AS TO THE ADMISSIBILITY OF
Application no. 32463/06
by Herbert BACHOWSKI
The European Court of Human Rights (Fourth Section), sitting on 2 November 2010 as a Chamber composed of:
David Thór Björgvinsson,
Vincent Anthony de Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 4 August 2006,
Having deliberated, decides as follows:
The applicant, Mr Herbert Bachowski, is a Polish national who was born in 1939 and lives in Freyung. He was represented before the Court by Mr L. Cholewa, a lawyer practising in Katowice.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1959 the applicant was convicted of the “dissemination of false information”, punishable on the basis of Article 23 paragraph 1 of the so-called “small criminal code” (mały kodeks karny), a decree adopted on 13 June 1946, and was sentenced to three years’ imprisonment. The applicant had prepared and distributed leaflets in which he stated that Poland was dominated by the Soviet Union and that this state of affairs was unacceptable.
He subsequently served two years of his sentence.
On 23 August 1994 the applicant lodged an application under section 3 paragraph 1 of the Law of 23 February 1991 on the annulment of convictions of persons persecuted for activities aimed at achieving independence for Poland (“the 1991 Act”) with the Katowice Regional Court (Sąd Wojewódzki), seeking to have his conviction declared null and void.
On 12 February 1997 the Katowice Regional Court refused to grant his request, having regard to the fact that the 1991 Act only provided a legal basis for quashing judgments given prior to 31 December 1956, when the worst period of political repression ended, whereas the judgment in the applicant’s case had been given in 1959.
In 2001 the Ombudsman brought, on the applicant’s behalf, a cassation appeal against the judgment given in 1959 before the Supreme Court. The Ombudsman argued that the judgment was in breach of the substantive provision forming the basis upon which the applicant had been convicted and sentenced. It was obvious that his conduct, consisting of disseminating leaflets criticising the Soviet Union’s domination of Poland by placing them on walls in different places in his town, had not fulfilled the requirements of criminal conduct penalised by Article 23 paragraph 1 of the “small criminal code”.
It was further argued that the acts committed by the accused had been motivated by his profound hostility towards the communist system and the communist authorities and should have been seen as acts of political opposition. They had been very irritating to the authorities, but this had not rendered them criminal. The courts had failed to establish that the leaflets had amounted to incitement to crime or violence, or that they had contained any praise of criminal acts. Furthermore, the courts had failed to indicate any concrete interests of the Polish State which could have been endangered by the leaflets. Moreover, it was unreasonable to consider that the view expressed about Poland’s domination by the Soviet Union had been untrue, as it had been obvious at that time that this had indeed been the case. Hence, it was impossible to find that disseminating such a view amounted to “disseminating untrue information”. By a judgment of 13 June 2001 the Supreme Court allowed the Ombudsman’s appeal, essentially sharing his views. It acquitted the applicant of the original offence, having found that he had not disseminated any “false information” but rather his legitimate views about the political system in place in 1959, and also held that he had not incited to violence or any unlawful acts. Consequently, it held that the applicant had not committed the criminal offence of which he had been convicted.
Subsequently, the applicant instituted proceedings for compensation for detention which had lacked a legal basis, on the basis of Chapter 58 of the Polish Code of Criminal Procedure.
On 17 December 2004 the Katowice Regional Court awarded him compensation of 35,966 zlotys (PLN). The amount awarded was comprised of PLN 25,200 for non-pecuniary damage (zadośćuczynienie) caused by suffering and loss of life prospects occasioned by his deprivation of liberty, and PLN 10,766 for pecuniary damage (odszkodowanie). The court calculated the latter by taking the applicant’s salary at the time of his arrest, multiplying it for the entire period of his deprivation of liberty and subtracting the average living costs which had been borne during that period by the State.
The applicant appealed, challenging the method of calculation of the pecuniary damages and the amount of non-pecuniary damages. As to the former, he submitted that the method by which it had been calculated had defied equity and justice. The court had calculated it, essentially, by assessing the salary which the applicant could have been paid throughout the time of his imprisonment and by subsequently subtracting from it normal living costs during that time. The court had observed that the applicant had not been obliged to pay his living costs throughout this period because the State had borne them. This method, in the applicant’s view, had entirely overlooked the essential aspects of compensation, namely indemnifying a wronged person and making good pecuniary damage inflicted by the manifestly unjustified and politically-motivated imprisonment imposed by the communist regime. The practice adopted by the courts of reducing awards of pecuniary damage due to victims of past political oppression reduced to nought the possibility for people who had been persecuted in the past for their political activities or ideas to obtain just satisfaction for their suffering at the hands of an oppressive political system.
