Communicated on 10 November 2014

FOURTH SECTION

Application no. 35778/07 Grzegorz ŻEMEK against Poland and 2 other applications (see list appended)

STATEMENT OF FACTS

The first applicant, Mr Grzegorz Å» emek, is a Polish national, who was born in 1946 and lives in Warsaw. He is represented before the Court by M r G. Majewski, a lawyer practising in Warsaw.

The second applicant, Ms Janina Chim, is a Polish national, who was born in 19 50 and lives in Warsaw . She is represented before the Court by Mr P . Kruszy Å„ ski , a lawyer practising in Warsaw.

The third applicant, Mr Dariusz Przywieczerski, is a Polish national, who was born in 1946 and lives in St. Petersburg, United States of America. He is represented before the Court by Mr P. Korzeniowski and Ms C.L. A. de Sitter, lawyer s practising respectively in Warsaw and the Hague.

A. The circumstances of the case

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

1. The Fund for Service of the Foreign Debt (“the FOZZ”)

The Fund for Service of the Foreign Debt ( Fundusz Obsługi Zadłużenia Zagranicznego ; “the FOZZ ” ) was established by the Act of P arliament on 21 February 1989. It was a State entity with a legal personality whose liabilities were guaranteed by the State Treasury. The task of the FOZZ was to accumulate financial assets for the servicing of Poland ’ s foreign debt and the administration of those assets. The financial assets of the FOZZ were to be used for repayment of Poland ’ s foreign debt.

The F OZZ was managed by its Director General who had a statutory authority to independently represent the Fund and enter into obligations on its behalf. The first applicant was appointed the F OZZ ’ s Director General on 16 March 1989. The second applicant was initially appointed the Head of Section of Domestic Operations and later the Dep uty Director General of the FOZZ.

2. Criminal proceedings against the applicants

The criminal proceedings in the c ase were instituted following a complaint filed lodged by J.T., a German national at the Polish Co nsulate in Cologne.

The investigation was opened on 7 May 1991. On 18 February 1993 the Warsaw Regional Prosecutor filed a bill of indictment with the Warsaw Regional Court. He charged the first and second applicants as well as a certain K . K . with misappropriation of public property and mismanagement. On 27 September 1993 the court decided to return the bill of indictment to the prosecutor in order to rectify certain shortcomings in the investigation.

On 19 January 1998 the prosecutor filed an updated bill of indictment with the Warsaw Regional Court.

The first applicant was charged with misappropriation of the F OZZ ’ s property of a significant value committed with other persons as a continuous offence between March 1989 and July 1991 (Article 201 in conjunction with Article 58 of the Criminal Code of 1969). The first applicant w as also charged with failure to perform his duties to the detriment of the FOZZ . The second applicant was charged with misappropriation of the F OZZ ’ s property of a significant value committed with other persons as a continuous offence between March 1989 and February 1991 (Article 201 in conjunction with Article 58 of the Criminal Code of 1969). She was further charged with failure to perform her duties to the detriment of the F OZZ .

The third applicant , a businessman, was charged with misappropriation of 1,557,178.05 USD to the detriment of the F OZZ committed with other persons as a continuous offence between July and September 1990 (Article 201 in conjunction with Article 58 of the Criminal Code of 1969).

There were four other accused in the case.

3. The trial court ’ s proceedings

The trial court set the first hearing for 4 October 2000 (case no. VIII 37/98) . In the autumn of 2011 the judge presiding the trial was appointed the Minister of Justice and subsequently the trial had to start de novo .

On 19 October 2001 the President of the 8 th Division of the Warsaw Regional Court requested the President of the Regional Court to assist the Division in finding a Regional Court judge from appellate divisions who could hear the applicants ’ case. The President of the Regional Court referred the request to the Board of the Regional Court ( kolegium s ą du ). The Board decided that Judge A.K. should be moved to the 8 th Criminal Division with the effect from 15 November 2001 and that the same judge should examine the case VIII K 37/98.

Subsequently, the President of the Regional Court informed Judge A.K. that pursuant to the Board ’ s decision he was reassigned from 10 th Appellate Division to 8 th Criminal Division with a view to examining the case no. VIII K 37/98. On 22 November 2001 the President of the 8 th Criminal Division assigned Judge A.K. to the case no. VIII K 37/98 “in accordance with the decision of the Board of the Warsaw Regional Court”.

The new panel of the trial court was composed of Judge A.K., acting as the president and two lay judges. The first hearing before the new panel was set for 30 September 2002.

On this date Judge A.K. allowed the journalists to record the images and identity of the defendants. He stated that “in this case there are 40 million victims and the society has the right to know the images and personal data of the defendants”.

The trial court held 224 hearings. It hear d 314 witnesses and relied on a number of expert reports in accountancy and more than 1000 documents.

On 8 February 2005 the trial court closed the hearing of the evidence in the case.

On 29 March 2005 the Warsaw Regional Court rendered its judgment.

