CASE OF CHIM AND PRZYWIECZERSKI v. POLAND

Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione personae;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Tribunal established by law);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

The first applicant was born in 1950 and lives in Warsaw. The second applicant was born in 1946 and lives in Apollo Beach, Florida, United States of America.

The Foreign Debt Service Fund (Fundusz Obsługi Zadłużenia Zagranicznego “the FOZZ”) was established by the Law of 15 February 1989, which entered into force on 21 February 1989. It was a legal entity whose liabilities were guaranteed by the State Treasury. The task of the FOZZ was to collect and manage the funds earmarked for servicing Poland’s foreign debt. Those funds were to be used to repay Poland’s foreign debt.

The FOZZ was managed by its Director General, who had statutory authority to independently represent the Fund and enter into contracts on its behalf. The first applicant was initially appointed Head of Domestic Operations and later Deputy Director General of the FOZZ. The second applicant was the Managing Director and Chairman of the Board of Directors of the Universal Foreign Trade Company based in Poland.

Criminal proceedings were instituted following a complaint lodged by J.T., a German national, at the Polish Consulate in Cologne.

An 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 applicant and another individual, 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 so that certain shortcomings in the investigation could be rectified.

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 FOZZ’s property of a considerable value committed with other persons as a continuous offence between March 1989 and February 1991. She was further charged with failure to perform her duties to the detriment of the FOZZ.

The second applicant was charged with misappropriation of 1,557,178.05 US dollars (USD) to the detriment of the FOZZ committed with other persons as a continuous offence between July and September 1990.

There were five other accused in the case.

In February 1999 the applicants’ case was assigned to Judge B.P. The trial started on 4 October 2000 and a number of hearings were held until October 2001. On 19 October 2001 Judge B.P. was appointed Minister of Justice and consequently the whole trial had to be restarted.

On 19 October 2001 the President of the 8th Division of the Warsaw Regional Court asked the President of the Regional Court to assist the Division in finding a Regional Court judge from the appellate divisions who could hear the applicants’ case. He stated that, owing to a lack of judges and the volume of work in the 8th Division, there were no judges who could examine the case in question swiftly.

On 6 November 2001 the President of the Regional Court referred the request to the Board of the Regional Court (kolegium Sądu Okręgowego). She informed it that one of the judges, Judge A.K., had not agreed to a proposal by the management of the court to be transferred to the 8th Division to examine the FOZZ case. However, Judge A.K. stated that he would go if the Board took a decision in that regard.

On 6 November 2001 the Board unanimously decided to transfer Judge A.K. from the 10th Appellate Division to the 8th Criminal Division with effect from 15 November 2001. It further decided to assign him to case no. VIII K 37/98. In a letter of 7 November 2001 the President of the Regional Court informed Judge A.K. of that decision.

On 22 November 2001 the President of the 8th Criminal Division assigned Judge A.K. to case no. VIII K 37/98 “in accordance with the decision of the Board of the Warsaw Regional Court”.

The new trial bench was composed of Judge A.K., acting as president, and two lay judges. A substitute judge and two substitute lay judges were also assigned to the case.

The first hearing before the new bench was set for 30 September 2002. On that date Judge A.K. allowed journalists to record images and the identities of the defendants. He stated on that occasion that “there are forty million victims in this case, and society has the right to have images and personal information about the defendants”.

There were 224 hearings held in the trial court. Some 314 witnesses were heard, and a number of expert accounting reports and more than 1000 documents were examined. The files of the case were very voluminous.

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

On 29 March 2005 the Warsaw Regional Court delivered its judgment. Judge A.K. presented the main reasons for the verdict orally.

The trial court convicted the first applicant of misappropriation of the FOZZ’s property of a considerable value 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 as Head of Domestic Operations and later Deputy Director General, she had misappropriated a total of USD 3,779,835.75 from the FOZZ for the benefit of herself and other entities (point III of the operative provisions of the judgment). With regard to that offence, the court sentenced her to five years’ imprisonment and a fine.

The trial court further convicted the first applicant of failure to perform her duties and of exceeding her authority between March 1989 and July 1990 (Article 217 § 2 in conjunction with Article 4 of the Criminal Code of 1969). As a result of those failings the FOZZ had suffered damage of no less than 21,068,680.58 Polish zlotys (PLN) (point IV of the operative provisions of the judgment). With regard to that offence, the trial court sentenced her to three years’ imprisonment and a fine.

The trial court convicted the second applicant of misappropriation of the FOZZ’s property of a considerable value (USD 503,000) committed with other persons (Article 284 § 2 in conjunction with Article 294 § 1 of the Criminal Code, point VI.1 of the operative provisions of the judgment). With regard to that offence, the trial court sentenced him to two and a half years’ imprisonment and a fine.

It further convicted the second applicant of theft of the FOZZ’s property of a considerable value (USD 1,074,120) committed with other persons (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 that offence, the trial court sentenced him to two and a half years’ imprisonment and a fine.

The trial court gave the first applicant a cumulative sentence of six years’ imprisonment and the second applicant a cumulative sentence of three and a half years’ imprisonment and a fine. The trial court ordered the applicants to compensate the FOZZ for the damage caused. The first applicant was further ordered to pay compensation to the State Treasury.

On 30 March 2005 Judge A.K., in view of the complexity of the case, requested the President of the Warsaw Regional Court to grant him an extension until 31 May 2005 for preparation of the written judgment. The request was granted. The judgment was served on the applicants’ counsel on 5 May 2005. The operative part of the judgment runs to seventy pages and the reasoning to 830 pages.

The reasoning included a short presentation of evidence by certain witnesses concerning the alleged financing of political parties by the FOZZ. It stated that the issue “had not been relevant for the determination of the case”.

The reasoning further included a passage saying that “in the court’s assessment, the FOZZ trial has not, however, shown the important role played by the [second applicant] in the functioning of the FOZZ...”.

Subsequently, Judge A.K. requested that the Board of the Regional Court transfer him back to the 9th Appellate Division. On 17 May 2005 the Board granted that request in connection with “the termination of the FOZZ case in the 8th Criminal Division”.

The Law of 3 June 2005 on amendments to the Criminal Code (“the 2005 Amendment”), which extended limitation periods, entered into force on 3 August 2005 (see paragraphs 108-117 below).

It appears from the case file that the second applicant moved to the United States of America on an unspecified date.

The applicants lodged appeals with the Warsaw Court of Appeal. They 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 bench had been unlawful the appellate court should have quashed the lower court’s judgment in its entirety. They further alleged that Judge A.K. had been involved in the passing of the 2005 Amendment, which amounted to a breach of their right to a fair trial by an impartial tribunal.

The second applicant alleged that Judge A.K. had lacked impartiality, referring to a statement made by him at the opening of the trial and certain passages in the reasoning showing that he had a negative attitude towards him. He also referred to statements made in an interview given by Judge A.K. to the weekly newspaper Newsweek Polska assuming the defendants’ guilt and showing hostility towards the so-called “white collars”, who in his view should have been severely punished.

The applicants also alleged that the trial court had violated the rules of criminal procedure and the rights of the defence in various respects.

In the course of the appellate proceedings, the Warsaw Court of Appeal referred a legal question to the Supreme Court, seeking an interpretation of the provisions of the CCP concerning the assignment of a trial court judge to a given case and the consequences of an irregularly constituted trial bench for the outcome of appellate proceedings.

The legal question read as follows:

“Does the expression “court improperly constituted” in Article 439 § 1 (2) of the CCP also concern a situation in which a court that ruled on a case included a judge who had been “allocated” to the case by some other entity than the [one] authorised to do so by law, i.e. the president of a court (president of a division) assigning a judge – Article 350 § 1 (1) of the CCP – in the manner specified in Article 351 § 1 of the CCP.”

In a Resolution adopted on 17 November 2005, the Supreme Court replied as follows:

“The assignment of members of a court in breach of the rules specified in Articles 350 § 1 and 351 § 1 of the CCP constitutes a relative ground of appeal (względna przyczyna odwoławcza) referred to in Article 438 § 2 of the CCP.”

