FIRST SECTION

DECISION

Application no. 45153/19 Dariusz Tytus PRZYWIECZERSKI against Poland

The European Court of Human Rights (First Section), sitting on 31 August 2021 as a Committee composed of:

Lorraine Schembri Orland, President, Krzysztof Wojtyczek, Ioannis Ktistakis, judges, and Liv Tigerstedt, Deputy Section Registrar,

Having regard to the above application lodged on 20 August 2019,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Dariusz Tytus Przywieczerski, is a Polish national who was born in 1946 and lives in Warsaw. He is represented before the Court by Mr P.J. Kruszyński , a lawyer practising in Warsaw.

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

3. The applicant was the Managing Director and Chairman of the Board of Directors of the Universal Foreign Trade Company, based in Poland. In 1998 he was charged with misappropriation of funds to the detriment of the Foreign Debt Service Fund ( Fundusz ObsÅ‚ugi ZadÅ‚użenia Zagranicznego ‑ “the FOZZ”).

4. Following a criminal trial, the applicant was convicted of misappropriation of the FOZZ’s property to a considerable value and sentenced to two and a half years’ imprisonment and a fine. He was also convicted of theft and sentenced to two and a half years’ imprisonment and a fine. The Warsaw Regional Court ( Sąd Okręgowy ) gave him a cumulative sentence of three and a half years’ imprisonment and a fine. He was also ordered to compensate the FOZZ for the damage caused.

5. After a set of appellate and cassation proceedings, on 1 June 2009 the Court of Appeal ( Sąd Apelacyjny ) finally upheld the applicant’s conviction. It only reduced the fine imposed for theft.

6. On 27 May 2010 the Supreme Court ( Sąd Najwyższy ) dismissed his cassation appeal as manifestly ill-founded.

7. The details regarding the proceedings before the domestic courts are set out in the Court’s judgment Chim and Przywieczerski v. Poland , nos. 36661/07 and 38433/07, §§ 6-98, 12 April 2018.

8. On 11 August 2007 the applicant lodged an application with the Court, alleging a violation of Article 6 § 1 of the Convention. He complained that Judge A.K. had been assigned to examine his case in violation of the domestic law, and that he had lacked impartiality. He also complained about the enactment of a law extending the limitation period of the crimes of which he had been accused.

9. In a judgment of 12 April 2018 the Court declared admissible the complaints under Article 6 § 1 of the Convention concerning the irregular assignment of Judge A.K. to the case, the alleged lack of impartiality and the alleged legislative interference in the case. The Court found a violation of that provision, insofar as the applicant’s right to be tried by a “tribunal established by law” was breached by Judge A.K.’s assignment to hear the case. It found no violation with respect to other claims raised by the applicant under the same provision.

10. As regards the claims in respect of pecuniary and non-pecuniary damage under Article 41 of the Convention, the Court rejected the claim for compensation for the alleged pecuniary damage and held that the finding of a violation constituted in itself sufficient just satisfaction for any non ‑ pecuniary damage which may have been sustained by the applicant. The applicant was awarded the sum of 5,000 euros (EUR) for costs and expenses sustained during the proceedings before the Court. The Court also stated the following:

“...

217. The Court has recently summarised the general principles relating to Article 46 of the Convention in its judgment in Moreira Ferreira v. Portugal (no. 2) ([GC], no. 19867/12, §§ 47-51, ECHR 2017 (extracts), with further references). Those general principles indicate that a finding by the Court of a violation of Article 6 of the Convention does not automatically require a reopening of the domestic criminal proceedings. Nevertheless, this is, in principle, an appropriate, and often the most appropriate, way of putting an end to the violation and affording redress for its effects (ibid., § 52). More specifically, where an individual has been convicted following proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or reopening of the case, if requested, represents in principle an appropriate way of redressing the violation. However, the specific remedial measures, if any, required of a respondent State in order for it to discharge its obligations under the Convention must depend on the particular circumstances of the individual case and be determined in the light of the Court’s judgment in that case, and with due regard to the Court’s case-law (ibid., § 50).

218. The Court notes that Article 540 § 3 of the Code of Criminal Procedure provides for the possibility of reopening criminal proceedings when such a need results from a judgment of the Court (see paragraph 105 above). The wording of that provision affords the domestic courts a margin of appreciation in that regard.