It convicted the first applicant o f misappropriation of the F OZZ ’ s property of a considerable value which he had committed with other persons between March 1989 and December 1991 (Article 284 § 2 in conjunction with Articles 12 and 294 § 1 of the Criminal Code). The trial court held that in his capacity of the Director General the first applicant had misappropriated the financial assets of the F OZZ in the overall amount of 41,573,029.69 USD, 9,205,613.32 DEM, 125,000 BEF and 47,500 PLN to his o wn and other entities ’ benefit (point I of the operative provisions of the judgment). With regard to this offence the trial court sentenced the first applicant to eight years ’ imprisonment and a fine.

The trial court also convicted the first applicant of failure to perform his duties and of exceeding his authority as the Director General of the Fund between March 1989 and September 1990 under Article 217 § 2 in conjunction with Article 4 of the Criminal Code of 1969. As a result of these failings the F OZZ sustained damage no smaller than 47,570,731.99 PLN ( point I I of the operative provisions of the judgment ) . The trial court found, inter alia , that the first applicant had entered into transactions with various companies and used the assets of the F OZZ in the undertakings unrelated to the objectives of the F OZZ . With regard to this offence the trial court sentenced the first applicant to five years ’ imprisonment.

The trial court convicted the second applicant of misappropriation of the F OZZ ’ s property of a considerable value which she had committed with other persons between March 1989 and December 1991 (Article 284 § 2 in conjunction with Articles 12 and 294 § 1 of the Criminal Code). The trial court held that in her capacity of first the Head of Section of Domestic Operations and later of the Deputy Director General the second applicant had misappropriated the financial assets of the F OZZ in the overall amount of 3,779,835.75 USD to her own and other entities ’ benefit ( point I II of the operative provisions of the judgment ) . With regard to this offence the trial court sentenced the second applicant to five years ’ imprisonment and a fine.

The trial court further convicted the second applicant of failure to perform her duties and of exceeding her authority between March 1989 and July 1990 under Article 217 § 2 in conjunction with Article 4 of the Criminal Code of 1969. As a result of these failings the F OZZ sustained damage no smaller than 21,068,680.58 PLN ( point I V of the operative provisions of the judgment ). With regard to this offence the trial court sentenced the second applicant to three years ’ imprisonment and a fine.

The trial court convicted the third applicant of misappropriation together with the first and second applicants of the F OZZ ’ s property of a considerable value (503,000 USD) under Article 284 § 2 in conjunction with Article 294 § 1 of the Criminal Code (point V I.1 of the operative provisions of the judgment). With regard to this offence the trial court sentenced the third applicant to t wo and a half years ’ imprisonment and a fine.

It further convicted the third applicant of theft of the F OZZ ’ s property of a considerable value (1,074,120 USD) together with other persons under Article 278 § 1 in conjunction with Article 294 § 1 of the Criminal Code ( point VI. 2 of the operative provisions of the judgment). With regard to this offence the trial court sentenced the third applicant to two and a half years ’ imprisonment and a fine.

The trial court sentenced the first applicant to a cumulative penalty of nine years ’ imprisonment and the second applicant to a cumulative penalty of six years ’ imprisonment. The third applicant was sentenced to a cumulative penalty of three and a half years ’ imprisonment and a fine. The trial court ordered all applicants to compensate damage caused to the F OZZ . The first two applicants were further ordered to pay compensation to the State Treasury.

The Law of 3 June 2005 on amendments to the Criminal Code, which extended limitation periods, entered into force on 3 August 2005 (“the 2005 Act”).

4. The applicants ’ appeals

All three applicants alleged that Judge A.K. had been assigned to their case in breach of Articles 350 § 1(1) and 351 § 1 of the Code of Criminal Procedure (“the CCP ”) . They argued that since the composition of the trial court was unlawful the appellate court should quash the lower court ’ s judgment in its entirety. All three applicants further alleged that Judge A.K. had been involved in the passing of the 2005 Act which amounted to a breach of their right to a fair trial by an impartial tribunal. The third applicant alleged that Judge A.K. had lacked impartiality, referring to the statement made by the judge about the 40 million of citizens wh o were the victims of the case and certain passages in the reasoning which showed that the judge had negative attitude to the third applicant. In the latter respect the third applicant referred to the passage from the reasoning that “D. Przywieczerski played another, more important role in the activity of the FOZZ than that imputed to him in the judgment”.

All three applicants also alleged that the trial court had infringed the provisions of criminal procedure and the rights of the defence in various respects.

5. The Court of Appeal ’ s judgment

In the course of the appellate proceedings, the Warsaw Court of Appeal referred a legal question to the Supreme Court on the interpretation of the provisions of the CCP concerning the assignm ent of a trial court judge to a given case and the consequences of the irregular composition of the trial court for the outcome of the appellate proceedings.