In its legal question, the Court of Appeal noted that, in consequence of a decision adopted by the Board of the Warsaw Regional Court, the president of a division in that court had issued an order assigning Judge A.K. to hear case no. VIII K 37/98 pursuant to Article 350 § 1 (1) of the CCP. The same court also noted that the manner of assigning members of the court in that case had violated the rules specified in Article 351 § 1 of the CCP since Judge A.K. had not been on the list of judges from which a judge should have been selected, but had been “transferred” to the 8th Division of the Warsaw Regional Court in order to hear case no. VIII K 37/98.

The Supreme Court agreed with the Court of Appeal that the rules specified in Articles 350 § 1 and 351 § 1 of the CCP had been violated in the case. There had been a breach of Article 350 § 1 of the CCP, which consisted of a decision not entirely “independent” in nature being taken by the president of a division to select Judge A.K. to hear the case, since that decision had been predetermined by an earlier decision of the Board of the Regional Court. There had also been a violation of Article 351 § 1 of the CCP, which consisted of disregarding the list of judges of the division and assigning as a member of the court a judge who had been “transferred” from another division for that specific purpose, without indicating other valid reasons, as required by that provision.

The Supreme Court then examined whether the above-mentioned breach of the rules specified in Articles 350 § 1 and 351 § 1 could be regarded as the court being “improperly constituted” within the meaning of Article 439 § 1 (2) of the CCP. Pursuant to that provision, a finding that a court had not been properly constituted resulted in the judgment being automatically set aside on appeal. The Supreme Court noted that in previous cases the term had been applied in the following situations: where a court had been composed of a smaller or larger number of members than provided for by law; where lay judges had sat as members of a court instead of professional judges and vice versa; and where a member of a court had had no authority to examine a case in a given court.

The Supreme Court emphasised that a violation of the rules on the assignment of members of a court contained in Articles 350 and 351 of the CCP did not – in itself – result in a situation where a court had examined a case in a composition not provided for by law or where a member of a court had had no authority to decide in a given case. On the other hand, if a decision by a president of a court (president of a division) had, in breach of Article 351 § 1 of the CCP, resulted in a court with a composition unknown in the law for a given category of cases or a person not authorised to examine cases in a given court being selected, such a flaw would have to be regarded as an automatic ground of appeal within the meaning of Article 439 § 1 (2) of the CCP. However, in such a situation the procedural flaw would have to consist not only of a violation of Article 351 of the CCP, but also a violation of the provisions of the CCP concerning the composition of judicial benches and the competence of judges to examine cases in a given court. In such a situation, a violation of procedural rules would be of a qualified, double nature.

That had not occurred in the case under consideration, in which only Articles 350 § 1 and 351 § 1 of the CCP had been violated. In the Supreme Court’s assessment, a sole violation of the above-mentioned provisions should be regarded as a relative ground of appeal. Consequently, in order to allow an appeal based on a relative ground, an appellate court had to establish, at least, a hypothetical link between the alleged procedural violation and the content of the judgment within the meaning of Article 438 § 2 of the CCP.

The Warsaw Court of Appeal delivered its judgment on 25 January 2006.

It quashed the first applicant’s conviction in respect of the offence of failure to perform her duties and of exceeding her authority (point IV of the operative provisions of the trial court’s judgment). The reason given was that the offence had become subject to limitation on 17 July 2005, prior to the date of entry into force of the 2005 Amendment.

The Court of Appeal further quashed the second applicant’s conviction in respect of theft of the FOZZ’s property of a considerable value (point VI.2 of the operative provisions of the trial court’s judgment). The principal reason given was the court’s refusal to apply the 2005 Amendment to the relevant offence imputed to the second applicant. In consequence, the limitation period in respect of that offence had expired on 12 September 2005.

The Court of Appeal accordingly quashed the cumulative sentences imposed on the applicants. It discontinued the part of the proceedings concerning the quashed convictions. The Court of Appeal also lowered the fines imposed on the applicants.

The remainder of the trial court’s judgment was upheld, including the first and second applicant’s convictions for misappropriation of the FOZZ’s property of a considerable value (points III and VI.1 respectively of the operative part of the trial court’s judgment).

The Court of Appeal analysed the circumstances surrounding the assignment of Judge A.K. to the case. It found that the decision to assign him had simply been a consequence of the Board of the Regional Court’s decision and not a sovereign act by the President of the 8th Division in the exercise of his powers 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 effect 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 Amendment extending limitation periods, which was relevant for some of the charges against the applicants.

The bill had been introduced by a group of MPs from the opposition party, Law and Justice, on 21 February 2005, before the date of delivery of the trial court’s judgment on 29 March 2005. The bill had made direct reference to the applicants’ pending case.

The intentions of the drafters had been confirmed during debates in the Special Committee for Codification Amendments of the Sejm (the Lower House of Parliament) and at the plenary session of the Sejm. One of the supporters of the draft bill had been the member of parliament (MP) Z. Ziobro, who had also acted as rapporteur in the course of the parliamentary debate on the bill. Judge A.K. had been serving at that time as an advisor to the Special Committee on his recommendation.

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 the relevant Ordinance of the Council of Ministers. However, a judge was prevented from participating in parliamentary work on criminal law codification as an advisor chosen by an MP, parliamentary group or a political party. By doing so, a judge would in fact be acting 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 noted that, according to a letter from the Chancellery of the Sejm (see paragraph 97 below), Judge A.K. had not been an advisor to the Special Committee in connection with the work on the bill extending limitation periods. However, the court’s analysis of some parliamentary records contradicted that assertion. It transpired from the minutes of a meeting of the Special Committee on 1 June 2005 that Judge A.K. had been present during a discussion on the bill. At that meeting Z. Ziobro MP, after the Committee had rejected his amendment to the bill, asked Judge A.K. “whether in this situation the FOZZ case would become time-barred”. The Court of Appeal also referred to the minutes of the plenary session of the Sejm on 3 June 2005. At that session Z. Ziobro MP, replying to a question, stated that Judge A.K. had been permanent advisor to the Committee and presented verbatim the judge’s position on an aspect of an amendment to the bill.

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, even though at the same time he had examined their case at trial.

The Court of Appeal held as follows:

“In the present case ... on the basis of the circumstances concerning the passing of the 2005 Amendment established in the course of the appellate proceedings, the Court of Appeal reached the conclusion that the regulations contained in the Act had been adopted by the legislature, in particular, so that they could be applied 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 advisor, thus showing a lack of impartiality. Having regard to the foregoing, the application of the 2005 Amendment to the present case would have patently violated the standards of Articles 10 and 45 § 1 of the Constitution and Article 6 of the Convention concerning the right to a fair trial before an impartial tribunal and would have had an obvious influence on the pertinent part of the judgment.”

The Court of Appeal decided not to apply the 2005 Amendment to that part of the case. It therefore found that the limitation period in respect of the offence of theft of the FOZZ’s property of a considerable value imputed to the second applicant had expired on 12 September 2005 (point VI.2 of the operative provisions of the trial court’s judgment). It held that his conviction in respect of that offence had to be quashed and that the relevant part of the proceedings had to be discontinued.

Having regard to the foregoing, the Court of Appeal allowed the applicants’ arguments concerning the flaws in the assignment of Judge A.K. to the case and the efforts of the judge to amend the legislation applicable to the case in the course of the trial and at the formal examination stage of the appeal. In the appellate court’s view, the applicants had rightly pointed out that by accepting the role of advisor to the proponents of the bill amending the Criminal Code (extending limitation periods) Judge A.K. had shown a lack of impartiality. At the same time, Parliament, by failing to respect the rule of law, had 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 had only affected part of the trial court’s judgment, namely the offence imputed to the second applicant (point VI.2 of the operative provisions of the trial court’s judgment), for which the limitation period had been set to expire on 12 September 2005. Only in that part did there exist a 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.

As to the remainder of the case, the Court of Appeal did not establish that the above shortcomings had influenced the content of the trial court’s judgment. Accordingly, it did not accept the applicants’ submissions, which were aimed at having the judgment of the trial court quashed in its entirety.

