CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 avril 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sDD7CB8CD { margin-top:36pt; margin-bottom:12pt; text-align:center; font-size:7pt } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase }     Communicated on 14 April 2014   FOURTH SECTION Applications nos. 46307/09 and 72932/12 Mirosław ZBOROWSKI against Poland lodged on 12 August 2009 STATEMENT OF FACTS 1.     The applicant, Mr Mirosław Zborowski, is a Polish national, who was born in 1958 and lives in Poznań. A.     The Court’s judgments in the applicant’s earlier cases 2.     In the judgment Zborowski v. Poland , no. 13532/03 of 31   October 2006 the Court found a violation of Article 5 § 3 of the Convention on account of the lack of sufficient reasons for the applicant’s detention on remand. 3.     In the judgment Zborowski v. Poland (no. 2), no.   45133/06 of 15   January 2008 the Court found a violation of Article 8 of the Convention in respect of the monitoring of the applicant’s correspondence with his defence counsel, the State authorities and the Council of Europe Information Office. 4.     In the judgment Zborowski v. Poland (no. 3) , no.   39519/05 of 22   April 2008 the Court found a violation of Article 8 of the Convention in respect of the monitoring of the applicant’s correspondence with his defence counsel between 5 February and 17   October 2001. B.     The circumstances of the case 5.     The facts of the case, as submitted by the applicant, may be summarised as follows. 6.     The applicant was a legal counsel ( radca prawny ). He was arrested on 18   January 2001 on suspicion of numerous counts of property fraud. On 19   January 2001 the Gorzów Wielkopolski District Court remanded the applicant in custody. His detention on remand was subsequently prolonged on numerous occasions. The applicant was released on bail on 18   January 2005. The facts concerning his detention on remand are set out in the judgment Zborowski v. Poland . On 5 November 2001 the prosecution filed a bill of indictment with the Poznan District Court. The applicant was charged with numerous counts property frauds, committed jointly with others, by means of the use of forged wills and of false statements of future heirs in inheritance proceedings. Subsequently, the case was transferred to the Szamotuły District Court. 7.     On 23 April 2004 the Szamotuły District Court convicted the applicant of five counts of property fraud and acquitted him of two charges. It sentenced the applicant to eight years’ imprisonment and a fine. The court also imposed an eight-year ban to practice as a legal counsel. The applicant appealed. On 15 January 2005 the Poznań Regional Court quashed the first-instance judgment in respect of the applicant’s conviction and remitted the case in this part. It found that the applicant’s defence rights were infringed in the proceedings before the trial court. 8.     On 26 June 2007 the Szamotuły District Court, composed of assessor RO and two lay judges, gave judgment. It convicted the applicant of five counts of property fraud committed with the use of forged wills and/or false statements of heirs in inheritance proceedings. The court sentenced the applicant to a cumulative penalty of eight years of imprisonment and a fine of PLN   40,000. It also imposed an eight-year ban on the applicant to practise as a legal counsel. The applicant was ordered to jointly with ML compensate damage of 4,000,000 PLN sustained by the State Treasury. The court credited the period of his pre-trial detention between 18   January 2001 and 18 January 2005 towards the term of his imprisonment. The applicant was also ordered to pay the costs. 9.     The applicant appealed. He alleged, in particular, that the first-instance court was composed of the assessor who was not independent. Furthermore, the manner of conducting the trial by the assessor demonstrated that she was not impartial. He also claimed that the trial court had committed numerous breaches of criminal procedure. 10.     By a decision of 24 October 2007 the District Court suspended the applicant’s right to practice as a legal counsel. On 19 December 2007 the Poznan Regional Court, composed of Judges BZ, GN and seconded Judge ZP, upheld the first-instance decision. In the reasons for this decision the Regional Court stated, inter alia , that “[the applicant] in committing the offences used his knowledge of a lawyer and legal counsel, abused trust   ...”). 11.     On 26 February 2008 the applicant requested the Regional Court that judges BZ and GN be disqualified from hearing his appeal against the first ‑ instance judgment on account of their bias expressed, inter alia , in the reasons for the decision of 19 December 2007. The request was dismissed on 7   March 2008. 12.     On 27 February 2008 the applicant requested that Judges BZ and GN be excluded from hearing his appeal. He argued that Judge BZ had ruled earlier on the prolongation of his detention on remand. He also alleged that in the decision of 19 December 2007 Judges BZ and GN had made statements which demonstrated that they had been already convinced of his guilt. The Regional Court dismissed the applicant’s request on 7   March 2008. It found that the judge who had decided on the applicant’s detention on remand was not excluded from examining the merits of his case or appeal. 13.     