decision. Subsequently, they had obtained from J.C. an authorisation to secure realisation of this claim against T.Z. On 22 March 1993 they went to a warehouse located in S., owned by T.Z., and stated that they wished to purchase a substantial amount of merchandise. After they had chosen the merchandise, the seller asked them what form of payment they propose. When she was informed that they did not propose to pay because their intention was to set off the claim which J.C. had acquired against T.Z. against the price due for the merchandise, the seller called the police. After the police arrived and told the applicants that they should have recourse to civil proceedings, they left the warehouse. They subsequently went to two other shops owned by T.Z., located in K., where they declared their intention to buy certain merchandise and, after it had been loaded on their van, they again refused to pay for it, stating that the payment due would be set off against the claim J.C. had against T.Z.

The court noted that there had been no dispute as to the facts. The accused had not called in question the facts as established on the basis of testimony given by the witnesses, but they had disagreed with the legal assessment of the facts by the prosecuting authorities. They had stressed that their actions fell within the scope of a civil law contract of assignment of claims and the setting off of claims. The court considered that the accused had failed to take note of Article 58 of the Civil Code which provided for a legal act to be null and void if effected in order to circumvent the law, or if it was contrary to the law, or contrary to good faith. The court considered that, although the applicants were conversant with civil law, their actions could not be construed as the mutual setting off of contractual claims. Their intention had been to conclude a contract of purchase and to refuse payment, invoking the assignment of claims to J.C.. The court considered that their acts amounted to an offence of misappropriation punishable under Article 204 of the Criminal Code.

The court further held that the applicants had abandoned, of their own will, their intention to proceed with the purchase of merchandise in S. and thus considered that the part of the criminal proceeding relating to this incident should be discontinued.

The applicants appealed. They alleged that their defence rights had been breached in that the legal qualification of the charges against them had been changed after the court had closed the trial. They complained that after the trial had been closed, T. R. had not been given a possibility to address the court, that the court had made it impossible for them to lodge an appeal and that the proceedings had lasted too long. They also complained that B.Z., the wife of T.Z., had been questioned only on the last day of the trial and that the court had wrongly applied substantive law by considering that their acts could have amounted to offences punishable under criminal law, whereas they had only resorted to a well-established civil law contract of assignment of claims which could be effected regardless of the creditor’s lack of knowledge and of his approval thereof.

The Prosecutor likewise lodged an appeal, claiming that the District Court had wrongly applied substantive criminal law in that it had assessed the applicant’s offence as misappropriation, whereas it should have been qualified as fraud. He further argued that the part of the proceedings relating to the applicants’ acts committed in S. should not have been discontinued because, in fact, the applicants had not abandoned their intention of their own will, but only after the seller had called the police.

On 8 July 1994 the Katowice Regional Court quashed the judgment under appeal and ordered that the case be reconsidered by the lower court.

The court first examined the complaints submitted by the applicants to the effect that the procedural law had been breached in the proceedings. The court considered that the lower court had in fact informed the applicants about the possibility of reassessing the offences with which they had been charged before the trial had been closed. The court further found that after the trial had been closed, the accused, including T.R., had had an opportunity to address the court orally. The court considered the complaint about the impossibility of appeal to be incomprehensible because they had in fact lodged an appeal. The fact that B.Z. had been questioned on the last day of the trial did not amount to an irregularity, as the lower court had been under no obligation to question witnesses in any given order. As to the legal argument on mutual setting off allowed under civil law, the court noted that the only document purporting to be evidence of the existence of the claims of the K. brothers against T.Z. merely showed that the latter had had certain obligations towards the A. company, of which the brothers had been shareholders, whereas the assignment of claims had purportedly been concluded between the K. brothers and J.C. The court concluded that there had been no credible evidence to prove the existence of T.Z.’s original contractual obligation towards the K. brothers.