With regard to certain passages in the reasoning showing that Judge A.K. had a negative attitude towards the second applicant, the Court of Appeal found that many of them had been opinions based on fact and therefore could not be seen as showing a lack of impartiality towards the second applicant. However, the court agreed with the defence that the passage about the important role of the second applicant in the activities of the FOZZ had not been fact-based and was therefore inappropriate. Nonetheless, the statement was related to hypothetical behaviour of the second applicant which was unrelated to the charges against him and in any event had not influenced the content of the judgment. The second applicant had not substantiated either how the passage related to the financing of political parties by the FOZZ could show that Judge A.K. had had a negative attitude towards him, when that issue had not been examined by the trial court. With regard to the allegation raised by the second applicant of a lack of impartiality on the part of Judge A.K. in connection with his statement about the forty million victims in the case, the Court of Appeal found it to be groundless. It considered that the statement had to be seen in the proper context in which it was made, namely the trial court’s determination to elucidate all the

The Court of Appeal dismissed the remainder of the applicants’ appeals. It examined various allegations concerning the rights of the defence and the rules of criminal procedure raised by the applicants and rejected them all as unfounded or as having no bearing on the content of the judgment.

The Prosecutor General lodged a cassation appeal against the part of the Court of Appeal’s judgment concerning the discontinuation of the proceedings against the second applicant in respect of the charge of theft of the FOZZ’s property of a considerable value (point VI.2 of the operative provisions of the trial court’s judgment). The Prosecutor General argued that the Court of Appeal had erred in holding that the application of the 2005 Amendment to the offence in question would have breached Articles 10 and 45 § 1 of the Constitution and Article 6 of the Convention on account of the alleged lack of impartiality of Judge A.K. In his view, the appellate court’s finding had resulted in the relevant part of the proceedings being unjustifiably discontinued.

The applicants also lodged 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 view, the assignment of Judge A.K. in flagrant breach of Articles 350 § 1 and 351 § 1 of the CCP had 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 Amendment could only be relevant for some of the offences imputed to them. In their view, his lack of impartiality had affected the whole trial and therefore the trial court’s judgment should have been quashed in its entirety.

The second applicant also alleged that the Court of Appeal had not examined his arguments that Judge A.K. should have been removed from the case because of doubts as to his impartiality.

The applicants repeated their allegations concerning various violations of the rights of the defence and the rules of criminal procedure committed by the trial court, which had allegedly not been duly examined by the Court of Appeal.

On 21 February 2007 the Supreme Court gave judgment. It allowed the cassation appeal of the Prosecutor General and quashed the part of the Court of Appeal’s judgment concerning the discontinuation of the proceedings against the second applicant, remitting that part of the case to it. It dismissed the cassation appeals filed by the 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 had 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 provisions. However, having regard to its 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 that to be the case the judge would have to be interested in the case having a specific outcome by violating the rules of criminal procedure.

In that connection, the Supreme Court first noted that behaviour which could raise doubts about the lack of impartiality of a judge hearing a case would have to arise up until delivery of the judgment by the judge in question. 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 manifest itself in restrictions on the procedural rights of a party, improper gathering of evidence or the imposition of an unjust sentence. However, the applicants had not provided concrete examples of such shortcomings and had limited themselves to general allegations. They had merely referred to one statement made by Judge A.K. about “the forty million victims”, the passage in the reasoning of the trial court related to the financing of political parties by the FOZZ and the antagonism of political parties with which Judge A.K. and the second applicant respectively sympathised.

With regard to the statement about “the forty million victims” the Supreme Court paid attention to the context in which it had been made – at the first trial hearing on 30 September 2002 in which Judge A.K., the president of the bench, had allowed journalists to disseminate images and information about the identities of the defendants (see paragraph 20 above). In the Supreme Court’s view, an analysis of the statement did not permit the conclusion that Judge A.K. had identified himself with the victims in the case under examination by him. The statement had indicated that it was society that was entitled to have images of the defendants. For the Supreme Court, the statement was another unnecessarily pompous statement by Judge A.K. which was not in itself proof of his lack of impartiality. It also noted that the defence had not reacted to this statement by requesting that he be removed from the case. Likewise, before the start of the trial the defence had not raised the issue of any of the members of the trial bench possibly having a negative attitude towards the second applicant. With regard to the passage related to the financing of political parties by the FOZZ, the Supreme Court noted that it did not point to a lack of impartiality on the part of Judge A.K. The judge had concluded in the reasoning that that issue had been irrelevant for the determination of the case. Having regard to the foregoing, the Supreme Court did not share the applicants’ views about the alleged lack of impartiality of the trial court.

The Supreme Court examined the applicants’ arguments related to the alleged lack of impartiality of Judge A.K., which had allegedly ensued from his involvement in the passage of the 2005 Amendment. In that connection, the court noted that the bill had been introduced on 21 February 2005 and that only from that moment in time could one talk about his alleged involvement in the process. The bill had been introduced after the trial court had finished hearing evidence in the case (8 February 2005) and at a time when the trial had entered its final stages, with the closing statements by the parties. The court further noted that the parliamentary debate on the bill had effectively started in April 2005, after the trial court had delivered its judgment (29 March 2005). Accordingly, it could not be said that the trial hearing had coincided with the parliamentary debate on the bill.

Furthermore, the 2005 Amendment had entered into force on 3 August 2005 and the limitation period with regard to one of the offences (point VI.2 of the operative part) had been set to expire on 12 September 2005. Accordingly, the consequences of the expiry of the limitation period and the entry into force of the law extending limitation periods had taken place in the course of the appellate proceedings.

The Supreme Court concluded that Judge A.K.’s involvement in the parliamentary debate on the bill had occurred after the trial had ended and thus could not have had any effect on the content of the judgment. It noted that the Court of Appeal must have embraced a similar view on that issue since it had not decided to quash the trial court’s judgment in its entirety.

Having regard to the above conclusion, the court noted that the principal issue before the Court of Appeal and now before it was the compatibility of the 2005 Amendment with the Constitution and the Convention, as well as the related problem of how the court should proceed in the event of a finding of incompatibility.

With regard to the constitutionality of the 2005 Amendment, the Supreme Court referred to the established case-law of the Constitutional Court, which provided that limitation periods were not a subjective right (prawo podmiotowe) and therefore could be subject to change, including retrospectively. A change to a limitation period did not have a bearing on the criminalisation of a given act or the penalty that could be imposed. Rules on limitation periods did not provide guarantees for a person who committed an offence, but were established for the sake of punishment and were related to the State’s criminal policy (referring to the Constitutional Court’s judgment of 25 May 2004, case no. SK 44/03).

With regard to the constitutionality of the 2005 Amendment related to the shortcomings of the legislative process, the Supreme Court concurred with the Court of Appeal that the conduct of that process indicated that the impugned legislation had been adopted with a view to influencing the outcome of a particular case. The Court of Appeal had analysed the issue from the perspective of the “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 that issue had to been seen in a wider context. In fact, the Court of Appeal had analysed the issue of the “partiality of the legislature” and understood it to mean an encroachment by the legislature on the competences of the judicial authorities by the former’s involvement in the determination of a specific case by means of enacting legislation.

The Supreme Court analysed whether “the partiality of the legislature” had occurred in the applicants’ case. It had regard to the reasons for the bill which, although very brief, had contained two paragraphs related to the FOZZ case.

The Supreme Court noted that the parliamentary debate on the bill, both in the relevant Committee meetings and at the plenary session of the Sejm clearly indicated the existence of links between the need to enact the impugned legislation and the proceedings in the applicants’ case. A statement made by Z. Ziobro MP during the debate on the 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 Polish public opinion the most, which ... became the instigator and final argument for the introduction of this bill, and that is FOZZ-gate and the real risk of the limitation period expiring in this case”). Similarly, the statement made by J. Kaczyński MP in the same debate left no doubt 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 legislature, with the support of Judge A.K., could support the allegation that the object of the 2005 Amendment had been to influence the outcome of the applicants’ specific case. Such a situation in turn raised doubts about its conformity with Articles 2 and 10 of the Constitution.

