5.  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.
6.  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.
7.  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.
8.  Criminal proceedings were instituted following a complaint lodged by J.T., a German national, at the Polish Consulate in Cologne.
9.  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.
10.  On 19 January 1998 the prosecutor filed an updated bill of indictment with the Warsaw Regional Court.
11.  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.
12.  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.
13.  There were five other accused in the case.
14.  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.
15.  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.
16.  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.
17.  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.
18.  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”.
19.  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.
20.  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”.
21.  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.
22.  On 8 February 2005 the trial court finished hearing evidence in the case.
23.  On 29 March 2005 the Warsaw Regional Court delivered its judgment. Judge A.K. presented the main reasons for the verdict orally.
24.  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.
25.  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.
26.  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.
27.  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.
28.  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.
29.  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.
30.  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”.
31.  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...”.
32.  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”.
33.  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).
34.  It appears from the case file that the second applicant moved to the United States of America on an unspecified date.
35.  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.
36.  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.
37.  The applicants also alleged that the trial court had violated the rules of criminal procedure and the rights of the defence in various respects.
38.  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.
39.  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.”
40.  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.”
41.  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.
42.  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.
43.  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.
44.  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.
45.  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.
46.  The Warsaw Court of Appeal delivered its judgment on 25 January 2006.
47.  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.
48.  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.
49.  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.
50.  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).
51.  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.
52.  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.
53.  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.
54.  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.
55.  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.
56.  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.
57.  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.
58.  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.
59.  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.”
60.  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.
61.  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.
62.  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.
63.  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.
64.  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 circumstances of the case.
65.  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.
66.  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.
67.  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.
68.  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.
69.  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.
70.  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.
71.  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.
72.  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.
73.  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.
74.  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.
75.  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.
76.  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.
77.  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.
78.  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.
79.  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).
80.  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.
81.  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.
82.  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”).
83.  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.
84.  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.
85.  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.
86.  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.
87.  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.
88.  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).
89.  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.
90.  On 1 June 2009 the Court of Appeal gave judgment.
91.  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.
92.  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 above‑mentioned 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.
93.  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.
94.  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.
95.  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?”
96.  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 ...”
97.  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:
98.  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.