On 17 April 2008 the applicant filed a request for disqualification of all judges of the Poznań Regional Court from hearing his appeal. He argued that the judges would not be impartial since the same court (civil section) was concurrently examining the applicant’s claim for compensation against the President of the Poznań Regional Court. The latter claim was related to the judgment Zborowski v. Poland (no. 2) in which the Court found a breach of Article   8 of the Convention on account of the monitoring of the applicant’s correspondence which had been carried out by a clerk of the Szamotuły District Court. On an unspecified date the Regional Court dismissed the applicant’s request. 14.     On 12 February 2009 the Poznań Regional Court, composed of Judges BZ, GN and seconded Judge JO, essentially upheld the Szamotuły District Court’s judgment of 26 June 2007. It dismissed the argument concerning the lack of independence of the assessor, relying on the Constitutional Court’s judgment of 24   October 2007. It also examined and dismissed as unfounded other arguments raised by the applicant in his appeal. 15.     The applicant filed a cassation appeal. He alleged, inter alia , that Judges BZ and GN should have been disqualified from hearing the appeal since in earlier ancillary proceedings they had expressed their belief of the applicant’s guilt (decision of 19 December 2007). The applicant further alleged that Judge BZ should have been disqualified as she had previously ruled on the prolongation of his detention on remand. The applicant argued that in his case Zborowski v. Poland the Court found that the decisions on the prolongation of his detention, including those given by judge BZ, had been flawed and on this ground judge BZ lacked objectivity in the examination of the applicant’s appeal. The applicant also alleged the appellate court had wrongly dismissed his request for disqualification of the judges hearing his appeal since they had lacked impartiality on account of the civil proceedings instituted by the applicant against the President of the Regional Court. 16.     On 14 January 2010 the Supreme Court quashed the Regional Court’s judgment and remitted the case for re-examination. It held that the Regional Court had manifestly erred in dismissing the applicant’s request for disqualification of Judges BZ and GN. The Supreme Court found that the use of two statements in the reasons for the decision of 19   December 2007 (in particular, that “[the applicant] in committing the offences used his knowledge of a lawyer and legal counsel, abused trust ...”) had undermined the objective impartiality of these two judges. The remainder of the cassation appeal was dismissed. 17.     The Supreme rejected the applicant’s argument about the lack of impartiality of Judge BZ based on her earlier involvement in decisions prolonging the applicant’s detention on remand. It held that neither the Court’s judgment Zborowski v. Poland nor the European Convention on Human Rights required that judges who had previously ruled on detention on remand in respect of the accused should have been excluded from the examination of the merits of the case against the accused simply because the Court had found a breach of Article 5 § 3 of the Convention. There was no basis for such a requirement in Article 46 of the Convention or in the Code of Criminal Procedure. Furthermore, there were no statements in decisions on prolongation of the applicant’s detention given by Judge BZ which could be indicative of her lack of impartiality. 18.     The Supreme Court rejected the applicant’s allegation about the lack of impartiality of the judges of the appellate court on account of the civil proceedings instituted by the applicant before the Regional Court. In the civil proceedings the President of the Regional Court (the defendant) simply represented the State Treasury as the case concerned actions of a clerk of the Szamotuły District Court for whom he was administratively responsible. The case did not concern directly the President of the Regional Court and the applicant’s misgivings about the impartiality of the judges of the Regional Court were unfounded. 19.     On the same day the Supreme Court ordered that the applicant should be released without undue delay. The applicant was released on 18   January 2010. 20.     On 8 April 2010 the applicant requested that Judge JA be disqualified from the panel of three judges of the Poznan Regional Court who were to examine his appeal. On 20 April 2010 the Regional Court dismissed his request. It found that the judge who had ruled on the applicant’s detention on remand was not disqualified from hearing his appeal provided that the judge had not prejudged the question of the applicant’s guilt in earlier decisions. 21.     On 9 March 2011 the Poznan Regional Court gave judgment. It essentially upheld the Szamotuły District Court’s judgment of 26   June 2007. The participation of the assessor in the examination of the applicant’s case was deemed lawful. The Regional Court held that the rights of the defence had been fully respected at the trial and that the applicant had been able to comment on all relevant evidence. It further held that there had been no procedural shortcomings in the investigation which affected the fairness of the trial. With regard to the censorship of his correspondence, the appellate court considered that it had no impact on the fairness of the trial and, in addition, the failings in this respect had been examined by the authorities and the applicant received an apology. The composition of the trial court (1   assessor judge and 2 lay judges), contested by the applicant, was in compliance with the applicable procedural rules. 