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

For that reason, the Supreme Court quashed the part of the Court of Appeal’s judgment concerning the discontinuation of the proceedings against the second applicant (point VI.2 of the operative provisions of the trial court’s judgment) and remitted that part of the case to it.

Following the Supreme Court’s directions, on 31 August 2007 the Court of Appeal put a legal question to the Constitutional Court on the constitutionality of the 2005 Amendment.

The Court of Appeal submitted that “FOZZ-gate” had been mentioned throughout the parliamentary debate on the bill. It referred to the reasons for the bill and the statements made by the MPs, advisors and representatives of the Ministry of Justice in the course of debates of the Special Committee for Codification Amendments referring to the same case. In view of the above, the Court of Appeal considered that the 2005 Amendment had not been enacted as a general instrument of criminal policy, but followed from the legislature’s desire to influence the outcome of a particular case. Such a situation amounted to an encroachment by the legislature on the competences of the judicial authorities. For the Court of Appeal, there were substantiated doubts about the compatibility of the 2005 Amendment with Articles 2 (rule of law principle) and 10 (separation of powers) of the Constitution.

In its decision of 11 February 2009 (case no. P 39/07), the Constitutional Court discontinued the proceedings initiated by the legal question of the Court of Appeal on the grounds of ne bis in idem. It referred to an earlier judgment it had adopted on 15 October 2008 (case no. P 32/06), which was decisive for the case at issue. In that judgment the Constitutional Court held that the 2005 Amendment was compatible with the Constitution and Article 6 § 1 of the Convention (see paragraphs 118 and 125-126 below).

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 under the rules formerly applicable. The allegations of the Court of Appeal had instead concentrated on shortcomings in the legislative process, but without invoking any of the relevant constitutional provisions regulating that process. The Court of Appeal had focused on the context and the circumstances surrounding the enactment of the impugned legislation by referring to select statements of the persons taking part in the parliamentary debate on the bill and mentioning certain passages from the reasons for the bill. However, that issue had already been addressed in the Constitutional Court’s judgment of 15 October 2008 (see paragraphs 122-124 below). In that judgment, it had also underlined that the contested amendment had not influenced the judicial determination of the case.

On 1 June 2009 the Court of Appeal gave judgment.

It upheld the trial court’s judgment with regard to the second applicant’s conviction for theft of the FOZZ’s property of a considerable value (point VI.2 of the operative provisions of the trial court’s judgment). It only lowered the fine imposed on him in respect of that 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 second applicant with regard to the abovementioned offence on account of the expiry of the original limitation period as had been decided in its first judgment. It would not be acceptable to refuse to apply a 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 that shortcoming had not affected the content of the trial court’s judgment. It dismissed further arguments raised by the second applicant in his appeal against the trial court’s judgment.

The second applicant lodged a cassation appeal against the Court of Appeal’s judgment. He alleged, in particular, that the Court of Appeal had violated the provisions of the substantive criminal law related to his conviction under Article 217 § 2 of the old Criminal Code. On 27 May 2010 the Supreme Court dismissed the second applicant’s cassation appeal as manifestly ill-founded.

In issue no. 7 of 20 February 2005, Newsweek Polska published an article entitled “Polish Di Pietro” about the FOZZ trial, including an interview with Judge A.K. The relevant part reads as follows:

“Journalists divide judges into those who have “pressure on the small screen” and those who consistently refuse to comment. Judge A.K. has a reputation as one of the best lawyers in Poland, but also as a “media stonewaller”.. In the FOZZ trial he [has] a dual role: as a main judge and as a defender of what remains of the reputation of the administration of justice. The threat of the limitation period hangs over the indictment. ...

“Journalist: Are you afraid that you will not have enough time to correct the prosecutors’ mistakes and sentence [those who are] guilty?

Judge A.K.: I will not comment on the trial. This is not a commission of inquiry.

Q: Perhaps it does not resemble a meeting of a commission [of inquiry], but don’t you have the impression that you are participating in the theatre of the absurd? The defendants faint, pretend to be mentally ill...

A: I have. What’s even worse [is that] I feel too frequently that it is not the defendant in the hands of a court, but me in the hands of the defendant and his counsel. Frequently, a team of people is working on how to use too liberal a law to block the trial. Unfortunately, we have succeeded in creating a belief among criminals that they can go unpunished.

Q: Do you think that opportunity makes a thief?

A: Not an opportunity, but the lack of an inevitable and adequate punishment. Up until recently a criminal could still laugh in our faces, because even if, by a miracle, he was caught and sentenced, he could use the stolen money with impunity, and even boast about it. ...

Q: They still brag that they transferred money to their wives and that nothing can be done to them.

A: What we know about scandals is not even the tip of the iceberg. We already have [the] white-collar mafia. It is time to find efficient methods of detecting crimes and begin applying adequate punishments. ...

Q: Even if we catch criminals more efficiently, where would we lock them up?

A: We will stop spending money on implementing inefficient programmes, and build more prisons. Thanks to harsh punishments and a ‘zero tolerance’ [policy] even for minor crimes, it was possible to resolve the crisis in New York. Why shouldn’t that idea work here?”

On 26 January 2006 Z. Ziobro, who had been appointed Minister of Justice in the meantime, gave an interview to a radio station. The transcript of the relevant part reads as follows:

“Q: Minister, your deputy, Judge [A.K.] has been criticised by the Court of Appeal’s judges, who found that Judge [A.K.] had not been impartial in the case against Ż. and [the first applicant].

A: The Court of Appeal’s judges were either misled or have been seriously mistaken because they have relied on false information.

Q: Who could have misled them?

A: Perhaps the defence lawyers, who raised certain arguments, not always properly, but always in the interest of their clients. ... The facts are that, firstly, Judge [A.K.] was not an advisor to the Law and Justice [party], but an advisor to the Sejm’s [Special Committee for Codification Amendments], as were many other judges, including judges of the Supreme Court. No one is alleging that because of that those judges are not impartial, and rightly so. Secondly, Judge [A.K.] did not take part in the debate on the provision extending limitation periods. I am the author of this provision, I conceived this provision and presented it to J. Kaczynski, and I then consulted two law professors, with whom I cooperate, who are also members of [advisors to] the Sejm’s committees, Professors M. and L.T., I think that both of them would confirm this.

Q: But did you rely on Judge [A.K.]’s opinion in this case or not?

A: I could not have relied on Judge [A.K.]’s opinion in this case, because in this case Judge A.K. did not give an opinion. In this case Judge [A.K.] was not at all an initiator of this idea. I was the author.

Q: And you did not speak to him about this issue:

A: No, I did not speak to Judge [A.K.] about this issue. In this case, I acted as Z. Ziobro MP, who seeing what was happening in the FOZZ case, concluded that limitation periods should be extended. And not only in the FOZZ case, but also in other cases ...”

An official note dated 21 July 2005 was submitted to the Warsaw Court of Appeal. It reads as follows:

“Judge A.K. was recommended by the deputy chairman of the Committee Z. Ziobro MP (PiS) to participate as an advisor in the work of the [Special Committee for Codification Amendments].

Because there is no custom in the Committee to appoint a permanent advisor, Judge A.K. was invited to many bills amending the criminal law on the instruction of Z. Ziobro MP.

It should be underlined that Judge A.K. was not the Committee’s advisor in the legislative work on the deputies’ bill amending the Criminal Code [extending limitation periods] (document no. 3785) at any stage of the work.

Judge A.K. was present at the [Committee’s] meeting on 1 June 2005 on the point concerning the above-mentioned bill, because he was waiting for the beginning [of a discussion on] of the third point for which he had been invited as an advisor (i.e. on the bill amending the Criminal Code and the Code of Execution of Sentences in respect of combating paedophilia ...)

The agenda of that meeting included a discussion on the amendments proposed in the second reading of the deputies’ bill:

I. amending the Criminal Code ([on] limitation periods – document no. 3785),

II. amending the Code of Criminal Procedure ...,

III. amending the Criminal Code and the Code of Execution of Sentences ([on] combating paedophilia ...).

Because the times for discussing particular points [of the agenda] were not been specified, Judge A.K. was present from the beginning of the meeting.”