On 17 November 2005 the Supreme Cou rt adopted Resolution no. I KZP 43/05 and held that the assignment of the members of the court in breach of the rules specified in Articles 350 § 1 and 3 51 § 1 of the CCP constituted a relative ground of appeal ( wzgl ę dna przyczyna odwo ł awcza ) referred to in Article 438 (2) of the CCP and did not amount to the nullity of the proceedings . The Supreme Court concurred with the Court of Appeal ’ s finding that the assignment of Judge A.K. to the case had been in breach of the relevant rules of the CCP. In consequence, the appellate court was required to examine whether the alleged breach of the rules concerning the composition of the trial court could have influenced the content of the judgment .

The Warsaw Court of Appeal rendered its judgment on 25 January 2006. It quashed the first and the second applicant ’ s conviction i n respect of the offence of failure to perform their duties and of exceeding their authority ( points II and IV of the operative provisions of the trial court ’ s judgment).

The Court of Appeal further quashed the third applicant ’ s conviction in respect of the ft of the F OZZ ’ s property of a considerable value ( point VI.2 of the operative provisions of the trial court ’ s judgment). Th e Court of Appeal accordingly quashed the trial court ’ s judgment in respect of the cumulative penaltie s imposed on the applicants. It discontinued the proceedings in part concerning the quashed convictions.

The Court of Appeal lowered the fines imposed on the three applicants. It upheld the trial court ’ s judgment for the remainder.

The principal reason for the partial quashing of the trial court ’ s judgment was the Court of Appeal ’ s refusal to apply the 2005 Act to some of the offences imputed to the applicants (details follow below).

The Court of Appeal analysed the circumstances of the assignment of Judge A.K. to the case. It found that the decision of the President of the 8 th Division of the Regional Court to assign Judge A.K. to the case was simply a consequence of the Board of the Regional Court ’ s decision and not a sovereign act of the President of the Division in the exercise of his power under Article 350 § 1 (1) of the CCP. Having regard to the above, the Court of Appeal found that the statutory rules on the assignment of judges set out in Articles 350 § 1 (1) and 351 § 1 of the CCP had not been respected.

Having regard to the Supreme Court ’ s Resolution of 17 November 2005 , the Court of Appeal considered the effec t of the breach of Articles 350 § 1 (1) and 351 § 1 of the CCP on the content of the trial court ’ s judgment.

The Court of Appeal examined the circumstances concerning the enactment of the 2005 Act extending limitation period s which was relevant for some of the charges against the applicants.

The bill was introduced by a group of MPs from the Law and Justice parliamentary group on 21 February 2005, i.e. before the date of delivery of the trial court ’ s judgment on 29 March 2005. The bill made a direct reference to the pending case of the applicants. It included the following passage:

“It should be underlined that the urgency of this matter [bill] is also justified by the necessity to save the so-called FOZZ scandal before the risk of the lapse of the limitation period. The [trial] court ’ s efforts to give judgment could be thwarted at the last stage of the judicial proceedings ... ” („ Podkre ś li ć należy, ze pilność tej sprawy podyktowana jest również koniecznością uratowania przed zagrożeniem przedawnienia tzw. afery FOZZ. Wysiłki s ą du zmierzające do wydania wyroku mogą zostać zniweczone na ostatnim etapie post ę powania s ą dowego ... ”).

These intentions of the drafters were confirmed during debates in the Extraordinary Committee on the Amendments to Criminal Codifications of the Sejm (lower chamber of the Parliament) and at the plenary session of the Sejm. One of the supporters of the draft was MP Z. Ziobro who also acted as the rapporteur in the course of parliamentary work on the bill. Judge A.K. served at the time as the ex pert of Extraordinary Committee o n the recommendation of MP Z. Ziobro.

The Court of Appeal observed that a judge could be appointed a member of the Minister of Justice ’ s Criminal Law Codification Commission in accordance with the rules and procedures set out in relevant Ordinance of the Council of Ministers. However, it was prohibited for a judge to act in the parliamentary work on the criminal codification as an expert designated by an MP, parliamentary group or a political party. By doing so a judge would in fact act as a lobbyist disclosing his political preferences. Such conduct was contrary to Article 178 § 3 of the Constitution and the provisions of the Organisation of the Courts Act.

The Court of Appeal, having regard to the parliamentary records, established that Judge A.K. had actively sought to influence the amending legislation to the detriment of the defendants while at the same time he examined their case at the trial.

The Court of Appeal held as follows:

“In the present case, ... on the basis of the circumstances related to the passing of the 2005 Act established in the course of the appellate proceedings , the Court of Appeal reached a conclusion that the regulations contained in the said Act had been adopted by the legislator, in particular, in order to apply them to the pending proceedings in a specific case indicated in the reasons for the bill, and in addition, the judge hearing the case took part in the process of amending the law as an expert, thus revealing his lack of impartiality. Having regard to the foregoing, the application of the 2005 Act to the present case would have patently violated the standards set out in Articles 10 and 45 § 1 of the Constitution and Article 6 of the Convention in part concerning the right to a fair trial before an impartial tribunal and would have had obvious influence on the relevant part of the judgment.”

