SZOTT-MEDYNSKA AND OTHERS v. POLAND
Inadmissible
Georg Ress;Mark Villiger
The first applicant, Ms Dorota Szott-Medyńska, is a Polish national, born in 1954. She runs a family business together with the second and third applicants, Mr Maciej Medyński and Mr Krzysztof Medyński. They reside in Skierniewice. They are represented before the Court by Ms Mirosława Sztandera, a lawyer practising in Łódź. The respondent Government are represented by Mr K. Drzewicki, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants run a small family business. By decisions of 17 December 1997 the Treasury Office found all three applicants guilty of a fiscal offence punishable under Article 98 of the Fiscal Criminal Act in that they had failed to pay a monthly income-tax advance on wages for their employees for April 1997, in the amount of 284,90 Polish zlotys (“PLN”). The Treasury Office imposed on each of the applicants a pecuniary penalty of PLN 250, to be substituted by seventeen days of imprisonment in case of default of payment. The penalty was imposed under Article 41 of the same Act, stipulating sanctions for fiscal offences (cf. distinction between “fiscal crimes” and “fiscal offences” in the “Relevant domestic law” below). The applicants lodged an appeal against this decision with the Treasury Chamber, arguing that the first-instance authority had wrongly instituted the fiscal proceedings against them as no criminal offence had been committed and that, in any event, the legal classification of the offence should be changed to a more lenient one. They submitted that as soon as they had noticed their error they had informed the Treasury Office and, on 20 June 1997, had paid the income tax in arrears with the statutory interest due. Therefore, the State had not sustained any loss. In their submissions, their conviction was a result of an overly formalistic, impractical and unreasonable approach of the tax authorities to the business activities and the tax obligations resulting therefrom. On 16 March 1998 the Skierniewice Treasury Chamber dismissed their appeals and upheld the contested decisions. No further appeal lay in law against this decision. The 1971 Fiscal Criminal Act (Ustawa Karna Skarbowa), applicable at the material time, distinguished between two types of wrongful acts in the area of fiscal law: “fiscal crimes” and “fiscal offences”; fiscal offences being a category of less serious acts. Article 1 of the Fiscal Criminal Act defined fiscal crimes as wrongful acts punishable by imprisonment, limitation of liberty or a fine between PLN 200 and PLN 5,000,000. By virtue of Article 13, additional sanctions could be imposed for fiscal crimes such as: deprivation of civil rights, prohibition to exercise certain activities, confiscation of an object, and publication of the court judgment by which the offender was convicted. Articles 35 and 41 of the Fiscal Criminal Act defined fiscal offences as wrongful acts punishable by a “pecuniary penalty” (as distinguished in terminology from “fine”) between PLN 20 to PLN 1,000. Under Article 43, the additional sanction of confiscation of an object could also be imposed for a fiscal offence where the Act expressly provided therefor. Under Article 36 of the Act, certain provisions of the Criminal Code of 1969, defining general notions of criminal responsibility, were applicable in proceedings concerning fiscal offences. The provisions in question concerned, inter alia, the definition of a punishable act, the prohibition of retroactivity, the definition of intentional and non-intentional offence, the age limit for liability, notions of attempted offence and aiding and abetting, the circumstances justifying exclusion of criminal liability, and the principles applicable to the determination of criminal sanctions. As provided by Article 42 of the Act, when pecuniary penalty exceeding PLN 50 is imposed, it may be substituted by up to 30 days' imprisonment in default of payment. Pursuant to Article 122, the courts were competent to examine cases concerning fiscal crimes punishable by imprisonment or limitation of liberty. Under Article 123 of the Act, cases concerning fiscal crimes in which only fines could be imposed, and cases concerning fiscal offences, were examined by fiscal administrative boards. Article 206 of the Act stated that decisions given in proceedings concerning fiscal crimes and offences could be appealed against if the law so provided. The remedies were the following: an appeal, a request that the case be examined by a court, and an appeal against interlocutory decisions. Under Article 208 § 1 of the Act, in cases concerning fiscal crimes, a party to the proceedings could choose between an appeal to a higher administrative authority or a request that the case be examined by a court. An option to use one remedy barred the use of the other. In proceedings concerning fiscal offences, however, only an appeal to a higher administrative authority could be lodged. On 3 July 1998 a legislative amendment to the Fiscal Criminal Act was adopted to the effect that the demand that the case be examined by the court became available also with respect to fiscal offences. It entered into force on 1 September 1998. Subsequently, with effect as of 17 October 1999, the new Fiscal Criminal Code replaced the 1971 Fiscal Criminal Act. According to the new law, the courts are competent to examine all cases concerning fiscal crimes and fiscal offences. On 17 October 1997, the new Constitution entered into force in Poland. Article 79 § 1 of the Constitution provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” At the material time, the complaint had to be lodged within 2 months from the date on which the individual decision was served (Article 46 § 1 of the Constitutional Court's Act). This time-limit was extended to 3 months with effect as of 8 October 2000. Article 190 of the Constitution, insofar as relevant provides as follows: “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court, ... shall be published without delay. 3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. Where a judgment has financial consequences not provided for in the Budget, the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned, after seeking the opinion of the Council of Ministers. 4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a legally effective judgment of a court, a final administrative decision or settlement of other matters was issued, shall be a basis for re-opening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings.” Article 227 of the Fiscal Criminal Act, as amended by the Constitutional Court Act, provides, insofar as relevant, as follows: “The Minister of Finance, in the exercise of his supervisory powers, shall, ex officio or upon request, amend or quash a final decision ... rendered on the basis of the legal provision which was found by the Constitutional Court to be in contravention of the Constitution, international agreement or statute ....” Article 39 § 1 of the Constitutional Court Act, provides, insofar as relevant: “The Constitutional Court should discontinue the proceedings ... when: [...] 3. normative act challenged ... lost its binding force before the judgment of the Constitutional Court was delivered.” With effect as of 8 October 2000, an amendment was introduced which allows the Constitutional Court to continue the proceedings if it considers it necessary for the protection of constitutional rights and freedoms. Article 239 § 1 of the Constitution provides: “Within 2 years of the day on which the Constitution comes into force a judgment of the Constitutional Court of the non-conformity with the Constitution of statutes adopted before its coming into force shall not be final and shall be required to be considered by the Sejm which may reject the judgment of the Constitutional Court by a two-third majority vote in the presence of at least half of the statutory number of Deputies. The foregoing provision shall not concern judgments delivered by the Constitutional Court upon requests for preliminary rulings.” It was controversial among legal writers in Poland whether the Sejm was also empowered to reject judgments delivered upon individual complaints as this category was not expressly excluded from the scope of this provision. The issue had not arisen in practice as the Sejm has never rejected Constitutional Court's judgments on individual complaints and the transitional period of 2 years, referred to in the above provision, expired on 17 October 1999.