It appears that Judge A.K. participated as an advisor to the Special Committee on two bills amending the Criminal Code. One of those bills was introduced by the President of the Republic in December 2001 and the other by the then opposition party, Law and Justice, in March 2002. The Sejm has not concluded the debate on those bills.


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 13+11 - Right to an effective remedy (Article 13 - Effective remedy) (Article 11 - Freedom of assembly and association;Article 11-1 - Freedom of peaceful assembly)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1962 and lives in Istanbul.

At the material time, the applicant was a civil servant in the Metropolitan Municipality of Istanbul and a member of the local branch of the Tümbel-Sen trade union, which is affiliated to the KESK (Kamu Emekçileri Sendikaları Konfederasyonu – the Confederation of Public Employees’ Trade Unions).

In April 2008 two of the largest trade unions, namely the DİSK (Devrimci İşçi Sendikaları Konfederasyonu – Confederation of Revolutionary Workers’ Trade Unions) and the KESK (Kamu Emekçileri Sendikaları Konfederasyonu – Confederation of Public Employees’ Trade Unions) announced that they were planning a large scale demonstration in Istanbul for 1 May 2008 and that their members would be gathering to celebrate the Labour Day and to commemorate their friends who had lost their lives during the demonstrations of 1 May 1977.

In May 2008 the applicant was informed that a disciplinary investigation had been initiated against him for being absent without leave on 1 May 2008 and he was asked to submit his defence submissions. The applicant explained that he had participated in a demonstration organised by his trade union on that day to celebrate International Labour Day.

Subsequently, the applicant was given a warning as a disciplinary sanction owing to his being absent without leave on 1 May 2008 pursuant to section 125 of the Civil Servants Act (Law no. 657).

On 13 May 2008 the applicant objected to the decision and requested its annulment.

On 16 May 2008 the Disciplinary Board of the Istanbul Municipality dismissed the applicant’s objection, finding that the contested decision was in accordance with the law and that there were no grounds to annul it.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Mrs Evgenia Tsvetanova Stambolska, is a Bulgarian national, who was born in 1952 and lives in Pleven. She was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.

The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice.

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

The applicant’s mother owned a three-storey house and a plot of land of 662 square metres, which were expropriated in 1948.

Following the enactment of the Compensation Law in 1997 (see paragraph 29 below), on 4 March 1998 the applicant and her brother requested compensation for their mother’s expropriated property. By a decision of 2 June 1998 the regional governor of Lovech dismissed the request insofar as it concerned the expropriated land, because it had already been subject to restitution, and held that in respect of the house, which had been demolished, the applicant and her brother were to receive compensation bonds.

The decision was served on the applicant on 18 February 2000.

On 2 March 2000 the applicant applied for judicial review of the above-mentioned decision.

In a judgment of 3 November 2000 the Pleven Regional Court (“the Regional Court”) quashed the regional governor’s decision in respect of the applicant and found that she was entitled to compensation for the land and house, to be provided both by transferring to her a share of a larger plot totalling 12,600 square metres, which adjoined the expropriated plot formerly owned by her mother, and by awarding her compensation bonds, the exact value of which would be determined at a later stage (see paragraph 31 below).

A limited liability company, N. OOD, joined the proceedings before the Regional Court, after it was accepted that the company had locus standi because it owned a share of the plot of land of 12,600 square metres. No other third party joined the proceedings at this time, despite the plot having several other co-owners.

All parties lodged appeals against the Regional Court’s judgment, but it was upheld by the Supreme Administrative Court (“the SAC”) on 17 September 2001.

The case was subsequently sent back to the Regional Court for the second stage of the proceedings, namely the determination of the exact amount of compensation to be awarded. In a judgment of 17 December 2001 the Regional Court held that the applicant was to receive 91.04% of the State-owned share of the larger plot and compensation bonds with a face value of 8,400 Bulgarian levs (BGN).

On 28 December 2001 the regional governor appealed to the SAC against the judgment of the Regional Court. However, the proceedings were stayed owing to the submission of several requests to have the first stage of the proceedings reopened (see below).

On 14 January 2002 the applicant’s brother lodged an application to set aside the Regional Court’s judgment of 3 November 2000, as upheld by the SAC on 17 September 2001, and to have the proceedings reopened. He referred to evidence which he considered to be newly discovered. His application was dismissed on 7 July 2002.

On an unspecified date, a Mr H.H. also applied to have the first stage of the proceedings reopened, arguing that, as a co-owner of the plot of 12,600 square metres, he was an interested party and should have been notified of the proceedings and given an opportunity to participate. He explained that he had become aware of the judgments of 3 November 2000 and 17 September 2001 in March 2002 when he had visited the local municipality.

On 14 December 2002 the SAC dismissed Mr H.H.’s application.

On 24 February 2003 Ms E.H., wife of Mr H.H., also applied to have the judgment of 3 November 2000 set aside and the proceedings reopened, arguing that she was also a co-owner of the plot and had been deprived of an opportunity to participate. She stated that she had become aware of the impugned judgment in February 2003 when she had visited the municipality.

On 28 March 2003 Ms D.K., a further co-owner of the plot of land, applied to have the proceedings reopened, putting forward arguments similar to those made by Ms E.H. Ms D.K. stated that she had become aware of the impugned judgment in March 2003.

On 17 April 2003 Mr H.H., Ms D.K. and the company N. OOD sent a letter to the Chief Public Prosecutor’s Office, urging it to propose that the proceedings be reopened, on the ground that some of the co-owners of the plot had not been given an opportunity to participate. The applicant alleged before the Court that their letter had actually been received by the Chief Public Prosecutor’s Office exactly a year earlier and filed as part of her evidence a copy of the letter bearing the date 17 April 2002 next to the acknowledgment-of-receipt stamp. The Government, however, submitted a copy of the same letter together with a copy of the relevant entry of the register of documents filed with the Chief Public Prosecutor’s Office, which were both dated 17 April 2003.

On 27 May 2003 the Deputy Chief Public Prosecutor introduced a proposal for the judgment of 3 November 2000 to be set aside and the proceedings to be reopened, noting that Ms E.H. and Ms D.K. had not been notified of the proceedings and given an opportunity to participate. He pointed out that the two women had become aware of the impugned judgment in February and March 2003, referring to a letter he had received at his office on 17 April 2003.

In a judgment of 25 July 2003 the SAC allowed the requests, set aside the Regional Court’s judgment of 3 November 2000 and reopened the proceedings. It considered that Ms E.H.’s and Ms D.K.’s applications had been lodged within the relevant three-month time-limit (see paragraph 33 below), as it had been impossible to establish with certainty the date upon which they had actually become aware of the impugned judgment. The SAC also found that since Ms E.H. and Ms D.K. were both co-owners of the above-mentioned plot of land they had a legitimate interest in the outcome of the contested proceedings, which had directly affected their rights and obligations.

The applicant lodged an appeal against the above-mentioned judgment, which was dismissed as inadmissible on 3 December 2003.

Following that, the SAC resumed examination of the regional governor’s appeal against the Regional Court’s judgment of 17 December 2001 (see paragraphs 11-12 above). On 12 February 2004, referring to its decision to reopen the first stage of the proceedings, it quashed the judgment and remitted the case to the Regional Court.

After it started re-examining the case, the Regional Court allowed several individuals and two companies to join the proceedings. It gave judgment on 11 May 2005. It again quashed the regional governor’s decision of 2 June 1998 and held that the applicant was entitled to receive compensation for her mother’s expropriated property by way of a share of the plot of land measuring 12,600 square metres in total, as well as through compensation bonds.

Two of the parties lodged an appeal. On 11 July 2006 the SAC upheld the Regional Court’s judgment.