The court observed that the applicants had requested J.C. to allow their company to secure the payment of claims arising out of various contractual obligations for a commission of five per cent. Subsequently J.C. had signed a blank claim assignment form which was subsequently to be used by the applicants’ company. The court considered that such an assignment, in the absence of any details establishing the claims on which the applicants could seek payment, could not be regarded as valid under the applicable provisions of civil law.

The court noted that the civil law allowing for the setting off of claims is only applicable when the persons concerned were mutual debtors and creditors in relation to each other.

The court considered that the legal assessment of the offences at issue by the first instance court had been wrong in that they had been qualified as misappropriation. However, this offence requires that the perpetrator had the objects concerned in his or her possession and then refused to return them to their rightful owner. As this had not been the case, the legal assessment of the offences had to be amended. Accordingly the court quashed the judgment of the lower court.

On 20 February 1995 the Katowice District Court convicted the applicants of two charges qualified as a continuous offence of fraud, sentenced them to eighteen months’ imprisonment and a fine with imprisonment in default, and conditionally stayed enforcement of the sentence for a period of two years.

The court reiterated that, as the applicants had not called into question the facts of the case, the essence of the matter lay in the legal assessment of their acts. The court considered that during the material events the applicants had pretended that they wanted to purchase merchandise and that by doing so they had misled the sellers. However, their genuine intention was, first, to enter into possession of the merchandise and, after this had been attained, to refuse payment and to declare that they intended to set off the price due against the claims against T.Z. which had purportedly been assigned to J.C. The court considered that in the light of the evidence given by the sellers, they would not have concluded such a contract with the applicants had they been informed of their real intentions. Thus the court considered that the setting off of the claims had been null and void and that the applicants’ acts met the statutory requirements of the offence of fraud, as set out in Article 205 of the Criminal Code applicable at the material time.

The applicants lodged an appeal, complaining that the judgment was in breach of substantive law, in that the court had accepted that their acts amounted to a criminal offence punishable under Article 205 of the Criminal Code, whereas in fact they had acted in conformity with the law. The applicants did not reiterate the complaint they had raised in their appeal against the judgment of 31 March 1994 that the legal qualification of the charges against them had been changed after the first-instance court had closed the trial.

On 23 May 1995 the Katowice Regional Court amended the first instance judgment of 20 February 1995, reducing the sentence to a fine of 1.000 new PZL, with one hundred days’ imprisonment in default, whilst upholding the remainder.

The court first noted that the applicants did not call into question the findings of fact made by the lower court. The court noted that T.Z. had never been asked by the A. company to pay his alleged debt. Thus, the claim could not be considered as due. The court considered that, for contractual claims to be validly set off against each other, the law required that the claims should not only be undisputed but also due, which conditions did not obtain in the present case. Moreover, the applicants, when purchasing merchandise owned by T.Z., had acted with a fraudulent intent, because their real intention was to take possession of the merchandise and then to refuse payment. Thus, the applicants’ argument that they had validly concluded a purchase contract with T.Z. and subsequently set off J.C.’s assigned claim could not be accepted. Given the invalid purchase contract, there were no legal grounds on which the claims could be lawfully set off against each other.

COMPLAINTS

The applicants complain under Articles 6 and 7 of the Convention that the domestic courts breached their right to a fair trial in that they interpreted their acts as offences punishable under the criminal law. The courts disregarded the fact that the civil law allowed for the transfer of contractual claims, regardless of the debtor’s consent. They complain that the courts interpreted relevant provisions of civil law to the applicants ’ detriment and that they wrongly concluded that the applicants had committed a criminal offence, whereas their acts constituted a legitimate application of the provisions of civil contract law.

The applicants complain that their criminal conviction amounted to a breach of Article 13 of the Convention in that the appellate courts did not follow their legal arguments.

THE LAW

1. The applicants complain under Articles 6 and 7 of the Convention that the courts breached their right to a fair trial in that they interpreted their acts as offences punishable under criminal law.