The Court of Appeal found that in respect of the offence of failure to perform his duties and of exceeding his authority imputed to the first applicant and in respect of the offence of theft of the F OZZ ’ s property of a considerable value imputed to the third applicant the limitation period expired on 12 September 2005. It held accordingly that this part of the trial court ’ s judgment had to be quashed and the proceedings had to be discontinued.

Having regard to the foregoing, the Court of Appeal allowed the arguments of the applicants concerning the flaws in the assignment of Judge A.K. to the case and the efforts of this judge to amend the legislation applicable to the case in the course of the trial and at the stage of a formal examination of the appeal. In the appellate court ’ s view, the applicants rightly pointed out that by accepting the role of the expert for the proponents of the bill amending the Criminal Code (extending limitation periods) Judge A.K. had revealed his partiality. At the same time, the parliament, failing to respect the rule of law, encroached upon the competences of the judicial authorities and flouted the guarantees of a fair trial.

The Court of Appeal underlined that the above shortcomings affected only part of the trial court ’ s judgment, namely the offences imputed to the first and the third applicants (points II and VI.2 of the operative provisions of the trial court ’ s judgment) in respect of which the limitation period was to expire on 12 September 2005. Only in this part there existed logical and irrefutable causal link between the error in the assignment of Judge A.K. and his subsequent efforts to pass legislation amending the law to the detriment of the defendants in the case examined by him. Further, the Court of Appeal quashed for the same reason the conviction imputed to the second applicant for the offence specified in point IV of the operative provisions of the trial court ’ s judgment.

In respect of the remainder of the case, the Court of Appeal did not establish the influence of the above shortcomings on the content of the trial court ’ s judgment. Accordingly, the appellate court did not accept the submissions of the applicants which were aimed at the quashing of the judgment of the trial court in its entirety.

With regard to certain passages in the reasoning disclosing the negative attitude of Judge A.K. to the third applicant, the Court of Appeal found that many of them had been opinions based on facts and therefore could not be seen as revealing the lack of impartiality towards the third applicant. However, the Court of Appeal agreed with the defence that the passage about the important role of the third applicant in the activity of the FOZZ had not been facts-based and therefore was inappropriate. However, this statement was related to some hypothetical behaviour of the third applicant which was unrelated to the charges against him and in any event did not influence the content of the judgment. The third applicant did not substantiate either how did the passage related to the financing by FOZZ of the political parties disclosed the negative attitude of Judge A.K., when the said issue was not examined by the trial court. With regard to the allegation raised by the third applicant of the lack of impartiality of Judge A.K. in connection with his statement about the 40 million of the victims in the case, the Court of Appeal found it to be groundless. It considered that this statement had to be seen in the proper context in which it was made, namely the trial court ’ s determination to elucidate all circumstances of the case.

The Court of Appeal dismissed the remainder of the applicants ’ appeals.

6. Cassation appeals

The Prosecutor General filed a cassation appeal against the Court of Appeal ’ s judgment in part concerning the discontinuation of the proceedings against the first and the third applicants (point s II and VI.2 of the operative p rovisions o f the trial court ’ s judgment) . The Prosecutor General argued that the Court of Appeal had erred in holding that the application of the 2005 Act to the above offences would have breached Articles 10 and 45 § 1 of the Constitution and Article 6 of the Convention on account of the lack of impartiality of Judge A.K.. In his view, this finding of the Court of Appeal resulted in unjustified discontinuation of the proceedings in the relevant part.

All three applicants filed cassation appeals. They challenged the Court of Appeal ’ s finding that the uncontested breach of the rules concerning the assignment of Judge A.K. to their case could not have influenced the content of the trial court ’ s judgment. In their submission, the assignment of Judge A.K. in flagrant breach of Articles 350 § 1 and 351 § 1 of the CCP resulted in their case not being examined by an impartial judge.

They further challenged the Court of Appeal ’ s finding that the established lack of impartiality of Judge A.K. resulting from his active involvement in the passing of the 2005 Act could only be relevant for some of the offences imputed to them. In their view, the lack of impartiality of Judge A.K. affected the whole trial and therefore the trial court ’ s judgment should have been quashed in its entirety.

All three applicants restated their allegations in respect of the various infringements of the rights of the defence and the provisions of criminal procedure committed by the trial court which had allegedly not been duly examined by the Court of Appeal.

7. The Supreme Court ’ s judgment

On 21 February 2007 the Supreme Court gave judgment. It allowed the cassation appeal of the Prosecutor General and quashed the Court of Appeal ’ s judgment with regard to the first and the third applicant and remitted the case to the appellate court in this part. It dismissed cassation appeals filed by the three applicants.