On 10 March 2006 the Katowice Court of Appeal dismissed his appeal, finding that the method of calculation of pecuniary damages had been consistent with judicial practice as it stood at that time.
On 25 April 2005 the applicant submitted a cassation appeal against the above-mentioned judgment, essentially reiterating the arguments which he had submitted to the appellate court.
On 9 February 2006 the Supreme Court dismissed his appeal as manifestly ill-founded, using a short formula normally used in such cases.
B. Relevant domestic and international law
1. The 1991 Act
The Law of 23 February 1991 on annulment of convictions of persons persecuted for activities aimed at achieving independence for Poland (Ustawa o uznaniu za nieważne orzeczeń wydanych wobec osób represjonowanych za działalność na rzecz niepodległego bytu Państwa Polskiego – “the 1991 Act”) sets out rules concerning the conditions under which certain politically-motivated convictions rendered from 1 January 1944 to 31 December 1956 can be declared null and void, and also provides for the State’s civil liability for such convictions. Section 1 paragraph 1 of the 1991 Act provides, insofar as relevant:
“Convictions or other decisions rendered by the Polish judicial, prosecuting or extra-judicial authorities during the period ... lasting from 1 January 1944 to 31 December 1956 shall be declared null and void if the offence with or of which the person concerned was charged or convicted related to activities undertaken by him or her with the aim of achieving independence for Poland, or if the decision in question was taken on the grounds that he had engaged in activity. The same applies to persons convicted of resisting the collectivisation of farm land and compulsory contributions of foodstuffs.”
Under section 2 of the 1991 Act, a regional court or, in cases concerning military offences, a regional military court, is competent to deal with requests lodged under section 3 of the 1991 Act. Section 3 states, insofar as relevant:
3. A party entitled to file an application under section 1 paragraph 1 shall be entitled to appeal against a decision on whether or not the original decision should be declared null and void.
According to section 2 paragraph 1 in fine of this Law, a decision declaring the original conviction null and void shall be tantamount to a verdict of acquittal. If such a conviction is declared null and void, a victim of repression is entitled, under section 8 paragraph 1 of this Law, to compensation from the State Treasury for his wrongful conviction.
2. Chapter 58 of the Code of Criminal Procedure
Chapter 58 of the Code of Criminal Procedure, entitled “Compensation for unjustified conviction, pre-trial detention or arrest”, stipulates that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty. Article 552 of the Code provides, in so far as relevant:
“1. An accused who, as a result of the reopening of the criminal proceedings against him or of lodging a cassation appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the pecuniary and non-pecuniary damage which he has suffered in consequence of having served the whole or a part of the sentence imposed on him.
3. Explanatory Report to Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 117)
“22. This article provides that compensation shall be paid to a victim of a miscarriage of justice, on certain conditions.
First, the person concerned has to have been convicted of a criminal offence by a final decision and to have suffered punishment as a result of such conviction. According to the definition contained in the explanatory report of the European Convention on the International Validity of Criminal Judgments, a decision is final “if, according to the traditional expression, it has acquired the force of res iudicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them”. It follows therefore that a judgment by default is not considered as final as long as the domestic law allows the proceedings to be taken up again. Likewise, this article does not apply in cases where the charge is dismissed or the accused person is acquitted either by the court of first instance or, on appeal, by a higher tribunal. If, however, in one of the States in which such a possibility is provided for, the person has been granted leave to appeal after the normal time of appealing has expired, and his conviction is then reversed on appeal, then subject to the other conditions of the article, in particular the conditions described in paragraph 24 below, the article may apply.
23. Secondly, the article applies only where the person’s conviction has been reversed or he has been pardoned, in either case on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice - that is, some serious failure in the judicial process involving grave prejudice to the convicted person. Therefore, there is no requirement under the article to pay compensation if the conviction has been reversed or a pardon has been granted on some other ground. Nor does the article seek to lay down any rules as to the nature of the procedure to be applied to establish a miscarriage of justice. This is a matter for the domestic law or practice of the State concerned. The words “or he has been pardoned” have been included because under some systems of law pardon, rather than legal proceedings leading to the reversal of a conviction, may in certain cases be the appropriate remedy after there has been a final decision.
24. Finally, there is no right to compensation under this provision if it can be shown that the non-disclosure of the unknown fact in time was wholly or partly attributable to the person convicted.
25. In all cases in which these preconditions are satisfied, compensation is payable “according to the law or the practice of the State concerned”. This does not mean that no compensation is payable if the law or practice makes no provision for such compensation. It means that the law or practice of the State should provide for the payment of compensation in all cases to which the article applies. The intention is that States would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent. The article is not intended to give a right of compensation where all the preconditions are not satisfied, for example, where an appellate court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge.”
