CASE OF RYWIN v. POLAND
Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)
Aleš Pejchal;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney
7. The applicant was born in 1945 and lives in Konstancin Jeziorna. 8. On 27 December 2002 the Gazeta Wyborcza – a major daily newspaper – published an article with the headline: “A law in exchange for a bribe: when Rywin pops by to see Michnik” (Ustawa za łapówke, czyli przychodzi Rywin do Michnika). The article was about bribery in connection with the legislative procedure for the amendment of the Broadcasting Act. According to the article, in July 2002 Lew Rywin (the applicant), a well-known film producer, had offered a bribe to representatives of the company that published the Gazeta Wyborcza newspaper, Agora S.A. The applicant was said to have been acting on the instructions of a purported “group in power” (grupa trzymająca władze), which allegedly included certain high-ranking State officials, among them the Prime Minister. More specifically, the applicant had reportedly offered the representatives of Agora his assistance in amending the Broadcasting Act so that the company could buy the private television channel Polsat, and had asked for the following, among other things, in return: payment of 17.5 million United States dollars (USD), his appointment as chairman of the channel Polsat and an undertaking from the newspaper Gazeta Wyborcza to refrain from publishing any criticism of the government. The above-mentioned proposal was said to have been made by the applicant during a meeting with Adam Michnik, editor-in-chief of Gazeta Wyborcza. The meeting had been recorded by the latter and transcriptions from the recording were later included in the article published by his newspaper. A. The criminal proceedings against the applicant, the work of the Parliamentary commission of inquiry and the media coverage 9. After the case was revealed in the press, the public prosecutor at the Warsaw Court of Appeal brought proceedings against the applicant, on 31 December 2002, on a charge of influence peddling (przestępstwo płatnej protekcji), under Article 230 of the Criminal Code. 10. On 10 January 2003, the Sejm – lower house of Parliament – passed a resolution (uchwała) setting up a parliamentary commission of inquiry (“the commission”). Under that resolution the commission was set up with the following aims: “(1) To investigate the circumstances surrounding the attempted extortion by Lew Rywin of material and political gains in exchange for his assistance in preventing an amendment of the Broadcasting Act that would be unfavourable to private media and in guaranteeing that the Broadcasting Media Council would decide in favour of such media; and to determine the identity of any persons that may have taken steps to this effect, as revealed by the Gazeta Wyborcza newspaper and other media. (2) To examine, in the light of the circumstances mentioned in paragraph 1 above, the parliamentary procedure for the amendment of the Broadcasting Act. (3) To examine whether the authorities’ response to the media revelations concerning the affair mentioned under point 1 above was regular.” The resolution stated that the commission’s meetings would be held in public, unless otherwise provided by law or by the Sejm’s rules of procedure. 11. On 14 January 2003, the commission, consisting of ten MPs, began its work. 12. On the same day the public prosecutor questioned the applicant and notified him of the charge against him. The applicant was obliged to present security in the form of a registered charge against his property and his passport was seized. 13. On 23 February 2003 issue number 8 of the weekly magazine Wprost was published with, on the cover, a photomontage showing the applicant with his head emerging from a toilet bowl while three hands of unknown persons were pressing the flush button. The photomontage was accompanied by the following caption: “How many men in power will Rywin bring down with him?” (Ilu ludzi wladzy pociagnie za soba Rywin ?). Inside the same issue of Wprost was an article headed “Rywinotherapy” (Rywinoterapia), on the subject of corruption in Poland. 14. Following that publication the applicant brought proceedings against Wprost for the protection of his reputation, complaining about a breach of his right to be presumed innocent. On 25 June 2003 Warsaw Regional Court dismissed the applicant’s claim, finding in particular as follows: “Until the final conviction has been handed down, the complainant must be treated as a person presumed innocent. It is nevertheless true that he had been charged with specific offences, that a bill of indictment had been preferred against him, and that the matter is being examined by a parliamentary commission of inquiry. It must be emphasised that the general public have been informed about the “group in power” [sic]. In that situation, the journalists had not only the right but also a duty, under the Press Act, to ask questions about any figures in power who may be implicated in this affair ... In the lower court’s opinion, the complainant’s picture was widely known to the public in the context of the ‘Rywin affair’ even before the article was published. The image of Lew Rywin had appeared on a number of occasions in the media in connection with this matter. The complainant was interviewed by the parliamentary commission of inquiry in the course of hearings that were broadcast on television. Having regard to this context, the publication by the weekly Wprost of the applicant’s picture did not harm his reputation. ... What is important in the present case is the fact that the cover does not contain any material that may prejudge the complainant’s guilt in [what is known as] the ‘Rywin’ affair. According to the court below, the cover may be seen by readers as a [mere] indication that the complainant was involved in the case. His implication in this affair, of which the public were well-informed before the impugned publication, is therefore not attributable to the latter. ... The seriousness of the bribery justified, in the present instance, the use of scathing expressions and very expressive symbols. ... Bribery is so harmful and blameworthy that the fact of representing it using a toilet bowl as a symbol is no exaggeration ... The picture where the complainant’s head is seen emerging from the toilet bowl – a symbol of corruption – only means that he may be implicated in the affair and that its elucidation may lead to establishing the identities of others involved ...” 