219. In the present case, the Court has found a violation of Article 6 § 1 as regards the principle of a “tribunal established by law” in respect of the first-instance court. It has also noted that the appellate courts dismissed the applicants’ arguments to the effect that a formal fault in the assignment of a trial court judge had affected the content of the trial court’s judgment. Having regard to the nature of its finding and the reasons underlying it (see paragraphs 138-142 above), the Court considers that, in the particular circumstances of the present case, it is not for this Court but for the domestic courts to decide whether a reopening of the criminal proceedings is necessary or not to give effect to the present judgment (compare Henryk Urban and Ryszard Urban v. Poland , no. 23614/08, §§ 56 and 66, 30 November 2010).”

11. The judgment of the Court became final on 12 July 2018, in accordance with Article 44 § 2 of the Convention.

12. On 29 August 2018, relying on article 540 § 3 of the Code of Criminal Procedure ( Kodeks postępowania karnego – “the CCP”), the applicant lodged an application for reopening of criminal proceedings with the Supreme Court. He argued that the judgments delivered in his case were incompatible with the Court’s judgment of 12 April 2018. Consequently, he requested the Supreme Court to quash the judgment of the Warsaw Regional Court of 29 March 2005, the judgment of the Warsaw Court of Appeal of 25 January 2006, the judgment of the Supreme Court of 21 February 2007, the judgment of the Warsaw Court of Appeal of 1 June 2009 and the decision ( postanowienie ) of the Supreme Court of 27 May 2010. He also requested that the judgment imposing on him a cumulative penalty ( kara łączna ) be quashed. He then requested that the reopened proceedings be discontinued, pursuant to Article 547 § 3 of the CCP taken in conjunction with article 17 § 1 (6) of the CCP, due to the charge having become time-barred.

13. The prosecution submitted that the application for reopening of the proceedings should be dismissed.

14. In a decision of 26 February 2019 the Supreme Court dismissed the applicant’s request.

15. It found that there had been no ground for reopening the proceedings. The Supreme Court held as follows:

“The reopening of criminal proceedings is necessary only where such need arises from a ruling of an international organ. The Supreme Court believes that in the case at hand no such need has arisen, since the judgment of the European Court of Human Rights concerning the [applicant’s] conviction does not result in an obligation to reopen the criminal proceedings during which the violation found had occurred.

None of the provisions of the Convention imposes an obligation to quash a final decision, when in its judgment the [European] Court found that that decision in question had been issued in violation of the Convention.

In Recommendation R(2000)2 adopted by the Committee of Ministers of the Council of Europe it has been indicated that in exceptional circumstances the re-examination of a case or reopening of proceedings have proved the most efficient, if not the only, means of achieving restitutio in integrum . Thus, member States should ensure the availability of such measures in cases where... the judgment of the Court leads to the conclusion that:

a. the impugned domestic decision is on the merits contrary to the Convention, or

b. the violation found is based on procedural errors or shortcomings of such gravity that serious doubt is cast on the outcome of the domestic proceedings complained of.

...

In its judgment of 11 July 2017 in the case of Moreira Ferreira v. Portugal (no. 2) , case no. 19867/12, the Court’s Grand Chamber recalled that it has no jurisdiction to order the reopening of domestic proceedings (§§ 48-49 of the judgment).

...

It reaffirmed that in case of finding a violation of Article 6 of the Convention, the assessment of a need to reopen the proceedings must be carried out with regard to the particular circumstances of the individual case and be determined in the light of the Court’s judgment in that case, and with due regard to the Court’s case-law (§ 50 of the judgment).

The analysis of the Court’s jurisprudence as to the effects of its judgments leads to the following conclusions:

Firstly, if the Court believes a specific remedy to be the only means by which its judgment should be executed, it explicitly states this in the part of its ruling concerning the interpretation of Article 46 of the Convention.

Secondly, reopening of criminal proceedings is sometimes suggested by the Court as the most appropriate remedy to erase the determined violation of the Convention (see, for instance, judgment Demski v. Poland , case no, 22695/03, 4 November 2008, concerning the defendant’s right to put questions to the prosecution’s witnesses; judgment Pohoska v. Poland , case no. 33530/06, 10 January 2012).

...