The Supreme Court examined the applicants ’ allegation that the assignment of Judge A.K. in flagrant breach of Articles 350 § 1 and 351 § 1 of the CCP resulted in their case not being examined by an impartial judge. It confirmed that Judge A.K. had been assigned to the applicants ’ case in breach of the above rules. However, having regard to i ts Resolution no. I KZP 43/05 of 17 November 2005, the Supreme Court noted that it was necessary to examine whether the above flaw had influenced the content of the trial court ’ s judgment. For this to be the case the judge would have to be interested in reaching a desired outcome of the case by violating the rules of criminal procedure.

In this context, the Supreme Court first noted that a behaviour which could raise doubts about the lack of impartiality of a judge hearing the case would have to arise up until the delivery of the judgment by this judge. Secondly, it noted that the mere determination of the court in striving to conclude the proceedings before the expiry of the limitation period was not indicative of its partiality. The lack of impartiality of a judge had to materialise itself in restricting the procedural rights of a party, improper gathering of evidence or in imposing an unjust sentence. However, the applicants did not indicate concrete examples of such shortcomings but limited themselves to general statements. They merely referred to one statement made by Judge A.K. about “the 40 million of victims”, the passage in the reasoning of the trial court related to the financing by FOZZ of the political parties and the antagonism of political parties with which Judge A.K. and the third applicant respectively sympathised with.

With regard to the statement about “the 40 million of victims” the Supreme Court paid attention to the context in which it had been made. This statement was made at the first trial hearing on 30 September 2002 where Judge A.K., the president of the trial court, allowed the journalists to disseminate the images and information about identity of the defendants. He stated that “in this case there are 40 million victims and the society has the right to know the images and identity of the defendants”. In the Supreme Court ’ s view, the analysis of this statement did not permit to conclude that Judge A.K. had identified himself with the victims in the case under his examination. The statement indicated that it was the society that was entitled to know the images of the defendants. For the Supreme Court, this statement was another unnecessarily pompous statement of Judge A.K. which of itself did not prove his lack of his impartiality. It also noted that the defence did not react to this statement by requesting disqualification of the judge. Likewise, before the start of the trial the defence did not raise the issue of a possible negative attitude of any of the members of the trial court to the third applicant or the Alliance of the Democratic Left . With regard to the passage related to the financing by FOZZ of the political parties, the Supreme Court noted that it did not point to the lack of impartiality of Judge A.K. The judge concluded in the reasoning that this issue had been irrelevant for the determination of the case. Having regard to the foregoing, the Supreme Court did not share the applicants ’ arguments about the lack of impartiality of the trial court.

Next, the Supreme Court examined the applicants ’ arguments related to the lack of impartiality of Judge A.K. which allegedly ensued from his involvement in the passing of the 2005 Act. In this respect, the Supreme Court noted that the bill had been introduced on 21 February 2005 and that only from this moment in time one could talk about the involvement of Judge A.K. in the process. The bill was introduced after the trial court had closed the h earing of evidence in the case ( 8 February 2005 ) and at the time when the trial was at the advanced stage of closing statements by the parties. The Supreme Court further noted that the parliamentary work on the bill effectively started in April 2005 which was after the trial court had delivered its judgment (29 March 2005). Accordingly, it could not be said that the trial hearing coincided with the parliamentary work on the bill. Furthermore, the 2005 Act entered into force on 3 August 2005 and the expiry of the limitation period with regard to those offences in respect of which the proceedings had been discontinued took effect on 12 September 2005. Accordingly, the consequences of the expiry of the limitation period and the entry into force of the law which extended limitation periods took place in the course of the appellate proceedings. The Supreme Court concluded that Judge A.K. ’ s involvement in the parliamentary work on the bill occurred after the trial had been terminated and thus it could not have had any effect on the content of the judgment.

Having regard to the above conclusion, the Supreme Court noted that the principal issue before the Court of Appeal and now before the Supreme Court was the issue of compatibility of the 2005 Act with the Constitution and the Convention as well as the related problem of how should the court proceed in case of finding that such an incompatibility existed.

With regard to the alleged unconstitutionality of the 2005 Act , the Supreme Court referred to the established case-law of the Constitutional Court on the issue of limitation period. In accordance with this case-law, limitation period was not a subjective right ( prawo podmiotowe ) and therefore it could be subject to change including of retrospective character. The change of limitation period did not have a bearing on the criminalisation of a given act or the penalty that could be imposed but was related to the criminal policy of the State (referring to the Constitutional Court ’ s judgment of 25 May 2004, case no. SK 44/03).

With regard to the alleged unconstitutionality of the 2005 Act related to the shortcomings of the legislative process, the Supreme Court concurred with the Court of Appeal that the conduct of this process had indicated that the impugned legislation was adopted with a view to influencing the outcome of a particular case. The Court of Appeal analysed this issue from the perspective of “partiality” of Judge A.K. who had been involved in the preparation of the law partly determining the outcome of the case, but for the Supreme Court this issue had to been seen in a wider context. In fact, the Court of Appeal analysed the issue of “partiality of the legislator” understood as an infringement by the legislator of the competences of the judicial authorities by the former ’ s involv ement in the determination of a specific case by means of enacting legislation.

