PARTLY DISSENTING OPINION OF JU D GES LAZAROVA-TRAJKOVSKA, BIANKU AND SICILIANOS

(Translation)

1. We regret to say that we cannot share the majority ’ s view that the principle of the presumption of innocence has not been infringed in the present case . We disagree with the majority as regards both the application of this principle to the case at hand and the method they have adopted to interpret it .

( a) A pplication of the presumption of innocence in the present case

2. As indicated in paragraph 203 of the judgment, the Court ’ s settled case-law holds that the presumption of innocence enshrined in Article 6 § 2 will be breached if a n official statement concerning a person charged with a criminal offence reflects an opinion that he may be guilty , even though his guilt h as not legally been established . It will suffic e , even in the absence of a formal finding, for a judge ’ s reasoning to suggest that he considers the person in question to be guilty .

3. There is no doubt that the opinions given by a parliamentary commission of inquiry , in the form of findings o r remarks expressed during the proceedings , fall within the scope of A rticle 6 § 2. The situation of remarks made by such a commission must therefore be added to the other cases of remarks by public authorities enumerated in paragraph 206 of the judgment . The judgment in Corbet and Others v . France (nos . 7494/11, 7493/11 and 7989/11, §§ 35 and 38, 19 March 2015) confirm s this analysis .

4. The Court has, in a number of cases, emphasised the importance of the choice of words by public officials in statements made by them before a person has been tried and found guilty of an offence ( see, among many other authorities , Daktaras v. Lithuania , no. 42095/98, § 41, 10 October 2000, Arrigo and Vieille v . Malt a (d e c.), no. 6569/04, 10 May 2005, and Khuzhin and Others v. Russia , no. 13470/02, § 94 , 23 October 2008 ). In the case of Huseyn and Others v . Azerba i jan ( nos. 35485/05, 45553/05, 35680/05 and 36085/05, § 232, 26 July 2011), the Court held that the authorities should have exercised particular caution in the choice of words used to describe the pending criminal proceedings and the events that had led to the applicants ’ prosecution . It has also pointed out, in Konstas v . Gr ee ce ( no. 53466/07, § 36, 24 May 2011), that the Convention must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory , and that therefore the presumption of innocence cannot cease to apply in appeal proceedings simply because the accused was convicted at first instance .

5. On a more practical level, and in comments that are directly relevant to the facts of the present case , the Venice Commission stated as follows in its third-party intervention: “ w hen formulating its report, the parliamentary [commission] should take great care not to make any assessments of a criminal legal nature or pronounce itself on the criminal responsibility of t he persons concerned. It should however remain free to describe and analyse all the facts of the case and to assess these from a political perspective” ( see paragraph 19 5 of the judgment ) .

6. For these reasons, the words used by the parliamentary commission of inquiry are the key to determin ing whether or not there has been a violation in the present case .

7. It should first be noted that the title of the re solution of the lower house of the Polish Parliament ( the Sejm ) setting up the commission of inquiry was formulated in terms that were hardly nuanced; the title indicated that the commission had been set up : “( 1) To investigate the circumstances surrounding the attempted extortion by Lew Rywin of material and political gains ... ”

In the title of that r e solution, the Sejm was not therefore cautious in its choice of language , because it referred outright to an “attempted extortion” – a criminal offence – on the part of the applicant, and not to a “purported” or “alleged” attempt . Accordingly, the starting point of the parliamentary commission of inquiry would seem to have been an already established fact . While the Venice Commission and the Polish Constitutional Court have stated that “the work of a parliamentary commission of inquiry is political in nature” , the purposes for which the commission was set up in the present case seem to go beyond a strictly political framework .

8. However, what we find even more important is the final report of the Sejm dated 24 September 2004. The impugned remarks of this report are set out in paragraph 32 of the judgment, namely the conclusion that the politicians investigated by the commission

“committed, by deliberate and concerted action in July 2002, the offence of bribery, within the meaning of Article 228 § 5 of the Criminal Code taken together with Article 13 § 1 of that Code; in that they, [while] influencing the content of the Broadcasting Act being amended and the parliamentary proceedings related thereto, in July 2002, through the intermediary of Lew Rywin acting as agent of the ‘ power-holding group ’ , made a corrupt proposal to the representatives of Agora S.A ...”

9. The highly legal nature of the language used by the parliamentary commission of inquiry is clear . At this juncture it is appropriate to look also at the language used in the findings of the Warsaw Court of Appeal. It held that the defendant Lew Rywin had

“... in a premeditated manner and with the intention of facilitating the commission by others of the offence of influence peddling , facilitated the commission of this offence by his conduct , [ that is ] commi tted act s fulfilling the conditions set out in A rticle 18 § 3 of the Criminal Code combined with A rticles 230 and 12 of that Code ... ”

It convicted him “on the charges thu s described and characteris ed under A rticle 19 § 1 of the Criminal Code, taken together with A rticle 230 of that C ode ” and sentenced him t o “two years ’ imprisonment and, pursuant to A rticle 33 § 1, 2 and 3 of the Criminal Code , 50 day-fines of PLN 2,000” .

10. A basic comparison of the findings of the parliamentary commission of inquiry with those of Warsaw Court of Appeal suffi ces to show that the meaning of the terms used by the former is not substantially different from the findings of criminal guilt by the latter .