Thirdly, considering the need to secure the finality of a ruling, undoubtedly constituting a vital element of legal certainty, the Court sometimes accepts the ruling out of the possibility of reopening the criminal proceedings, following its judgment.”

16. The Supreme Court also referred to the Court’s decision in the case of Henryk Urban and Ryszard Urban v. Poland, no. 23614/08 , §§ 56 and 66 , 30 November 2010, where it was explicitly stated that no need to order the reopening of criminal proceedings had arisen.

17. It concluded that the Court did not explicitly order the criminal proceedings to be reopened in the applicant’s case. Moreover, the Supreme Court held that a violation of the right to be heard by a “tribunal established by law” had no impact on the outcome of the proceedings. Although the breach concerned an essential element of the trial, it did not invalidate the findings regarding the applicant’s criminal liability. In particular, the Supreme Court referred to the fact that the Court found no violation with respect to his claims regarding the alleged lack of impartiality of Judge A.K. No separate assessment of the merits had been conducted.

18. Lastly, the Supreme Court – referring to its own jurisprudence – held that the designation of Judge A.K. to the bench did not constitute an automatic ground for appeal ( bezwzględna przyczyna odwoławcza ) which would justify the final judgment being quashed. In this respect it distinguished Judge A.K.’s unlawful assignment to the bench from other cases, where the Court determined the existence of other factors, affecting the overall fairness of the proceedings or judicial independence. The Supreme Court recalled the case Richert v. Poland , no. 54809/07, 25 October 2011, where a violation of a right to have a case heard by “a tribunal established by law” had been found because a district court judge was assigned to a case before the regional court without a proper delegation. That shortcoming constituted an “automatic ground for appeal”.

19. On 20 March 2019 the Polish Government submitted an action report to the Committee of Ministers concerning the execution of the Court’s judgment of 12 April 2018. They confirmed that the amount of just satisfaction awarded to the applicant had been paid on 5 October 2018.

20. As regards individual measures, the Government pointed out that the applicant’s request for reopening of the proceedings had been dismissed by the Supreme Court in its decision of 26 February 2019. The Government summarised the Supreme Court’s reasons in its submissions.

21. With respect to the general measures taken, the Government explained that the judgment had been translated into Polish and disseminated among all courts and prosecutors’ offices. It also informed the Committee of Ministers of the appointment of coordinators for international cooperation and human rights in every judicial district, supervisory activities performed by the Ministry of Justice and amendments to the domestic law, which were aimed at eliminating the risk of similar violations as those identified by the Court in the judgment Chim and Przywieczerski (cited above).

22. In its resolution CM/ResDH(2019)160, adopted on 10 July 2019, the Committee of Ministers satisfied itself that all the measures required under Article 46 § 1 of the Convention have been adopted, declared that the respondent State had exercised its functions under Article 46 § 2 of the Convention and closed the examination of the case.

23. The relevant domestic law and practice regarding the exclusion of a judge, assignment of judges to cases, grounds for appeal and reopening of criminal proceedings were set out in the Court’s judgment Chim and Przywieczerski , cited above, §§ 100-105.

COMPLAINTS

24. The applicant complained under Article 6 § 1, separately and taken in conjunction with Article 46 of the Convention, that the Supreme Court, by failing to consider properly the Court’s judgment of 12 April 2018, had dismissed his application for reopening of criminal proceedings. As a consequence of the said dismissal, he had been denied the right to a fair hearing by an independent and impartial tribunal, as required by Article 6 § 1. He also submitted that the respondent State had failed to execute properly the Court’s judgment of 12 April 2018.

THE LAW

25. The applicant first alleged that the Supreme Court had failed to consider the reasoning of the Court presented in its judgment of 12 April 2018. He submitted that the refusal to have his case heard by a “tribunal established by law” had not been rectified during the proceedings before the domestic court.

26. Article 6 § 1 in its relevant part provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

27. The Court reiterates that Article 6 § 1 is normally inapplicable to extraordinary proceedings, such as those concerning the reopening of criminal proceedings concluded by a final judgment. In principle, only proceedings conducted after the request for their reopening has been granted can be regarded as aimed at determining a criminal charge (see, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 60-61, 11 July 2017, and Löffler v. Austria , no. 30546/96, §§ 18-19, 3 October 2000). The rationale behind this is that a person requesting that the criminal proceedings in which he or she was convicted be reopened is no longer charged with a crime. Consequently, the domestic court ruling on such a request does not normally determine a criminal charge against the requesting individual. However, should such extraordinary remedy lead directly to a reconsideration of the merits of the case or amendment of the final judgment, Article 6 § 1 would become applicable ( Moreira Ferreira (no. 2) , cited above, §§ 60-67, and Vanyan v. Russia , no. 53203/99, § 58, 15 December 2005).