22.     The applicant lodged a cassation appeal. He alleged, among others, that the President of the 4 th Criminal Division of the Poznan Regional Court had assigned a panel of 3 judges to his case without respecting the alphabetical order of the list of judges in the division and thus in breach of Article 351 § 1 of the Code of Criminal Procedure (“CCP”). Such decision was arbitrary and undermined the impartiality of the panel. Furthermore, the President of the 4 th Criminal Division, who herself was excluded from hearing the case, did not specify the reasons justifying the departure from the rule of assigning judges in accordance with the alphabetical order of the list. 23.     The applicant further claimed that the proceedings against him had been unfair. The unfairness resulted, inter alia , from breaches of the rights of the defence, control of his correspondence with his counsel and the use at trial of unlawfully obtained evidence. 24.     The applicant also complained that Judge JA should have been excluded from the panel of the Regional Court for her lack of impartiality. He argued that the same judge had ruled on the prolongation of his detention on remand in 2001 and that she should have been excluded on account of the Court’s judgment in the case Zborowski v. Poland . The applicant also complained about the presence of the assessor in the composition of the trial court. The applicant further alleged that the Regional Court had extensively interpreted Article 286 § 1 of the Criminal Code (“CC”) and held him to be guilty of fraud despite the fact that decisions on acquisition of inheritance did not transfer the title to a property. 25.     On 17 May 2012 the Supreme Court gave judgment. It quashed the Regional Court’s judgment in respect of the conviction for one count of fraud. It remitted the case in this part. The quashing was related to the amendment of the Criminal Code which entered into effect during the proceedings before the Regional Court and resulted in the change of legal classification of this count of fraud into more lenient one. The reminder of the cassation appeal was dismissed. 26.     With regard to the complaints concerning the assignment of judges, the Supreme Court held that the President of the 4 th Criminal Division had been excluded from hearing the applicant’s case but not from taking organisational measures unrelated to the determination of the case. On the basis of the case file and the statement of 30 August 2010 submitted by the President of the 4 th Criminal Division, the Supreme Court established that in assigning judges to the applicant’s case she had not complied with the conditions stipulated in Article 351 § 1 of the CCP and that the list of judges had not contained all judges of the division. Furthermore, the list of judges was not enclosed to the case file and in the decision assigning judges to the applicant’s case the fact of departing from the rule of assigning judges in accordance with the alphabetical order of the list had not been mentioned. However, the Supreme Court held that the above shortcomings could not lead to the quashing of the lower court’s judgment because the applicant did not demonstrate that they had significant impact on the content of the judgment. It noted that Article 351 § 1 of the CCP was one of the elements fostering the guarantees of impartiality of a judge and that in the circumstances of the case there were no circumstances calling into question the impartiality of the judges who had decided the applicant’s case. 27.     The Supreme Court found that the analysis of the case file left no doubts that the manner of assigning judges to the applicant’s case had been solely determined by the specific circumstances of the case which were considered as important ground justifying the departure from the rule stipulated in Article 351 § 1 of the CCP. These specific circumstances were related to the reasons for the quashing of the earlier judgment of the Regional Court in the cassation appeal proceedings and the reasons justifying disqualification of a significant number of judges of the division from hearing the applicant’s case. The Supreme Court did not consider inappropriate that before assigning judges to the applicant’s case the President of the 4 th Criminal Division had compiled a list of judges in the Division and put “+” or “-“ by their name having regard to whether there existed grounds for their disqualification from the case. It was true that the list was not enclosed to the case file; however, the applicant learnt about it and challenged it in his cassation appeal. The Supreme Court further noted that those judges of the division who worked on part-time basis and had administrative duties were not included on the list compiled by the President of the 4 th Division. However, it was accepted in the case-law and by academic writers that such circumstances could justify the departure from the standard rule concerning the assignment of judges. 28.     