15. In the meantime, the criminal investigation and the work of the commission were ongoing. The commission sat throughout 2003 and until 5 April 2004, when its last session was convened. The sessions held by the commission between 8 February and 21 November 2003 were devoted to the hearing of witnesses, such as the executives of Agora, high-ranking government officials starting with the Prime Minister, journalists, members of the Warsaw public prosecutor’s office and businessmen representing the media. The applicant, who appeared before the commission on 22 February 2003, refused to answer any of its questions. The commission’s hearings were public and broadcast live on radio and television. Only two of the witness hearings were apparently held in private. The transcripts of the commission’s hearings, consisting of more than 8,000 typed pages, were systematically published on the Parliament’s website. 16. The commission’s work was widely reported in the media, including comments by its members. 17. Pursuant to the Parliamentary Commissions of Inquiry Act (see paragraph 83 below), the commission worked in close cooperation with the Warsaw public prosecutor conducting the criminal investigation in respect of the applicant. Thus in February 2003 the president of the commission asked the public prosecutor’s office to conduct certain investigative acts, and in particular: to obtain the transcripts of the applicant’s telephone conversations; to determine the places where his documents were kept; to seize the hard drives from his computer; and to carry out a search of his private and professional premises. On 6 February 2003 the public prosecutor conducting the investigation authorised the commission to disclose, in the context of the proceedings before it, the material in the criminal investigation file. On 6 March 2003 the national public prosecutor (Prokurator Krajowy) dismissed the applicant’s appeal against this measure, observing that the disclosure of such material was authorised provided it was not prejudicial to the outcome of the case. On 24 March 2003 the commission forwarded to the public prosecutor, at his request, the transcripts and recordings of its hearings, including the witness hearings. 18. Information was exchanged between the commission and the public prosecutor on several occasions. In that connection, members of the commission’s presidium had meetings with the national public prosecutor and the public prosecutor leading the investigation. 19. In June 2003 the criminal investigation in respect of the applicant was completed and the indictment, together with a case file of eighteen volumes, was presented to Warsaw District Court. Mr Rywin was indicted for attempted influence peddling, an offence under Article 230 of the Criminal Code combined with Article 12 of the same Code. 20. On 8 August 2003 the Warsaw Court of Appeal ordered the case to be sent to Warsaw Regional Court on the ground of its exceptional nature and its importance (sprawa szczególnej wagi), having regard to the positions held by the individuals implicated in the case, the media and public interest and the work of the commission. 21. On 6 October 2003 Warsaw Regional Court declared that the public prosecutor’s decision of 6 February 2003 (see paragraph 17 above) applied to the judicial phase of the criminal proceedings. Noting that the commission had been privy to the whole of the investigation case file concerning the applicant, the court pointed out that if the material in the file were used in the proceedings before the commission it would have to be careful not to cause any prejudice to the persons concerned by that investigation, such as the witnesses and the applicant. 22. On 20 October 2003 the case was assigned to a bench of three professional judges. 23. On 2 December 2003, when the trial opened, Warsaw Regional Court authorised the broadcasting of the hearings live on radio and television, emphasising that journalists should not impede the smooth running of the proceedings and should abide by the rule that testifying witnesses were not to be apprised of the statements of the other witnesses. The court also authorised the media disclosure of the applicant’s identity and picture, observing that the public interest in following the proceedings prevailed over any contrary interest of the persons on trial. 24. Warsaw Regional Court heard testimony from a number of witnesses, including those who had already been interviewed by the commission. During these hearings, the court systematically compared the statements before it with those that the same witnesses had given to the commission. 25. The Regional Court and the commission exchanged, on a number of occasions, information they had gathered in their respective proceedings. 