The Supreme Court analysed whether “the partiality of the legislator” occurred in the applicants ’ case. It had regard to the reasons for the bill which although very brief had contained two paragraphs on the relevant issue:

“It should be underlined that the urgency of this matter [bill] is also justified by the necessity to save the so-called FOZZ scandal before the risk of the expiry of the limitation period. The [trial] court ’ s efforts to give judgment could be thwarted at the last stage of the judicial proceedings as a result of the us e by the defendants and their lawyers of the imperfect provisions of the criminal procedure enabling them to obstruct the trial. It would have certainly be a s hame ... if at the eyes of the whole country the biggest scandal of the Polish democracy being at the final stage of the trial had not been decided because of the expiry of limitation period.”

The Supreme Court noted that the parliamentary work on the bill, both in the relevant Committee and at the plenary session of the Sejm clearly indicated the existence of the links between the need to enact the impugned legislation and the proceedings in the applicants ’ case. The statement made by MP Z. Ziobro during the debate on t he bill in the Sejm on 22 March 2005 was relevant here (“Among the thousands of cases (threatened by the expiry of the limitation period) there is also this one, which outrages and shocks the most the Polish public opinion, which ... became the instigator and final argument for the introduction of this bill, and that is the FOZZ-gate and the real risk of the expiry of the limitation period in this case”). Similarly, the statement made by the MP J. Kaczy ń ski in the same debate left no doubts as to the intentions of the proponents of the bill ( “there is a legal possibility of influencing these proceedings”) .

In conclusion, the Supreme Court found that the involvement of the legislator, with the support of Judge A.K. who had taken part in giving the judgment in the applicants ’ case, could give rise to the allegation that the object of the 2005 Act was to influence the final outcome of the specific case of the applicants. Such situation raised in turn doubts about the conformity of the law with Articles 2 and 10 of the Constitution.

In the applicants ’ case, the Court of Appeal held that the 2005 Act was unconstitutional and for that reason it independently decided not to apply in the case. However, the Supreme Court found that in this respect the Court of Appeal had transgressed its competences and offended the Constitution . It held that instead of refusing to apply the unconstitutional legislation, the Court of Appeal had been required to put a legal question to the Constitutional Court on the constitutionality of the 2005 Act. In its view, the Constitutional Court had the exclusive competence to declare legislation unconstitutional.

For this reason, the Supreme Court quashed the Court of Appeal ’ s judgment in part concerning discontinuation of the proceedings against the first and the third applicant s (point s II and VI.2 of the operative p rovisions of the trial court ’ s judgment))

8. Proceedings before the Constitutional Court

Following the Supreme Court ’ s directions, on 31 August 2007 the Court of Appeal put a legal question to the Constitutional Court.

In its submissions to the Constitutional Court, it underlined that the FOZZ-gate had been invoked throughout the parliamentary work on the bill. The Court of Appeal referred t o the reasons for the bill (see the quote below) and the statements made by the MPs, experts and representatives of the Ministry of Justice in the course of debates in the Extraordinary Committee on the Amendments to Criminal Codifications invoking the same case. In view of the above, the Court of Appeal considered that the 2005 Act was not enacted as a general instrument of the criminal policy of the State but because of the legislator ’ s desire to influence the outcome of a particular case. Such situation would amount to an infringement by the legislator of the competences of the judicial authorities by the former ’ s involvement in the determination of a specific case by means of enacting legislation. For the Court of Appeal there were substantiated doubts about the compatibility of the 2005 Act with Articles 2 (rule of law principle) and 10 (separation of powers) of the Constitution. The Court of Appeal further pointed out that the European Court of Human Rights appeared to allow legislative intervention in the administration of justice provided that such intervention was justified by important public interest ( Zielinski and Pradal and Gonzalez and Others v. France of 28 October 1999). However, with regard to the FOZZ-gate, it was questionable whether the circumstances acc ompanying this case warranted a rushed amendment to the Criminal Code.

On 11 February 2009 the Constitutional Court discontinued the proceedings initiated by the legal question of the Court of Appeal on the ground of ne bis in idem (case no. P 39/07). It referred to its earlier judgment of 15 October 2008 (case no. P 32/06) which was decisive for the case at issue. It that judgment the Constitutional Court held that the 2005 Act was compatible with the Constitution (Articles 2, 32 § 1, 42 § 1 and 45 § 1) and Article 6 § 1 of the Convention.

