SLIWA v. POLAND
Inadmissible
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
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. 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 firstinstance 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perpetrator of the same offence, the judge who had examined the evidence against the convicted perpetrator should be withdrawn from examining the cases against the remaining perpetrators (see “Relevant domestic law and practice” below). 7.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 secondinstance 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Supreme Court’s resolution of 26 April 2007 submitted that the judges who had convicted the applicant should have been withdrawn from the proceedings.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 furtheredings (“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. 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.”