The applicant complained under Article 3 of Protocol No. 7 to the Convention that his right to compensation for a manifestly unjustified conviction had been breached. This was so because the amount which he had ultimately received in compensation for pecuniary and non-pecuniary damage caused by his imprisonment had been ridiculously low and therefore degrading. In addition, the method by which the pecuniary damage had been calculated flew in the face of equity and justice. The court had calculated it, essentially, by assessing the salary which the applicant could have been paid throughout the time of his imprisonment and by subsequently subtracting from it normal living costs during that time. The courts had observed that the applicant had not been obliged to pay his living costs throughout this period because the State had borne them. This method, applied universally by the courts, had entirely overlooked essential aspects of compensation, namely of indemnifying a wronged person and making good pecuniary damage inflicted by the manifestly unjustified imprisonment imposed by the communist regime for purely political reasons. The practice adopted by the courts of reducing awards of pecuniary damages for victims of the communist regime, reduced to nought the possibility for people, including the applicant, who had been persecuted in the past for political activities or ideas, to obtain adequate and just satisfaction for their suffering at the hands of an oppressive political system.
The applicant complained under Article 6 of the Convention that the Supreme Court had dismissed his cassation appeal by a short formulaic statement which had failed to address essential aspects of the glaring lack of fairness and reasonableness of the judicial practice concerning the method of calculation of pecuniary damages which had been applied in his case. This had been in breach of his right of access to court and had made it impossible for the public to know the court’s reasoning when dismissing the appeal. In a democratic society, the written grounds of judicial decisions should make it possible to identify the basis for and soundness of judgments. In the Polish system, as applied in his case, this had proved impossible.
1. The applicant complained under Article 3 of Protocol No. 7 to the Convention that his right to compensation for a manifestly unjustified conviction had been breached, as the compensation which he had received for pecuniary and non-pecuniary damage caused by his imprisonment had been very low and had been calculated using an unfair method. Article 3 of Protocol No. 7 reads:
“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”
The Court has first to determine whether it has temporal jurisdiction to examine the applicant’s complaint under the provisions of Article 3 of Protocol No. 7.
It observes that the aim of this provision is to confer the right to compensation on persons convicted as the result of a miscarriage of justice where such a conviction has been reversed by the domestic courts. It notes that, in the present case, the judgment by which the domestic authorities acknowledged that the applicant’s conviction in 1959 had amounted to a miscarriage of justice and by which the applicant was acquitted was given in 2001, prior to 1 March 2003 when Protocol No. 7 came into force in respect of Poland. However, under the applicable domestic law, the aforementioned judgment was simply a necessary prerequisite for the institution of subsequent proceedings under Article 58 of the Code of Criminal Procedure by which a compensation claim arising from a judgment declared null and void is examined separately. The judgments given in the proceedings concerning the applicant’s compensation claim were given on 17 December 2004, 10 March 2005 and 25 April 2005, after the entry into force of Protocol No. 7 in respect of Poland.
It follows that this complaint is compatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 (see, Zhuravlev v. Russia, no. 5249/06, § 17, 15 January 2009, and, a contrario, Matveyev v. Russia, no. 26601/02, § 38, 3 July 2008).
The Court must also decide whether Article 3 of Protocol No. 7 is applicable to the circumstances of the case ratione materiae. In this connection, the Court refers to the Explanatory Report to Article 3 of Protocol No. 7 which provides as follows:
“[T]he article applies only where the person’s conviction has been reversed ... on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice - that is, some serious failure in the judicial process involving grave prejudice to the convicted person. Therefore, there is no requirement under the article to pay compensation if the conviction has been reversed or a pardon has been granted on some other ground. Nor does the article seek to lay down any rules as to the nature of the procedure to be applied to establish a miscarriage of justice. This is a matter for the domestic law or practice of the State concerned.”
In the present case, the Court observes that the 1991 Act put in place a specific legal scheme designed to examine the validity of judicial decisions given in the past by the communist authorities which may have had the purpose of repression of political opposition. Applied in conjunction with Chapter 58 of the Code of Criminal Procedure, the 1991 Act allows victims of repression to seek compensation for unlawful deprivation of liberty. In the applicant’s case this scheme could not be resorted to, given that it applied only to decisions given during the period in which the criminal law was habitually used to repress political opposition – which period the legislature determined had finished at the end of 1956. However, in the applicant’s case his conviction was reversed following a cassation appeal brought by the Ombudsman on his behalf. In those proceedings the Supreme Court recognised that the judgment given in 1959 in the criminal case against the applicant was based on an unacceptable interpretation and application of legal provisions. The Supreme Court held that the applicant had not committed the criminal offence of which he had been convicted and that the courts had misapplied the substantive criminal law.