In its judgment of 15 October 2008 , the Constitutional Court found that the Constitution did not contain any provisions related to limitation ( przedawnienie ) and therefore it was within the legislator ’ s discretion to decide whether limitation periods should be at all introduced into the legal system and in what form. It held that the impugned provisions, while extending limitation periods, did not change the grounds of criminal liability for specific punishable acts but extended temporal limits of the criminal liability which should be taken into account by a court examining a case. The Constitutional Court underlined that an individual could not argue that the extension of the limitation period detrimentally affected his situation as an offender since he could not foresee that the limitation period would be modified. Furthermore, the extension of the limitation period in cases where the proceedings had been pending against a specific individual could be justified by public interest.

In the same judgment the Constitutional Court also analysed the argument raised by the Court of Appeal that the object of the 2005 Act was “a direct and arbitrary intervention of the public authorities in the pending case concerning the so-called FOZZ-gate”.

In its judgment of 15 October 2008, the Constitutional Court d isapprove d the reasons for the bill which indicated that the FOZZ-gate had been indeed the inspiration for the amending legislation. The legal norms of general and abstract character should not be created for individual cases. However, it noted at the same time the contested provisions of the 2005 Act were of normative character and the reasons for the bill indicated that the proponents had wished to counteract certain negative phenomena. It was stated in the reasons for the bill that “limitation of many offences, including the important ones, requires an immediate reaction of the Parliament”. The Constitutional Court considered that the reasons for the bill were not persuasive but at the same time they did not form part of the statute . The reasons could only be used as an auxiliary tool in the functional interpretation of the law.

In the same judgment the Constitutional Court noted that the content of the impugned norms of the 2005 Act could be adequately established on the basis of the linguistic interpretation. Accordingly, the reasons for the bill became redundant for the interpretation of the impugned norms and as such could not be subject to the Constitutional Court ’ s review. The Constitutional Court noted nonetheless that the passage fro m the reasons for the bill (“it would have been a scandal etc.”) could be read as an attempt of interference by the public authorities in the pending case concerning the FOZZ. On the other hand, it could not be presumed that the impugned amending legislation would influence the conduct of the judicial proceedings and its outcome provided that the courts respected the law. The Constitutional Court further noted that the reasons for the bill disclosed a dangerous tendency of the criminal policy of the State which consisted in attempting to counteract the inefficiency of the State in the administration of justice by legislative measures such as the extension of limitation periods.

In its decision of 11 February 2009 , the Constitutional Court noted that the Court of Appeal had not questioned the very extension of the limitation period or the possibility of applying extended limitation periods to offences committed before the entry into force of the amending legislation which had not become time-barred according to the rules formerly applicable . The allegations of the Court of Appeal concentrated instead on the shortcomings of the legislative process, however without invoking any of the relevant constitutional provisions regulating this process. The Court of Appeal focused on the context and the circumstances surrounding the enactment of the impugned legislation by referring to selected statements of the persons taking part in the parliamentary work on the bill and by invoking certain passages from the reasons for the bill.

The Constitutional Court addressed this issue in the earlier judgment of 15 October 2008 . There, it did not identify in the legislative process the procedural errors which would entail the unconstitutionality of the law or its incompatibility with the Convention, save for a critical assessment of the reasons for the bill.

In the same judgment the Constitutional Court held that the impugned law did not influence the outcome of the criminal case since the rules related to limitation periods did not concern the substantive aspects of the criminal responsibility. The legislator ’ s intention was to enable the court to determine the charges in the case and not to influence the decision of the court on the merits (contrast with Zielin ski and Pradal and Gonzalez and Others v. France of 28 October 1999). Having regard to the above, the Constitutional Court discontinued the proceedings initiated by the legal question of the Court of Appeal.

9. The Court of Appeal ’ s second judgment

On 1 June 2009 the Court of Appeal gave judgment following the partial remittal by the Supreme Court.

The Court of Appeal upheld the trial court ’ s judgment with regard to the first applicant ’ s conviction and sentence for the offence under Article 217 § 2 of the old Criminal Code ( point II of the operative p rovisions of the trial court ’ s judgment) .

The Court of Appeal further upheld the trial court ’ s judgment with regard to the third applicant ’ s conviction for the offence under Article 278 § 1 in conjunction with Article 294 § 1 of the Criminal Code (point VI.2 of the operative provisions of the trial court ’ s judgment) but it lowered the fine imposed on him in respect of this offence.

Having regard to the Constitutional Court ’ s decision of 11 February 2009, the Court of Appeal ruled that it could not discontinue the criminal proceedings against the first and third applicants on account of the expiry of the limitation period as it had been decided in the first judgment of the same court. It would not have been acceptable to refuse to apply the law whose constitutionality had been confirmed by the Constitutional Court.

With regard to the allegations concerning the improper assignment of Judge A.K. to the case, the Court of Appeal, following the Supreme Court ’ s judgment, held that this shortcoming had not affected the content of the trial court ’ s judgment. The Court of Appeal dismissed further arguments raised by the first and third applicants in their appeals against the trial court ’ s judgment.