11. We are of the view that in the present case the impugned remarks are much more explicit and serious than the words used, for example, by the Minister of the Interior in the Gutsanovi case ( see Gutsanovi v . Bulgari a , no. 34529/10, §§ 200-201, ECHR 2013). In that case the Minister had only spoken of “modus operandi” . In the present case, the remarks are much more precise and they refer back to the criminal-law provisions which provided for the conduct mentioned by the commission , whose report expressly described the applicant as the “agent” who had enabled the offence of influence peddling to be committed . Consequently, we do not agree with the findings in paragraph 21 7 of the judgment .

12. The impugned remarks were formulated in categorical terms taken from criminal law ; moreover, they were expressed before the applicant had finally been found guilty of complicity in influence peddling . In addition, the wording of the findings of the report of the commission of inquiry shows ( see paragraph s 3 2 and 21 4 ) that the authors referred to the criminal proceedings brought against the applicant and to the offences for which he was being prosecuted at the time by the competent criminal authorities . The only difference between those findings , formulated in that manner and with such precise references to criminal law , and a judgment of conviction handed down by a court, lies simply in the determination of the sentence .

13. Having regard to their content and the context in which they were formulated, those remarks were, in our opinion, capable of creating in the minds of the general public the impression that the commission considered the applicant to be guilty of complicity in corruption ( see , mutatis mutandis , ibid., § 200).

14. Furthermore , the impugned findings of the commission ’ s report were formulated following a formal procedure before a constitutional organ of Parl ia ment. That organ was made up of MPs and applied the relevant rules of the Code of Criminal Procedure . It took its decision on the basis of material gathered by the commission and of that transmitted to it by the authorities which had conducted the criminal proceedings against the applicant ( see, mutatis mutandis , ibid., § 199).

15. It should not be overlooked that the commission ’ s report was adopted in the context of widespread media coverage, at a time when the general public was expressing a keen interest in the case ( see paragraph 21 3 of the judgment and, mutatis mutandis , ibid., § 200).

16. We admit without hesitation that the commission of inquiry was acting legitimately and that in the present case the nature of the suspicions about a number of individuals obliged it to shed light on the case and to inform public opinion of its findings . We thus recognise that the report ’ s conclusions have to be interpreted in their context , namely that of a political proc e dure concerning a group of high-ranking civil servants of which the applicant himself was never part .

17. However, we take the view that on account of its authority, of the scope of its findings, of the particular circumstances surrounding its proceedings – which were conducted in parallel to the criminal proceedings against the applicant – and the significant media coverage of the case , the commission should have been particularly careful in using terms that could be interpreted as undermining the presumption of the applicant ’ s innocence ( the remarks in question can thereby be distinguished from th ose of the commission of inquiry of the French National Assembly in the case of Corbet and Others ( cited above , §§ 15-16)).

18. As the Venice Commission indicated in paragraph 20 of its third-party comments ,

“... it is in the nature of (alleged) political ‘ scandals ’ that they m ay give rise to parallel processe s, so that a case which is under parliamentary inquiry m ay at the same time be subject both to administrative inquiries and to legal investigations or proceedings. There is in itself nothing unusual or illegitimate in this. But it does put extra responsibility on all parties involved to ensure that proper distance i s kept between the parliamentary (political) inquiry and the criminal investigations and legal proceedings before the courts . ”

We believe that the requisite distance has not been maintained in the present case .

19. Having regard to the above-mentioned considerations , in particular the wording of the findings in the report of the parliamentary commission of inquiry and the context in which those findings were forthcoming , we take the view that the applicant ’ s right to the presumption of innocence has been breached . Accordingly, we are of the opinion that, to that extent, there has been a violation of A rticle 6 § 2 of the Convention.

( b) Problems of the methodological approach adopted by the majority

20. In arriving at their conclusion, the majority applied a test which consisted in considering the impugned remarks as a whole (at paragraph 21 4 as regards their reading of the r e solution setting up the commission of inquiry , then at paragraph 21 7 for their analysis of the findings of the commission ’ s report ).

21. It should again be emphasised that the Court has always found the important point to be the actual meaning of the impugned statements, having regard to the particular circumstances in which they were formulated ( see Y.B. and Others v . Tur key , nos. 48173/99 and 48319/99, § 44, 28 October 2004). In situations that are similar to that of the present case where the respondent State has sought to dilute the effect of the impugned remarks by placing them in the context of the information , the Court has rejected that argument and focussed on the ir meaning and content ( see Allenet de Ribemont v . France , 10 February 1995, §§ 40-41, Series A no. 308 ; Khuzhin and Others , cited above , § 96 ; and , more specifically , Gutsanovi , cited above , § 196, where it took into account, in reaching its conclusion , the “literal and figurative meaning of the expressions used” ).

22. With all due respect to the majority, we believe that the approach they have adopted risks diminishing in practice the protection provided by A rticle 6 § 2 of the Convention. This provision seeks to prevent the impression being given that an individual is guilty before being convicted in a final judicial decision . If the public had to engage in an overall analysis of the remarks made, which can be very difficult and in any event always subjective, even where the remarks are clear and precise – and all the more so where they are worded in categorical language taken from criminal law and indicate that the person concerned aided and abetted a criminal offence – , this might seriously undermine the effectiveness of the A rticle 6 § 2 protection .

[1] . Rectified on 22 February 2016: the text previously read “ Wilczyński ” .