The case was subsequently returned to the Regional Court for the second stage in the proceedings, namely the determination of the amount of compensation to be awarded to the applicant. The Regional Court gave judgment on 22 November 2007. In respect of the share of the plot of land measuring 12,600 square metres, it held that the applicant’s share could not exceed the State-owned share. However, it held that the relevant date on which it was to base its assessment of the State-owned share was 25 February 1992, because, pursuant to an express provision of the Compensation Law (see paragraph 29 below), any transfer of property after that date could not limit the interested parties’ entitlement to compensation. In 1992 the State-owned share of the plot had amounted to 5,705 square metres, and in 2007 it amounted to 1,822 square metres, the remainder of the land being the property of the other co-owners. The applicant was entitled to a share measuring 4,293.86 square metres, which meant that the shares of the remaining co-owners had to be reduced accordingly. In respect of the compensation bonds to be awarded to the applicant, the Regional Court awarded bonds with a face value of BGN 9,200.

Two of the parties lodged appeals against the above-mentioned judgment. The SAC held a hearing on 6 November 2008, following which the proceedings were stayed.

On 15 October 2008 Ms E.H. made an application to set aside the Regional Court’s judgment of 11 May 2005, as upheld by the SAC on 11 July 2006, and to have the first stage of the proceedings reopened. She referred to newly discovered evidence. On 12 February 2009 the application was dismissed as time-barred by a five-member panel of the SAC. It appears that a subsequent appeal by Ms E.H. to a seven-member panel of that court was dismissed on an unspecified date.

On an unspecified date the SAC resumed its examination of the two appeals against the Regional Court’s judgment of 22 November 2007 (see paragraphs 25-26 above). On 26 March 2010 it dismissed them.

After the fall of communism, the Bulgarian Parliament introduced a series of restitution laws and, in November 1997, the Law on Compensation for Owners of Nationalised Real Property (“the Compensation Law”), which provided, in cases where restitution had been impossible, for compensation to former owners of nationalised property or their heirs, through different means, such as transfer of State or municipally-owned shares in properties, or the award of compensation bonds. Requests under the Compensation Law were to be addressed to the regional governor or the relevant minister.

Once the regional governor had received such a request, the procedure unfolded in two stages. Firstly, the regional governor had to decide whether the interested parties were entitled to compensation. The regional governor then issued a second decision, based on an expert report, determining the amount of compensation to be awarded. The decisions taken at the different stages of the procedure were subject to judicial review.

The regional governor’s refusal to acknowledge the interested parties’ right to compensation is subject to judicial review in a two stage procedure; the first stage established the right to compensation and the means thereof, and the second determined the amount of compensation to be awarded.

Until 2006 the rules concerning judicial review of administrative measures were contained in the 1979 Administrative Procedure Act, which obliged the domestic court examining an appeal against an administrative measure to notify all interested parties of the appeal (section 41(2)); those parties could then join the proceedings and defend their rights. Similar provisions were contained in section 21(1) of the 1997 Supreme Administrative Court Act, in force until 2007. Since 2006, such matters have been regulated by the Code of Administrative Procedure, which contains similar requirements.

Before 2006 the conditions and procedure for judicial review proceedings were set out in the Code of Civil Procedure (Article 231 et seq.) A third party could apply to have such proceedings reopened in cases where they had been adversely affected by a final judgment and unduly deprived of the opportunity to participate in the proceedings. The requisite time-limit for parties to make applications for the reopening of proceedings was three months from the date upon which the third party became aware of the judgment at issue. According to the SAC’s settled practice, compliance with the three-month time-limit did not depend on the time which had passed since the judgment’s entry into force, because the third parties’ rights would otherwise be seriously undermined.

The relevant provisions of domestic law have been summarised in the Court’s decisions in the cases of Balakchiev and Others v. Bulgaria ((dec.), no. 65187/10, §§ 18-37, 18 June 2013) and Valcheva and Abrashev v. Bulgaria ((dec.), nos. 6194/11 and 34887/11, §§ 47-66, 18 June 2013).


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1983 and is currently serving a sentence of imprisonment in Berdychiv Prison no. 70.

At the time of the events the applicant had four criminal convictions for theft, in particular. He had been released from prison in October 2007.

From January 2008 onwards, a number of armed robberies and thefts were committed in the Kyiv and Vinnytsia regions.

On 16 July 2008 the Vinnytsia Police Department for Combating Organised Crime, having received some preliminary reports concerning the possible involvement of the applicant in the aforementioned crimes, arrested him together with his brother and an acquaintance. The police approached them when they were in a car at a fuel station. They attempted to flee, but without success. The police broke the side window and, having overcome the resistance of those inside, took them out by force and handcuffed them. Two passers-by witnessed this and gave written explanations to that effect to the police, in which they confirmed the above.

Several guns, gas sprays, some jewellery and several pairs of gloves were found in the car.

The officers wrote a report stating that the detainees had demonstrated manifest disobedience to their orders and had attempted to escape, in response to which martial arts techniques had been practised and handcuffs had been applied to them. The report noted that no firearms had been used.

On the same day, 16 July 2008, the applicant confessed to several counts of theft and robbery. He also wrote a note stating that he had no complaints against the police and that no physical or psychological coercion had been applied to him.

On 17 July 2008 the police drew a report on an administrative offence (a minor offence under Ukrainian legislation) committed by the applicant. It stated that during his arrest he had manifested malicious disobedience to a lawful order given by police officers in breach of Article 185 of the Code of Administrative Offences (see paragraph 67 below).

On the same day the applicant wrote a statement to the effect that during his arrest he had resisted the police and had tried to escape and that he regretted his behaviour.

Still on that day the Zamostyanskyy District Court of Vinnytsia (“the Zamostyanskyy Court”) found the applicant guilty under Article 185 of the Code of Administrative Offences and sentenced him to ten days’ administrative detention commencing at 11:20 a.m. on 16 July 2008.

It appears from the material in the case file (see paragraph 42 below) that on 17 July 2008 the applicant was examined by doctors after his admission to the Vinnytsia Temporary Detention Facility (ITT). The examination revealed scratches and bruises on his right shoulder. No complaints or requests for medical assistance from the applicant were recorded.

On 16, 17, 18, 19 and 22 July 2008 the applicant confessed to numerous counts of theft and robbery committed in the Vinnytsia and Kyiv regions. All his confessions were accompanied by written statements by the investigator co-signed by the applicant to the effect that the latter had had his rights explained to him. Furthermore, each confession was accompanied by a written waiver by the applicant of his right to legal assistance.

On 25 July 2008 the investigator detained the applicant on suspicion of banditry, numerous counts of theft and armed robbery, money laundering, hooliganism, and illegal arms possession and handling. The applicant signed the report and stated that he agreed with his detention.

On 25 and 26 July 2008 the applicant confessed to some other episodes of theft and robbery.

On 26 July 2008 he was examined by a general practitioner on duty in Central Vinnytsia City Hospital no. 2. The applicant did not raise any complaints and the examination did not reveal any injuries or pathologies.

On the same day the applicant was transferred to Vyshgorod in the Kyiv region, where he was detained till 7 August 2008 in the local temporary detention centre (the “ITT”) described by him as a metal cage in the police station.

On 28 July 2008 the Zamostyanskyy Court remanded the applicant in custody as a preventive measure pending trial.

On 30 July 2008 the applicant had his chest X-rayed in a tuberculosis dispensary, with no anomalies having been revealed.

On 2, 3, 4, and 5 August 2008 he reiterated his earlier confessions and confessed to yet more crimes. Like before, all those confessions were accompanied by written confirmation of the explanation to the applicant of his rights and by the applicant’s waiver of his right to a lawyer.

On 7 August 2008 the applicant was taken to the Brovary Town Police Department in the Kyiv region. He underwent a standard initial medical examination there. As noted in the respective journal, he raised no complaints and the examination revealed no bruises, lice or scabies.

On 14 August and on 2 September 2008 the applicant again reiterated his confessions and waived his right to legal representation.

On 3 September 2008 an ambulance was called for him. This was recorded as entry no. 370 in the medical assistance journal. The copy of the journal provided to the Court by the Government ends at entry no. 369. No further information is available concerning the applicant’s condition on 3 September 2008 (see also paragraph 57 below).

On 9 September 2008 an ambulance was again called for the applicant. According to a memo issued by the governor of the Brovary ITT on 27 October 2008, this was done in response to the applicant’s complaining of headache.

According to the applicant, on 11 September 2008 he complained to the Brovary Town Prosecutor’s Office about his ill-treatment, but his complaint remained without response.

