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FOURTH
SECTION
DECISION
Application no.
17519/08
Robert ŚLIWA
against Poland
The
European Court of Human Rights (Fourth Section), sitting on 10 May
2012 as a Chamber composed of:
David
Thór Björgvinsson,
President,
Lech
Garlicki,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Nebojša
Vučinić,
Vincent
A. De Gaetano,
judges,
and Lawrence Early,
Section Registrar,
Having
regard to the above application lodged on 2 April 2008,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
regard to the comments submitted by the Polish Government,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Robert Śliwa, is a Polish national who was born in
1969 and lives in Jarosław. He was represented before the Court
by Mr P. Blajer, a lawyer practising in Jarosław. The
Polish Government (“the Government”) are represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The
applicant, a former customs officer, was charged with accepting a
bribe from another customs officer, P.D., in 2004.
- On
29 August 2006 P.D. was convicted by the Przemyśl Regional Court
of, inter alia,
offering a bribe to the applicant in 2004. The court was composed of
Judge A.S., and two lay judges, D.B. and C.J.
- Subsequently,
on 9 November 2006, the same court, in the same composition,
convicted the applicant of accepting the same bribe from P.D.
- On
an unspecified date the applicant’s lawyer appealed against the
first instance judgment. In his appeal he did not raise a
complaint regarding the composition of the court.
- On
26 April 2007 the Supreme Court adopted a resolution and held that in
circumstances such as those in the present case, where evidence which
had constituted the basis for the conviction of one of the
perpetrators of a crime was also to be the basis for the conviction
of another perpetrator of the same offence, the judge who had
examined the evidence against the convicted perpetrator should be
withdrawn from examining the cases against the remaining perpetrators
(see “Relevant domestic law and practice” below).
- On
17 August 2007 the applicant’s lawyer sent a letter to the
second instance court and, relying on the Supreme Court’s
resolution of 26 April 2007 submitted that the judges who
had convicted the applicant should have been withdrawn from the
proceedings. He further requested the Court of Appeal to examine the
circumstances of the case from the point of view of Article 440 of
the Code of Criminal Proceedings (“the Code”) (see
below).
- On
18 October 2007 the Rzeszów Court of Appeal dismissed the
appeal and upheld the first-instance judgment. It admitted that the
three judges should not have examined the applicant’s case.
However, it found that the complaint had not been raised in the
appeal and therefore could not be taken into account as one of the
bases of the appeal. It also considered that the shortcoming in the
proceedings before the first-instance court did not constitute one of
the specific grounds for appeal referred to in Article 439 of
the Code, which the court of appeal had to take into account ex
officio. The Court of Appeal further
noted that the only way to amend the first-instance judgment was to
apply Article 440 of the Code; however, it found no grounds to do so.
B. Relevant domestic law and practice
- Article 41 § 1 of the Code provides as follows:
“A judge shall be withdrawn from the examination
of a case if there are circumstances which may give rise to justified
doubts as to his or her impartiality in a particular case.”
- Article
440 of the Code provides as follows:
“If upholding a first-instance judgment would be
manifestly unjustified, the judgment shall be amended in favour of
the accused person or quashed, notwithstanding the complaints raised
in an appeal.”
- Article
433 of the Code provides as follows:
“The appellate court shall examine the case within
the framework of an appeal. It shall examine the case beyond the
framework of an appeal if it is provided for by law.”
- Article
439 of the Code, in so far as relevant, provides as follows:
“Irrespective of the framework of an appeal, the
complaints raised and the influence of a shortcoming on the contents
of a decision, the appellate court shall quash the challenged
decision if:
(1) the decision was issued by or with the
participation of a judge who should have been withdrawn pursuant to
Article 40 of the Code (...).”
- On
26 April 2007 the Supreme Court adopted a resolution in which it
stated as follows:
“If evidence which has constituted the basis for
the conviction of one of the perpetrators of a crime is also to be
the basis for the conviction of another perpetrator of the same
offence, the judge who examined the evidence against the convicted
perpetrator should be withdrawn from examining the cases against the
remaining perpetrators, on account of a justified suspicion regarding
his or her impartiality within the meaning of Article 41 § 1 of
the Code of Criminal Procedure.”
THE LAW
- The
applicant complained under Article 6 § 1 of the
Convention that he was deprived of a “fair hearing” by an
“impartial tribunal established by law”. The relevant
part of the Article reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
- The
Government submitted that the applicant had failed to exhaust all
available domestic remedies because, firstly, he should have lodged a
request under Article 41 of the Code that the judges be withdrawn
from the proceedings and, secondly, that he should have raised the
complaint as regards the composition of the court in his appeal
lodged within the prescribed time-limit. The Government further
argued that the applicant’s letter sent to the appellate court
on 17 August 2007 could not be considered to be a part of
his appeal. It followed that the appellate court could not examine
the complaint about the composition of the court as one of the
grounds of the applicant’s appeal. It could only examine the
complaint under Article 440 of the Code, but found no sufficient
grounds to do so.
- The
applicant’s lawyer submitted that the applicant had exhausted
all available domestic remedies and referred to the Government’s
arguments as “groundless”. However, he failed to specify
the reasons for his opinion.
- The
Court reiterates that as regards the principle of exhaustion of
domestic remedies, in determining whether any particular remedy meets
the criteria of availability and effectiveness, regard must be had to
the particular circumstances of the individual case. Account must be
taken not only of the formal remedies available, but also of the
general legal and political context in which they operate as well as
the personal circumstances of the applicant (Van Oosterwijck v.
Belgium, judgment of 6 November 1980, §§ 36-40;
Akdivar v. Turkey, judgment of 16 September 1996, §§
68-69; Khashiyev and Akayeva v. Russia, judgment of 24
February 2005, §§ 116-117; and Isayeva and Others v.
Russia, judgment of 24 February 2005, §§ 152-153).
- Turning
to the circumstances of the present case, the Court notes at the
outset that the applicant indeed failed to lodge with the
first-instance court a request under Article 41 of the Code for
withdrawal of the judges sitting in his case. However, the Court
considers, that there is no need to examine whether this particular
remedy would in the circumstances of the present case be effective or
not, because the applicant failed to raise, even in substance, the
core of his complaint in his appeal against the first-instance
judgment. Had the applicant raised his complaint about the
composition of the first-instance court in his appeal, the
second-instance court would have been under an obligation to examine
it. The Court accepts that the letter, sent to the second-instance
court by the applicant’s lawyer several months after the
time-limit for lodging an appeal had expired, could not be regarded
as extending the basis of the appeal. This finding cannot be changed
by the fact that the Supreme Court’s resolution referred to
above was adopted after the expiry of the applicant’s
time-limit to appeal. If the applicant considered that the
proceedings before the first-instance court did not satisfy the fair
trial requirements, he should have raised this in his appeal.
- As
regards the second-instance court’s refusal to examine the
applicant’s additional complaint under Article 440 of the Code,
the Court considers that this is a matter of interpretation of the
domestic law which is primarily the task of domestic authorities.
- For
these reasons the Court considers that by failing to raise the
complaint about the composition of the first-instance court in his
appeal the applicant failed to exhaust domestic remedies.
It
follows that the application must be declared inadmissible in
accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early David Thór Björgvinsson
Registrar President