28. Furthermore, in Moreira Ferreira (no. 2) (cited above, §§ 70-72) the Court found that the level of scrutiny performed by a domestic court, with the task of hearing a request on the reopening of proceedings, in particular when carrying out a re-examination on the merits, may be regarded as an extension of the original proceedings.

29. Turning to the present case, the Court observes that the Supreme Court, in its decision of 26 February 2019, did not carry out a re ‑ examination of the merits of the case. In particular, it did not scrutinise the accuracy of the assessment of collected evidence or otherwise evaluate the appropriateness of the applicant’s conviction. Nevertheless, the Court notes that the Supreme Court evaluated whether Judge A.K.’s unlawful assignment to the bench may have had any potential impact on the outcome of the case. In its reasoning, it principally relied on the Court’s assessment regarding the fairness of the applicant’s proceedings and Judge A.K.’s impartiality and found that the designation of Judge A.K. to the bench had no impact on the outcome of the proceedings (see paragraph 17 above). Moreover, the Supreme Court distinguished Judge A.K.’s unlawful assignment to the bench from other cases, where the Court determined the existence of other factors, affecting the overall fairness of the proceedings or judicial independence (see paragraph 18 above).

30. The scrutiny performed by the Supreme Court essentially concerned procedural shortcomings of the proceedings conducted before the first ‑ instance court and did not refer to any evidence, witness testimony or otherwise assess the accuracy of the applicant’s conviction (compare Moreira Ferreira (no. 2) , cited above, § 70).

31. Moreover, unlike in the case of Moreira Ferreira (no. 2) (cited above, §§ 54-55), the Supreme Court did not carry out its own interpretation of the Court’s judgment and accepted that the findings of the Court of Appeal (with regard to Judge A.K.’s assignment to hear the applicant’s case) were incompatible with the Court’s judgment of 12 April 2018.

32. Consequently, the Court concludes that the proceedings conducted before the Supreme Court and finalised by its decision of 26 February 2019 did not constitute an extension of the applicant’s criminal trial. It follows that the complaint under Article 6 § 1 must be declared inadmissible for being incompatible ratione materiae in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

33. Under Article 46 of the Convention the applicant complained that the refusal to reopen his criminal proceedings had essentially led to a “denial of justice”. He submitted that such remedy had been the sole measure which could ensure that his right to have his criminal charge determined by a “tribunal established by law” was respected.

34. Article 46 of the Convention in relevant parts reads as follows:

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

...”

35. The Court reiterates that it does not have jurisdiction to order, in particular, the reopening of the proceedings (see Moreira Ferreira (no. 2) , cited above, §§ 48-49 , and Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 89, ECHR 2009) . The question of compliance by the Contracting States with the Court’s judgments falls outside the Court’s jurisdiction unless it is raised in the context of the “infringement procedure” provided for in Article 46 §§ 4 and 5 of the Convention ( Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 33, ECHR 2015, and Moreira Ferreira (no. 2) , cited above, § 102). Rather, under the second paragraph of Article 46, the function of supervising the execution of judgments is entrusted to the Committee of Ministers.

36. In this context, the Court takes note of the resolution adopted by the Committee of Ministers on 10 July 2019, in which it declared that Poland has exercised its functions under Article 46 § 2 of the Convention and closed the examination of the case (see paragraphs 19-22 above).

37. The Court further notes that in its judgment of 12 April 2018 it considered that it was for the domestic courts to decide whether the reopening of the criminal proceedings would be necessary to give effect to its judgment (see paragraph 10 above).

38. Accordingly, in so far as the applicant has complained of a failure to remedy the violation of Article 6 § 1 found by this Court in its judgment of 12 April 2018, the Court finds that it does not have jurisdiction ratione materiae to deal with this complaint. Consequently, it is inadmissible and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 September 2021.

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Liv Tigerstedt Lorraine Schembri Orland Deputy Registrar President