On 11 September 2008 the applicant was transferred from Brovary to Vyshgorod. It appears from the material in the case file (see paragraph 42 below) that he was examined by a doctor at his arrival in the Vyshgorod ITT. Some bruises on his shoulders, an abrasion on his right temple and an abrasion on his right elbow were documented. According to the examination report, the applicant raised no complaints and did not seek medical assistance.

On 16, 22 and 26 September 2008 the applicant reiterated his earlier confessions and confessed to yet more crimes. He also signed reports confirming that his rights had been explained to him and waived his right to a lawyer.

On 25 September 2008 the applicant refused to accept a food parcel from his parents handed to him by the Vinnytsia ITT administration. As confirmed by notes written by the applicant’s cell mates, he did so because the cigarettes and the food had been cut into small pieces. The applicant refused to sign any report or write any explanation.

On 30 September 2008 the pre-trial investigation was declared complete and the case was referred to court for trial.

On 7 October 2008 the applicant complained to the Vinnytsia Regional Prosecutor’s Office that from 16 to 26 July 2008 he had been ill-treated by the police in the Vinnytsia ITT. The alleged ill-treatment included being beaten, strangled with a plastic bag and suspended from an iron bar. The applicant also submitted that he had received the threat that, if he did not confess, his brother would be imprisoned for life on a false charge of murder. Accordingly, the applicant contended that he had been coerced into signing numerous confessions and waivers of legal assistance. He further complained that from 26 July to 7 August 2008 his ill-treatment had continued in the Vyshgorod ITT. He noted that, although his parents had hired a lawyer for him, he had continuously been forced to waive his right to legal assistance. Lastly, the applicant complained about having suffered psychological pressure and humiliations from the Brovary ITT personnel from 7 to 30 August 2008. He noted that his complaint to the Brovary Prosecutor had been without reply.

On 13 October 2008 the applicant complained to the Vinnytsia Regional Police Department about the attitude of the Vinnytsia ITT personnel towards him, which he considered humiliating. He referred, in particular, to the incident with the food parcel of 25 October 2008.

On an unspecified later date the chief of the aforementioned police department issued an internal inquiry report stating that no food parcels for the applicant had been received during the period of his detention in the ITT from 16 to 30 July 2008 and that the applicant had been arrogant and rude to the administration.

On 14 October 2008 the investigator of the Vinnytsia police department dealing with the applicant’s case gave written explanations to the regional prosecution in respect of the applicant’s allegations of ill-treatment. He submitted that the applicant and those detained as his accomplices had given their confessions and waived their right to a lawyer in a voluntary manner. Since legal representation was not mandatory in the circumstances, those waivers had been accepted. The other police officers concerned gave similar explanations.

On 15 October 2008 the applicant complained to the Minister of the Interior that he had been subjected to various kinds of ill-treatment and humiliation in all the detention facilities. He alleged, in particular, that on 11 September 2008 he had been ill-treated by the Vinnytsia police officers for about eight hours and that his ill-treatment had included beatings, strangling with a plastic bag, hanging from an iron bar and the insertion of a baseball bat into his anus. The applicant also submitted that the Vinnytsia police had failed to deliver a food parcel to him, had extorted a bribe from him and had not allowed him to see the lawyer contracted by his parents.

On 18 October 2008 ‒ in response to the applicant’s complaint of ill-treatment ‒ the Vinnytsia Regional Prosecutor’s Office issued a ruling announcing its refusal to institute criminal proceedings against the police officers of the local police department. The officers concerned had been questioned and had contested the applicant’s allegations as untruthful. As noted in the ruling, there was no indication that the applicant had sustained any injuries or that he had complained previously. It was therefore considered clear that he had given his confessions voluntarily.

On 27 October 2008 the governor of the Brovary ITT issued a memo, apparently at the prosecutor’s request, about the applicant’s detention in that facility. It stated that no physical force had been used against the applicant. The memo noted the fact that an ambulance had been called for the applicant following his complaints of headaches on 9 September 2008, but with no further details.

On 31 October 2008 K., the lawyer contracted by the applicant’s parents on an unspecified earlier date, asked the Staromiskyy Court for a meeting with the applicant. On the same date that request was allowed.

On 7 November 2008 the applicant was examined by doctors in the Vinnytsia SIZO. They found him in good health. The examination report noted that the applicant did not raise any complaints and that there were no injuries on him. It should be noted that the copy of the aforementioned report in the case file before the Court, as it stood prior to the communication of the application to the Government, was of very poor quality. Moreover, the report was written in barely legible handwriting. According to the summary of the facts prepared by the Court at that stage, the report in question had referred to several bruises on the applicant. However, as it has since emerged, there were two reports copied on the same page: one of 7 November 2008 and one of 5 February 2009, and it was the latter report which had noted the applicant’s injuries (see paragraph 54 below).

On 10 November 2008 a senior official of the Vinnytsia Regional Police Department for Combating Organised Crime delivered a report on the internal investigation into the applicant’s complaints of ill-treatment (as summarised in paragraph 37 above). The investigation had consisted mainly of questioning of the police officers involved, who had denied any ill-treatment of the applicant. The report noted that the medical examinations of the applicant of 17 July and 11 September 2008 had revealed some injuries which had been inflicted in unestablished circumstances (for more details see paragraphs 15 and 29 above). It was decided that the internal investigation be considered complete, the conclusion being that it had not established any evidence to support the applicant’s complaints.

On 19 November 2008 the Vinnytsia Regional Prosecutor’s Office refused to institute criminal proceedings against the officials of the Vinnytsia ITT in respect of the allegedly inadequate conditions of the applicant’s detention and his ill-treatment there. It was noted in the ruling that the ITT officials had been questioned and had denied any ill-treatment of the applicant. They had also submitted that he had been detained in adequate conditions.

On 20 November 2008 the Vinnytsia Regional Prosecutor issued another ruling refusing the institution of criminal proceedings ‒ this time against the police officers of the Vinnytsia Regional Police Department for Combating Organised Crime, who had been involved in the applicant’s apprehension and the subsequent investigative measures ‒ for the lack of corpus delicti in their actions. The officers submitted that the applicant and his accomplices had manifested malicious disobedience to the orders of the police on 16 July 2008. As a result, “measures of physical intervention and ... handcuffing” had been applied to them. Furthermore, according to the police officers’ statements, the detainees had made their confessions voluntarily. Lastly, the prosecutor noted that the applicant had been examined by doctors on 26 and 30 July 2008, when no injuries were documented or complaints raised (see paragraphs 19 and 22 above).

On 4 December 2008 the Vyshgorod Town Prosecutor’s Office refused to institute criminal proceedings against the Vyshgorod police officers, for the lack of corpus delicti in their actions. The prosecutor noted that the officers in question had denied the veracity of the applicant’s allegations of ill-treatment. Furthermore, it appeared that the applicant himself had eventually retracted his complaints.

On the same day the Brovary Town Prosecutor’s Office also refused to institute criminal proceedings against the Brovary police as regards the conditions of the applicant’s detention in the local ITT. The decision was based on the explanations of the respective police officers.

On 5 January 2009 the applicant refused the services of the lawyer retained by his parents and asked the Staromiskyy Court to allow his parents time to find a new lawyer for him.

On 15 January 2009 he repeated the above refusal and asked the court to conduct its hearing with the participation of his sister, who had earlier been admitted in the proceedings as his “civil defender”.

On 15 January 2009 the applicant complained to the Staromiskyy Court that he had been subjected to ill-treatment by the police on 16 July 2008 and thereafter. He submitted that all his confessions and waivers of legal assistance had been given under duress.

On the same date the applicant also complained of his ill-treatment in police custody to the Prosecutor General’s Office.

On 27 January 2009 the Staromiskyy Court appointed a free lawyer for the applicant, since his parents had not retained a new lawyer for him.

On 4 February 2009 the Staromiskyy Court instructed the Kyiv and Vinnytsia Regional Prosecutor’s Office to investigate the applicant’s complaints of ill-treatment.

