TROJANOWSKI AND ROGOSZ v. POLAND
Inadmissible
Nicolas Bratza
The applicants are Polish citizens, born in 1967 and 1959 respectively and living in Gliwice, Poland. s, may be summarised as follows. In 1993, on the basis of a licence issued by the Ministry of Internal Affairs, the applicants founded a company specialising in the protection of property. On 31 March 1994 the Katowice District Court convicted the applicants of one count of misappropriation and sentenced them to one year’s imprisonment and a fine of 20.000.000 (old) Polish zlotys, with two hundred days of imprisonment in default, and conditionally stayed enforcement of this sentence for a period of one year. The court further discontinued criminal proceedings concerning a charge of attempted misappropriation. Finally, the court imposed on the applicants an order prohibiting them from running, for a period of one year, the property protection business. The court found that the applicants had first assisted the K. brothers in assigning to a certain J.C. the brothers’ claim against T.Z., which allegedly arose out of a civil law contract but one which had not been certified by any judicial decision. Subsequently, they had obtained from J.C. an authorisation to secure realisation of this claim against T.Z. On 22 March 1993 they went to a warehouse located in S., owned by T.Z., and stated that they wished to purchase a substantial amount of merchandise. After they had chosen the merchandise, the seller asked them what form of payment they propose. When she was informed that they did not propose to pay because their intention was to set off the claim which J.C. had acquired against T.Z. against the price due for the merchandise, the seller called the police. After the police arrived and told the applicants that they should have recourse to civil proceedings, they left the warehouse. They subsequently went to two other shops owned by T.Z., located in K., where they declared their intention to buy certain merchandise and, after it had been loaded on their van, they again refused to pay for it, stating that the payment due would be set off against the claim J.C. had against T.Z. The court noted that there had been no dispute as to the facts. The accused had not called in question the facts as established on the basis of testimony given by the witnesses, but they had disagreed with the legal assessment of the facts by the prosecuting authorities. They had stressed that their actions fell within the scope of a civil law contract of assignment of claims and the setting off of claims. The court considered that the accused had failed to take note of Article 58 of the Civil Code which provided for a legal act to be null and void if effected in order to circumvent the law, or if it was contrary to the law, or contrary to good faith. The court considered that, although the applicants were conversant with civil law, their actions could not be construed as the mutual setting off of contractual claims. Their intention had been to conclude a contract of purchase and to refuse payment, invoking the assignment of claims to J.C.. The court considered that their acts amounted to an offence of misappropriation punishable under Article 204 of the Criminal Code. The court further held that the applicants had abandoned, of their own will, their intention to proceed with the purchase of merchandise in S. and thus considered that the part of the criminal proceeding relating to this incident should be discontinued. The applicants appealed. They alleged that their defence rights had been breached in that the legal qualification of the charges against them had been changed after the court had closed the trial. They complained that after the trial had been closed, T. R. had not been given a possibility to address the court, that the court had made it impossible for them to lodge an appeal and that the proceedings had lasted too long. They also complained that B.Z., the wife of T.Z., had been questioned only on the last day of the trial and that the court had wrongly applied substantive law by considering that their acts could have amounted to offences punishable under criminal law, whereas they had only resorted to a well-established civil law contract of assignment of claims which could be effected regardless of the creditor’s lack of knowledge and of his approval thereof. The Prosecutor likewise lodged an appeal, claiming that the District Court had wrongly applied substantive criminal law in that it had assessed the applicant’s offence as misappropriation, whereas it should have been qualified as fraud. He further argued that the part of the proceedings relating to the applicants’ acts committed in S. should not have been discontinued because, in fact, the applicants had not abandoned their intention of their own will, but only after the seller had called the police. On 8 July 1994 the Katowice Regional Court quashed the judgment under appeal and ordered that the case be reconsidered by the lower court. The court first examined the complaints submitted by the applicants to the effect that the procedural law had been breached in the proceedings. The court considered that the lower court had in fact informed the applicants about the possibility of reassessing the offences with which they had been charged before the trial