10. The Supreme Court ’ s second judgment

The first and third applicants filed cassation appeals against the Court of Appeal ’ s judgment. The third applicant alleged, in particular, that the Court of Appeal had violated the provisions of the substantive criminal law related to his conviction for the offence under Article 217 § 2 of the old Criminal Code. On 27 May 2010 the Supreme Court dismissed both cassation appeals. It held that the cassation appeal filed by the third applicant was manifestly ill-founded.

B. Relevant domestic law and practice

The Law of 3 June 2005 on amendments to the Criminal Code, which extended limitation periods, entered into force on 3 August 2005 (“the 2005 Act”).

Article 101 § 1 of the Criminal Code set limitation periods for various categories of offences: (1) thirty years for a crime of homicide, (2) twenty years for other crimes, (3) ten years for misdemeanour s punishable by a prison sentence exceeding three years , (4) five years for offences punishable by a prison sentence not exceeding three years and (5) three years for offences punishable by a restriction of liberty or a fine.

The 2005 Act amended Article 101 § 1 of the Criminal Code by adding subparagraph ( 2a), amend ing subparagraph ( 4) and repeal ing subparagraph ( 5) of this Article. In accordance with subparagraph (2a) limitation period was set at fifteen years for misdemeanour s punishable by a prison sentence exceeding five years . The amended subparagraph (4) set the limitation period at five years for all other misdemeanours.

Article 102 of the Criminal Code provided that limitation periods shall be extended by five years if a criminal investigation has been instituted against a suspect before the expiry of the prescription period as defined by Article 101 § 1.

The 2005 Act amended Article 102 which henceforth provided that the limitation period for offences specified in Article 101 § 1 subparagraphs 1-3 was extended to ten years and for all other offences was set at five years.

Article 2 of the 2005 Act provided that the new limitation periods were to be applied to offences committed prior to t he entry into force of the 2005 Act except for the offences which were no longer punishable because they had become subject to limitation.

COMPLAINTS

1. All applicants complain under Article 6 § 1 of the Convention that Judge A.K. was assigned to examine their case at the Warsaw Regional Court (trial court) in breach of Articles 350 § 1 and 351 § 1 of the Code of Criminal Procedure. They argue that this entailed a violation of their right to have their case examined by an independent and impartial tribunal and/or their right to a fair trial.

2. All applicants complain under Article 6 § 1 of the Convention about the lack of impartiality of Judge A.K. They refer to the judge ’ s involvement in the passing of the 2005 Act which adversely affected their legal situation.

The second and third applicants point out to the links of Judge A.K. with the Law and Justice party. In the course of the parliamentary work on the bill Judge A.K. acted as an adviser to Mr Z. Ziobro, an influential MP from the Law and Justice party. Subsequen tly, Judge A.K. was appointed a Secretary of State in the Ministry of Justice at the time when Mr Z. Ziobro was the Minister of Justice.

The second and third applicants also refer to the judge ’ s statement at the start of the trial about the 40 million of victims in the case and certain passages in the reasoning of the trial court ’ s judgment, such as one related to the issue of financing of political parties by the FOZZ.

3. All applicants complain under Article 6 § 1 of the Convention about the breach of their right to a fair trial in connection with the pass ing of the 2005 Act extending limitation periods in the course of their criminal case. The second and third applicants allege that the 2005 Act was motivated by the FOZZ case, referring to the reasons for the bill.

QUESTIONS TO THE PARTIES

1. Wa s the first-instance court which dealt with the applicants ’ case a “tribunal established by law” as required by Article 6 § 1 of the Convention, having regard to the manner in which Judge A.K. was assigned to the case?

2. Was Judge A.K. impartial, as required by Article 6 § 1 of the Convention? Reference is made to the participation of Judge A.K. in the parliamentary work on the bill extending limitation periods.

3. Did the applicant s have a fair hearing in the determination of the criminal charge s against them , in accordance with Article 6 § 1 of the Convention? Reference is made to the enactment of the 2005 Act extending limitation periods in the course of their criminal case.

Appendix

No.

Case Number

Case Name

Date of lodging

Name of Representative

Representative ’ s Address

1 .

35778/07

ŻEMEK v. Poland

16/08/2007

Grzegorz Majewski

P an Mecenas

Grzegorz M ajewski ,

S ikorski & M ajewski

Spółka A dwokacka s.c. ,

ul. Nowogrodzka 48,

PL – 00-695 W arszawa

2 .

36661/07

CHIM v. Poland

14/08/2007

Piotr Kruszyński

Pan Mecenas Piotr Kruszyński , Kancelaria Adwokacka ,

ul. Hoża 34 lok. 2 ,

PL – 00-516 Warszawa

3 .

38433/07

PRZYWIECZERSKI v. Poland

11/08/2007

C aroline .L. A de Sitter

Ms Caroline L.A. de Sitter , Sjöcrona - Van Stigt ,

Postbus 85770 ,

NL - 2508 CL den Haag