On 4 February 2009 the applicant was examined by a doctor, who recorded the absence of any injuries, apart from some old scars on both forearms. No further details concerning this examination are available.

On 5 February 2009 the applicant underwent another medical examination which revealed bruises on his buttocks measuring 7x10 cm and 15x10 cm respectively, as well as abrasions on his wrists caused by handcuffs. Another bruise measuring about 15 x ? cm was recorded (the copy of the report in the case file is illegible in this respect; nor is it possible to read where that bruise was located). It is not clear in what circumstances and where that examination was carried out. It has not been commented on by any of the parties.

On 5 March 2009 the Vyshgorod Town Prosecutor’s Office refused to institute criminal proceedings against the police officers in the light of their statements denying the veracity of the applicant’s complaints.

On 11 March 2009 the Kyiv Regional Prosecutor’s Office quashed the aforementioned ruling as premature and superficial. It criticised the prosecutor’s failure to clarify when and on what grounds the applicant had been taken to the Vyshgorod ITT before his further transfer to the Brovary ITT, when he had been detained in the Brovary ITT, which of the police officers had been assigned to him and when. Furthermore, it observed that it was essential to question all the doctors who had examined the applicant and had provided him with medical assistance. According to the applicant, it was after his detention in the Vyshgorod ITT that he had requested medical assistance. It was also necessary to analyse all the records pertaining to the ambulance calls made for the applicant, as well as the report on his initial medical examination in the Brovary ITT. Lastly, the applicant’s complaints concerning the refusal to allow a lawyer to see him warranted investigation.

On 24 March 2009 a senior officer in the Vyshgorod police department issued a memo noting that he had visited the Brovary ITT, where he had consulted the medical examination and assistance journal. Two records, those of 7 August and 3 September 2008, concerned the applicant. The ambulance doctor had been questioned. She had recognised her signature next to the record of 3 September 2008 and had verbally explained that she had provided the applicant with the assistance documented in the record. However, she had refused to make any written statements. The memo in question did not contain any further details as to the applicant’s condition on 3 September 2008 or what medical assistance had been provided to him (see also paragraph 26 above).

On 6 May 2009 the Staromiskyy Court found the applicant guilty on seventeen counts of aggravated theft and robbery and sentenced him to eleven and a half years’ imprisonment, as well as confiscation of all his personal property. The confiscated property included a house and a car which had been purchased by the applicant’s parents, but which the court considered to have been bought using the revenue from his criminal activities. The applicant was acquitted of the charges of banditry, money laundering, hooliganism and illegal arms handling. The court noted that the applicant had cooperated with the investigation. At the court hearing, the applicant commented on only two of the charges against him: he denied his participation in one episode of theft and one episode of robbery and submitted that he had earlier confessed to those two episodes under duress. The court dismissed that allegation as unsubstantiated.

The applicant appealed, submitting that he had voluntarily confessed to the criminal offences in question and had shown remorse. Referring to his cooperation with the investigation, as well as the fact that he had a child who was a minor, the applicant sought mitigation of his sentence. He also contested the confiscation-related part of the verdict.

On 16 July 2009 the Vinnytsia Regional Court of Appeal rejected his appeal.

On 16 December 2009 the applicant lodged an appeal on points of law. He submitted that the lower courts’ decisions should be quashed as being contrary to Article 59 of the Constitution (right to legal assistance – see paragraph 65 below) and Article 398 of Code of Criminal Procedure (listing grounds for the annulment of a judgment – see paragraph 66 below). The applicant contended that he had not committed the crimes of which he had been found guilty and that he had incriminated himself after succumbing to “psycho-physical influence and deception by the police”.

On 26 February 2010 the Supreme Court rejected the applicant’s request for leave to appeal on points of law. As to his submission on the ostensibly involuntary nature of his confessions, the Supreme Court noted that the first-instance court had not established any facts showing any coercion of the applicant and he had not disputed that in his appeal. The Supreme Court furthermore observed that the applicant’s allegation of breach of the criminal procedural legislation were too vague.

On 18 August 2010 the Prosecutor General’s Office wrote to the applicant stating that it had instructed the Vinnytsia Regional Prosecutor’s Office to investigate his complaints of ill-treatment.

On 2 September 2010 the Vinnytsia Regional Prosecutor’s Office also wrote to the applicant stating that it had already dismissed his complaints, namely on 20 November 2008 (see paragraph 44 above). The prosecutor also referred to a similar ruling by the Kyiv Regional Prosecutor’s Office of 7 November 2008 (the case file before the Court does not contain a copy of the quoted ruling and there is no information about its contents).


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

András Sajó;Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1966 and is currently detained at Sátoraljaújhely Prison.

On 19 October 2001 he started to serve a prison sentence at Szeged Prison, where he remained until 30 January 2006. According to the applicant, he spent 63 months with eleven other inmates in three different cells (nos. 356, 358 and 215) measuring 27 square metres each, including sanitary facilities. The cells were equipped only with one tap and a toilet, separated from the living area only by a curtain. The dining table was fixed to the floor just a metre away from the toilet. The applicant had a daily onehourlong outdoor activity. The yards were closed premises measuring 40 by 20 metres, about 100-150 persons being taken to the yard at a time.

The applicant was also entitled to thirty minutes’ exercise in the gym three times a week. He attended secondary school classes three times a week, six hours on each occasion.

On 30 January 2006 the applicant was transferred to Budapest Prison Unit “B”, where his cells (nos. 316, 130, 325, 211, and 206) measured 27 square metres and were occupied by him and seven other men (that is, 3.4 square metres gross living space per inmate). The cells had no ventilation system and were infested with parasites. Detainees were permitted to take a shower once a week, according to the applicant, in unhygienic conditions and for no longer than 1-2 minutes.

The applicant was entitled to a daily walk of about one hour in the prison yard measuring 20 by 20 metres. He indicated, however, that he was not able to go outdoors during the period between 20 June 2009 and 12 May 2010 on those days when he was employed as a librarian.

Between 12 May 2010 and 27 May 2011 the applicant continued to serve his sentence in Unit “A” of Budapest Prison. He was kept in five cells described as follows: cell nos. 8, 9 and 141 (8 square metres, three inmates), and cell nos. 3 and 252 (6.5 square metres, two inmates). Only a curtain was used as a partition between the toilet and the living area.

Throughout his detention the applicant had no out-of-cell activities other than a daily one-hour walk in the yard of the prison facility, gym exercise twice a week for about 50 minutes each time and a weekly visit to the library for about 15 minutes.

The inmates were allowed one shower per week. The shower room was equipped with four shower heads. There were about 25 inmates taken to have a shower at the same time, making it impossible to move around because of the sheer number of prisoners.

On 27 May 2011 the applicant was transferred back to Unit “B” of Budapest Prison, where he spent two years in five different cells.

The size of those cells was 27 square metres. The occupancy rate varied between 8 persons (that is, 3.38 square metres gross living space per inmate) and 10 persons (that is 2.7 square metres gross living space per inmate).

Since 16 June 2013 the applicant has been detained at Sátoraljaújhely Prison with three other inmates in a cell measuring 8 square metres.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal conviction for drug dealing.

The applicants disagreed with their conviction and argued that the police incited them to commit drug-related offences.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev

The applicant was born in 1961 and lives in Korenovsk.

Between 6 October 2005 and 21 December 2005 the applicant was held in remand prison IZ-23/1 in Krasnodar. The prison was overcrowded. Thus, the applicant’s cell measuring eighteen sq. m was equipped with four sleeping places and accommodated up to eight inmates; cell 187 measuring ninety-six sq. m was designed for twenty-eight individuals and housed up to thirty-six prisoners.

On 19 October 2005 the Korenovskiy District Court of the Krasnodar region convicted the applicant of embezzlement and sentenced him to five years and six months’ imprisonment. On 21 December 2005 the Krasnodar Regional Court upheld the judgment on appeal.

Between 21 December 2005 and 20 April 2006 the applicant served his sentence in the IK-9 facility, a correctional colony located in the Krasnodar Region. The dormitory in which the applicant slept measured 198 sq. m, it offered forty-nine sleeping places but actually accommodated up to seventy inmates.