With regard to the lack of impartiality of Judge JA, the Supreme Court found the applicant’s arguments unfounded and referred to the findings of the earlier judgment of the Supreme Court. The fact that Judge JA had participated in giving a decision on the prolongation of the applicant’s detention on remand did not justify her disqualification from the case. That was even more so since the reasons for the decision given by Judge JA did not contain any statements confirming the applicant’s guilt. With regard to the arguments concerning the assessor, the Supreme Court dismissed them with reference to the Constitutional Court’s judgment and the judgment of the Court in the case of Henryk Urban and Ryszard Urban v.   Poland of 30 November 2010. 29.     The Supreme Court rejected the applicant’s argument about the extensive interpretation of Article 286 § 1 of the CC. It held that that this provision used the term “disadvantageous disposition of property” which should be interpreted as all actions leading to deterioration of property status of a victim and could not be reduced to transfer of property rights alone. From this point of view, it was irrelevant for the applicant’s criminal responsibility that a decision on acquisition of inheritance was of a declaratory nature. The remainder of the applicant’s arguments were examined and dismissed as unfounded. 30.     On 19 December 2012 the Poznan Regional Court gave judgment. It slightly amended the conviction in respect of one count of fraud. In respect of the cumulative penalty the applicant was sentenced to 7 years and 9   months’ imprisonment and a fine of PLN 40,000. 31.     The applicant lodged a cassation appeal. On 10 December 2013 the Supreme Court dismissed his cassation appeal as manifestly ill ‑ founded. COMPLAINTS A.     Complaints raised in the application no.   46307/09   32.     The applicant complains under Article 5 § 5 of the Convention that he did not have an enforceable right to compensation in domestic law despite the Court’s judgment in his case finding a violation of Article 5 §   3 of the Convention ( Zborowski v. Poland, no. 13532/03 of 31   October 2006 ). He submits that Article 552 of the CCP limited the right to compensation to essentially cases of acquittal and discontinuation of criminal proceedings. The applicant also refers to a seven-judge Resolution of the Supreme Court of 20 September 2007 no. I KZP 28/07 which held that crediting a period of pre-trial detention towards another penalty imposed on the same person excluded the possibility of bringing a claim for compensation under Article   552 of the CCP in respect of the same period of pre-trial detention. He did not institute proceedings under Article 552 of the CCP or Article   417¹ § 3 of the Civil Code because their outcome would have been futile in the light of the above Supreme Court’s Resolution. 33.     The applicant complains under Article 6 § 1 of the Convention that the Szamotuly District Court’s judgment of 26 June 2007 was given by the assessor RO who was not independent.   B.     Complaint raised in the application no. 72932/12   34.     The applicant complains under Articles 6 § 1 and 46 of the Convention that the assessor RO, who was not independent, was in the composition of the Szamotuly District Court. Her lack of independence was demonstrated by the fact that 37% of the content of the second judgment of Szamotuly District Court was reproduced from the first trial court’s judgment. Furthermore, she conducted the trial in an incompetent manner and refused requests for evidence submitted by the applicant. The applicant also complains that the Regional Court and the Supreme Court did not quash the trial court’s judgment on the ground that it was given by the assessor despite the Court’s judgments which held that the adjudication by assessors was in breach of Article 6 § 1 of the Convention. The latter situation amounted to a breach of Article 46 of the Convention. 35.     The applicant complains under Article 5 § 4 of the Convention about the delay in his release from the Poznan Prison. The Supreme Court ordered his release on 14 January 2010 and he was released only on 18   January 2010. He relies on Gębura v. Poland , no. 63131/00, 6 March 2007 and Mamełka v.     Poland , no.   16761/07, 17   April 2012.     QUESTIONS TO THE PARTIES 1.     Was the Szamotuły District Court which examined the applicant’s case and gave judgment on 26 June 2007 independent, as required by Article 6 § 1 of the Convention, having regard to the fact that it was composed, inter alia , of the assessor RO? Reference is made to Henryk Urban and Ryszard Urban v. Poland , no. 23614/08 , 30   November 2010.   2.     Was the applicant deprived of his liberty between 14 January 2010 and 18 January 2010 in breach of Article 5 § 1 of the Convention?   3.     Did the applicant have an effective and enforceable right to compensation as required by Article 5 § 5 of the Convention for his detention on remand between 18 January 2001 and 23 April 2004 which was found to be in contravention of Article 5 § 3 by the Court in Zborowski v.   Poland , no. 13532/03, 31 October 2006?   4.     Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention in respect of his complaint under Article 5 § 5 of the Convention? In particular, was a claim under Article   417 § 1 of the Civil Code an effective remedy within the meaning of this provision?