had been closed. The court further found that after the trial had been closed, the accused, including T.R., had had an opportunity to address the court orally. The court considered the complaint about the impossibility of appeal to be incomprehensible because they had in fact lodged an appeal. The fact that B.Z. had been questioned on the last day of the trial did not amount to an irregularity, as the lower court had been under no obligation to question witnesses in any given order. As to the legal argument on mutual setting off allowed under civil law, the court noted that the only document purporting to be evidence of the existence of the claims of the K. brothers against T.Z. merely showed that the latter had had certain obligations towards the A. company, of which the brothers had been shareholders, whereas the assignment of claims had purportedly been concluded between the K. brothers and J.C. The court concluded that there had been no credible evidence to prove the existence of T.Z.’s original contractual obligation towards the K. brothers. The court observed that the applicants had requested J.C. to allow their company to secure the payment of claims arising out of various contractual obligations for a commission of five per cent. Subsequently J.C. had signed a blank claim assignment form which was subsequently to be used by the applicants’ company. The court considered that such an assignment, in the absence of any details establishing the claims on which the applicants could seek payment, could not be regarded as valid under the applicable provisions of civil law. The court noted that the civil law allowing for the setting off of claims is only applicable when the persons concerned were mutual debtors and creditors in relation to each other. The court considered that the legal assessment of the offences at issue by the first instance court had been wrong in that they had been qualified as misappropriation. However, this offence requires that the perpetrator had the objects concerned in his or her possession and then refused to return them to their rightful owner. As this had not been the case, the legal assessment of the offences had to be amended. Accordingly the court quashed the judgment of the lower court. On 20 February 1995 the Katowice District Court convicted the applicants of two charges qualified as a continuous offence of fraud, sentenced them to eighteen months’ imprisonment and a fine with imprisonment in default, and conditionally stayed enforcement of the sentence for a period of two years. The court reiterated that, as the applicants had not called into question the facts of the case, the essence of the matter lay in the legal assessment of their acts. The court considered that during the material events the applicants had pretended that they wanted to purchase merchandise and that by doing so they had misled the sellers. However, their genuine intention was, first, to enter into possession of the merchandise and, after this had been attained, to refuse payment and to declare that they intended to set off the price due against the claims against T.Z. which had purportedly been assigned to J.C. The court considered that in the light of the evidence given by the sellers, they would not have concluded such a contract with the applicants had they been informed of their real intentions. Thus the court considered that the setting off of the claims had been null and void and that the applicants’ acts met the statutory requirements of the offence of fraud, as set out in Article 205 of the Criminal Code applicable at the material time. The applicants lodged an appeal, complaining that the judgment was in breach of substantive law, in that the court had accepted that their acts amounted to a criminal offence punishable under Article 205 of the Criminal Code, whereas in fact they had acted in conformity with the law. The applicants did not reiterate the complaint they had raised in their appeal against the judgment of 31 March 1994 that the legal qualification of the charges against them had been changed after the first-instance court had closed the trial. On 23 May 1995 the Katowice Regional Court amended the first instance judgment of 20 February 1995, reducing the sentence to a fine of 1.000 new PZL, with one hundred days’ imprisonment in default, whilst upholding the remainder. The court first noted that the applicants did not call into question the findings of fact made by the lower court. The court noted that T.Z. had never been asked by the A. company to pay his alleged debt. Thus, the claim could not be considered as due. The court considered that, for contractual claims to be validly set off against each other, the law required that the claims should not only be undisputed but also due, which conditions did not obtain in the present case. Moreover, the applicants, when purchasing merchandise owned by T.Z., had acted with a fraudulent intent, because their real intention was to take possession of the merchandise and then to refuse payment. Thus, the applicants’ argument that they had validly concluded a purchase contract with T.Z. and subsequently set off J.C.’s assigned claim could not be accepted. Given the invalid purchase contract, there were no legal grounds on which the claims could be lawfully set off against each other.