26. On 31 March 2004, after the closing of the witness hearings, the court made public all the evidence, including that which it had received from the commission. The court informed the parties that there might be a change in the legal classification of the charges against the applicant, which might fall under Article 13 § 1 combined with Article 286 § 1 of the Criminal Code, corresponding to the offence of attempted fraud (usiłowanie doprowadzenia do niekorzystnego rozporzadzenia mieniem). In response to a request by the defence for the adjournment of the proceedings for a maximum of one week, the court postponed the trial until 14 April 2004, fixing 16 April 2014 as the date of the last round of oral argument. 27. On 14 April 2004 the court rejected a defence request for the admission of new evidence. In response to a request by the defence, the court then adjourned the trial until 20 April, declaring that judgment would be given on 26 April. 28. On 21 April 2004 the newspaper Gazeta Wyborcza published an article with the heading “Before the judgment” (“Przed wyrokiem”), beginning as follows: “The biggest corruption scandal of the Third Republic will certainly end in a failure for the justice system – regardless of the charges on which Lew Rywin is convicted or the sentence handed down. ... I think that the judgment will be disappointing in terms of the intention and capacity of the justice system to succeed in discovering the truth – this indeed being the mission of the courts and the public prosecutor – beyond the politics. After the Rywin affair, citizens will still be convinced that laws are not enacted but purchased and that even the high-ranking officials of the State – and I quote the public prosecutor – ‘place their personal interests above those of society’; in other words – to call a spade a space – [that they] are corrupt. ...” 29. In a judgment of 26 April 2004 Warsaw Regional Court found the applicant guilty of attempted fraud, under Article 13 of the Criminal Code combined with Article 286 § 1, Article 294 § 1 and Article 12 of the same Code, and sentenced him to two years and six months’ imprisonment and a fine of 100,000 zlotys (PLN). In its reasoning the court found as follows: (a) that it was established that between 15 and 22 July 2002, the applicant had attempted to incite Wanda Rapaczyńska, chair of Agora’s board of directors, and Adam Michnik, editor-in-chief of Gazeta Wyborcza, to dispose of that company’s property with detrimental effect thereto for a value equivalent to USD 17.5 million; (b) that it had not been established that the applicant had been instructed by the Prime Minister or any figures in his entourage. One of the judges on the bench submitted a separate opinion, taking the view that the applicant should have been given a suspended sentence with probation, in view of his age, his professional background and his state of health. 30. After the delivery of the judgment, the president of the trial court of Warsaw Regional Court published a statement. He commended the efforts of his fellow judges to bring the trial to its conclusion in a calm manner, notwithstanding the various comments about the procedure that had been reported in the media. Noting that some of those comments could be regarded as an attempt to influence the court’s work, the president emphasised the following points: that throughout the trial the judges had acted pursuant only to the provisions of criminal law; that the purpose of the trial was different from that of the parliamentary commission of inquiry; and that as professional judges the members of the bench had been able to resist any pressure that might result from the media statements made in connection with the case by various journalists and politicians, or even by certain members of the commission. Pointing out that a statement such as his in the present case was unusual, in view of the judiciary’s duty of discretion, the president explained that he could not refrain from mentioning the remarks made by the author of the article entitled “Before the judgment”, which had been published in the period when the case was under deliberation and which could be regarded, in his view, as an attempt on the part of the journalist to influence the outcome; such statements were, in his view, inadmissible and blameworthy, even in connection with a case which, like the present one and rightly so, had attracted significant media interest. 31. On 23 August 2004 the applicant and the public prosecutor’s office each appealed against the judgment of 26 April 2004. In his statement of appeal the applicant alleged, among other things, that on account of the influence of the commission’s work on the judges, exacerbated by the press coverage of the two sets of proceedings, his trial had been devoid of the requisite fairness under Article 6 of the European Convention on Human Rights. 32. At the end of its last session on 5 April 2004, the commission adopted its final report, concluding that the applicant had acted alone. Several commission members submitted their own draft reports to the Sejm. After examining it at the plenary of 28 May 2004, the Sejm rejected the commission’s report and expressed its preference for that of the MP Zbigniew Ziobro, which was regarded as the most radical. It can be seen from the file that this report was drafted with a view to having the persons concerned held to account before the Tribunal of State. In view of doubts as to the weight of the vote of 28 May, the Sejm endorsed the report by the MP Zbigniew Ziobro by its final vote of 24 September 2004. The position taken in that report was as follows: “Leszek Miller, Prime Minister, Aleksandra Jakubowska, junior minister in the Ministry of Culture, Lech Nikolski, the Prime Minister’s chief of staff, Robert Kwiatkowski, chair of the board of directors of the company TVP S.A., and Wlodzimierz Czarzasty, member of the Broadcasting Media Council, committed, by deliberate and concerted action in July 2002, the offence of bribery, within the meaning of Article 228 § 5 of the Criminal Code taken together with Article 