CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 10 mai 2012

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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 1.     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 1.     The facts of the case, as submitted by the parties, may be summarised as follows. 2.     The applicant, a former customs officer, was charged with accepting a bribe from another customs officer, P.D., in 2004. 3.     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. 4.     Subsequently, on 9 November 2006, the same court, in the same composition, convicted the applicant of accepting the same bribe from P.D. 5.     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. 6.     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perpetrator of the same offence, the judge who had examined the evidence against the convicted perpetrator should be withdrawn from examining the cases against the remaining perpetrators (see “Relevant domestic law and practice” below). 7.     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Court’s resolution of 26   April   2007 submitted that the judges who had convicted the applicant should have been withdrawn from the proceedings.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). 8.     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 9.     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.” 10.     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.” 11.     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.” 12.     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 (...).” 13.     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 14.     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.” 15.     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. 16.     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. 17.     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). 18.     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. 19.     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. 20.     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