Article 6 of the Convention in its relevant part reads :

“1. In the determination 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. “

The Court first recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45 and 46; the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, to be published in the Court’s official Reports ).

The Court also recalls that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see, among other authorities, the Garcia Ruiz v. Spain judgment of 21 January 1999, § 45, loc. cit.).

The Court reiterates that Article 6 of the Convention does not guarantee any particular content for civil "rights and obligations" in the substantive law of the Contracting States (the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, § 73, p. 32) and that, equally, Article 6 does not determine the substantive content of the criminal law of Contracting States.

Turning to the circumstances of the present case, the Court notes that the domestic courts of first and appellate instance carefully analysed the acts which gave rise to the criminal charges against the applicants in the light of the provisions of civil law. They examined the applicants ’ submissions that their acts should have been construed as a mutual setting off of claims, permissible under domestic law. However, the courts held that the purported assignment of claims to J.C. at the outset was unlawful since there had been no evidence that the debts in question had in fact existed. Consequently, the subsequent assignment of such claims to the applicants was equally invalid. The courts further considered that the applicants had acted with a fraudulent intent since their intention was to refuse payment for the merchandise . Therefore, their argument that they had validly concluded a purchase contract with T.Z. and subsequently set off J.C.’s assigned claim could not be regarded as persuasive.

The Court does not find that this reasoning was arbitrary. In particular, the Court notes that the applicants ’ arguments questioning the interpretation of substantive law were taken into consideration by the courts who answered them convincingly. The Court further notes that the applicants do not dispute the findings of fact by those courts .

The Court also observes that the District Court, in its judgment of 31 March 1994, emphasised that the applicants had a good knowledge of civil law. In their appeal against that judgment, the applicants raised various procedural complaints which had allegedly negatively affected the fairness of the criminal proceedings. However, the Regional Court, in its judgment of 8 July 1994, replied to all of them and concluded that they were ill-founded. Significantly, in their subsequent appeal, the applicants did not raise any further complaints of a procedural character, but limited themselves to challenging the interpretation of substantive law made by the first instance court. Considering the proceedings as a whole, the Court does not find any indication that the applicants were prevented in any way from effectively arguing their case before the courts or that the proceedings have been otherwise unfair .

It follows that this part of the application is manifestly ill-founded and to be rejected pursuant to Article 35 §§ 3 and 4 of the Convention .

2. The applicants also complain that their conviction was in breach of Article 7 of the Convention, which reads :

“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.”

The Court recalls that Article 7 of the Convention "does not merely prohibit retroactive application of the criminal law to the detriment of the accused; it also confirms, in a more general way, the principle of the statutory nature of offences and punishment (‘ nullum crimen, nulla poena sine lege ’).” The Court’s supervisory function, therefore, consists in making sure that, at the moment when the accused person performed the act which led to his or her subsequent criminal conviction, there was in force a legal provision which made that act punishable and that the punishment imposed did not exceed the limits set out by that provision. This supervisory function consists in considering whether the national court, in reaching its decision, has not unreasonably interpreted, and applied to the applicant, the domestic law concerned (Eur. Comm. HR, Dec. 14.12.1972, Coll. 43, p. 85).

The Court observes that the applicants were convicted on the basis of Article 205 of the Criminal Code as applicable at the material time. It notes that the sentence which was imposed on them did not exceed the limits fixed by this provision. On the whole, and in particular in the light of its above conclusions relating to the applicants ’ complaint under Article 6 of the Convention, the Court considers that this further complaint under Article 7 complaint is unsubstantiated. It must therefore be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention .

3. Finally, the applicants complain about their criminal conviction under Article 13 of the Convention, which provides for an effective remedy for a Convention breach. The Court notes that the requirements of Article 13 are less strict and are absorbed by those of Article 6 § 1 of the Convention (the Sporrong and Lőnnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 31, § 88). Having regard to the above finding in respect of the complaint under Article 6 § 1 of the Convention, the Court finds that the complaint under Article 13 likewise must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza Registrar              President