13 § 1 thereof; in that they, [while] influencing the content of the Broadcasting Act being amended and the parliamentary proceedings related thereto, in July 2002, through the intermediary of Lew Rywin, acting as agent of the ‘power-holding group’, made a corrupt proposal to the representatives of Agora S.A, namely on 15 July 2002 to Wanda Rapaczyńska and Piotr Niemczycki and on 22 July 2002 to Adam Michnik, consisting in demanding a financial reward of 17.5 million US dollars (USD), the appointment of Lew Rywin as chairman of the channel Polsat and an undertaking from the company Agora that the newspaper Gazeta Wyborcza would refrain from publishing any criticism of the Prime Minister or government. In return, provisions would be inserted in the Broadcasting Act that would be beneficial for Agora, allowing it to purchase the television channel Polsat. The evidence gathered in this case renders highly plausible (w wysokim stopniu uprawdopodabnia) the above-mentioned account, to the extent of justifying the prosecution of the above-named persons.” 33. The report, disseminated by the media, was widely discussed and commented on by the various public stakeholders. ... 35. In the meantime, the applicant’s trial continued before the Warsaw Court of Appeal. 36. On 23 November 2004 the Court of Appeal informed the parties that the charge against the applicant was likely to be reclassified to aiding and abetting influence peddling (pomocnictwo do płatnej protekcji), an offence under Article 18 § 3 of the Criminal Code taken together with Article 230 of that Code. The Court of Appeal adjourned the proceedings until 8 December 2004 to allow the defence to adapt its strategy to the intended change of classification. On the scheduled date the defence submitted their observations. 37. In a judgment of 10 December 2004 the Court of Appeal found Mr Rywin guilty of aiding and abetting influence peddling (pomocnictwo do płatnej protekcji), an offence under Article 18 § 3 of the Criminal Code taken together with Articles 230 and 12 of that Code, and sentenced him to two years’ imprisonment and a fine of PLN 100,000. In its reasoning, the Court of Appeal found that the applicant had facilitated the perpetration by other individuals – whose identity had not been established – of the offence of bribery. In this connection it found it established that, on 15 and 22 July 2002, the applicant had presented to Wanda Rapaczyńska and Adam Michnik an offer devised by the above-mentioned individuals who, on the strength of their positions at the level of the State, had proposed their assistance as intermediaries to amend the Broadcasting Act in a manner favourable to Agora, thereby enabling it to purchase the television channel Polsat, in exchange for USD 17.5 million, a sum that was to be paid to the Social Democrat Party (SLD) via the bank account of a company belonging to the applicant. 38. In response to the applicant’s complaint that the proceedings of the commission and their media coverage had undermined the fairness of his trial, the Court of Appeal found that this complaint was not substantiated by any tangible evidence; the applicant had not explained concretely how the media reports on the commission’s work had influenced the reasoning of the judges in their deliberations or the outcome of the criminal proceedings, or how the commission’s proceedings and report might have had any impact on the impartiality of the judges or on the reliability of the testimony given before the trial court. The Court of Appeal took the view, in sum, that this was tantamount to implying that only an adjournment of the criminal proceedings pending the outcome of the commission’s work could have preserved its fairness. Noting that the courts were frequently confronted with media interest in a given case, the Court of Appeal was of the view that this fact, in itself, did not suffice for the fairness of the criminal proceedings against the applicant to be called into question. 39. As to the applicant’s complaint that the testimony used in support of his conviction had been vitiated by the fact that the witnesses had been heard by the Regional Court after being questioned on the same circumstances by the commission, in public sittings that had received significant media attention, the Court of Appeal regarded it as ill-founded; testimony was always assessed by judges in accordance with the rules in Article 7 of the Code of Criminal Procedure and in the light of all the evidence. In the present case, the Court of Appeal could not identify any circumstance that would lead it to believe that the witnesses heard by the Regional Court had been influenced by the content of their previous statements to the commission or by those of other witnesses. 40. With reference to the applicant’s complaint that the reasoning of the Regional Court’s judgment was insufficient, the Court of Appeal acknowledged that in certain respects the reasoning had been succinct. Nevertheless, it endorsed that reasoning to a large extent, noting that the Regional Court had examined the relevant aspects of the case and that its conclusion was justified. 41. Lastly, the Court of Appeal dismissed the applicant’s complaint concerning the Regional Court’s refusal to admit in evidence certain items proposed by the defence; the court below had rightly found them superfluous for the outcome of the case. In the view of the Court of Appeal, the exercise of defence rights could not consist in requests made ad infinitum , and in particular those that were irrelevant for its resolution. 42. The applicant and the public prosecutor’s office appealed on points of law. 43. In a decision (postanowienie) of 20 October 2005 the Supreme Court dismissed the two appeals, endorsing the reasoning given by the Court of Appeal. ...