Subsequently, the courts which heard the compensation proceedings awarded compensation to the applicant.
However, the Court observes that the applicant’s criminal conviction was not quashed on the basis of any new or newly discovered facts within the meaning of Article 3 of Protocol No. 7. The applicant was granted compensation because the Supreme Court agreed with the arguments advanced by the Ombudsman in his appeal – and noted in its judgment – to the effect that the applicant’s conviction of 1959 was based on an unacceptable legal assessment of his conduct.
The Court concurs with the conclusions of the domestic courts and the legal view which they expressed in respect of the applicant’s original conviction. It would be incompatible with both the tenets of the rule of law and respect for human rights if a criminal conviction given prior to the entry into force of the Convention and manifestly motivated by the goals of an oppressive political regime remained valid after the convicted person requested to have it reversed in accordance with the applicable provisions of domestic law.
Nonetheless, in the present case the judgment concerned had not been issued on the basis of the omission or concealment of facts which could or should have been known to the court in 1959, or by the coming to light of new facts which occurred after that date and which would have been of such nature as to cast fundamental doubt on the soundnesss of the criminal conviction. The domestic courts acknowledged that the judgment given in 1959 was unacceptable because the applicable substantive criminal law had been seriously distorted and misapplied in that case. Hence, the acquittal of the applicant was due to a reassessment by the Supreme Court of the evidence which had already been used and known to the court in the original proceedings.
In this context, the Court has had regard to the statements made in the Explanatory Report to Protocol No. 7 to the Convention according to which this provision is applicable only when the original conviction has been reversed because of a new or newly discovered fact showing conclusively that in the original proceedings there was a serious failure in the judicial process. The Court is of the view that it was the intention of the drafters of Article 3 of Protocol No. 7 to delineate the scope of the application of this provision in a narrow manner. The right to compensation was excluded in respect of reversals of conviction that were based “on some other ground: than that related to “new or newly discovered fact”.
Therefore the circumstances of the case, in the Court’s view, do not fall within the scope of Article 3 of Protocol No. 7 of the Convention.
Having regard to the foregoing and to the Explanatory Report to Article 3 of Protocol No. 7, the Court considers that the conditions for the applicability of Article 3 of Protocol No. 7 have not been complied with. It observes that the complaint does not give rise to issues under any other provision of the Convention or Protocols thereto.
It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3.
2. The applicant complained under Article 6 of the Convention that the Supreme Court had dismissed his cassation appeal by way of a short formulaic statement which had failed to address the essential points raised by him in his appeal.
The Court reiterates that Article 6 § 1 of the Convention obliges courts to give reasons for their decisions, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty applies may vary according to the nature of the decision. It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 § 1, can only be determined in the light of the circumstances of the case (see, among many other authorities, Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A; Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288; Wnuk v. Poland (dec.), no. 38308/05, 1 September 2009).
The Court reiterates that where the highest court in a country refuses to accept a case or where it examines a remedy on its merits and dismisses it on the basis that the legal grounds for amending or quashing a contested judgment are not made out, very limited reasoning may satisfy the requirements of Article 6 of the Convention (see Helle v. Finland, 19 December 1997, § 55, Reports of Judgments and Decisions 1997-VIII; Nerva and Others v. the United Kingdom, no. 42295/98, ECHR 2002-VIII; and, mutatis mutandis, Wnuk v. Poland (dec.), cited above). As regards the preliminary procedure for the examination and admission of cassation appeals, the Court has previously acknowledged that an appellate court is not required to give more detailed reasoning when it simply applies a specific legal provision to dismiss a cassation appeal as having no prospects of success, without further explanation (see Salé v. France, no. 39765/04, § 17, 21 March 2006; Burg and Others v. France (dec.), no. 34763/02, ECHR 2003-II; and Gorou v. Greece (no. 2) [GC], no. 12686/03, § 41, ECHR 2009-...).
Moreover, the Court has already examined similar complaints against Poland and declared them to be manifestly ill-founded(see Walczak v. Poland (dec.), no. 77395/01, 7 May 2002; and Guz v. Poland (dec.), no. 29293/02, 19 May 2005; Makuszewski v. Poland, no. 35556/05, 13 January 2009; see also, in respect of similar characteristics of civil proceedings, Wnuk v. Poland, cited above). The Court noted, in the context of proceedings conducted under the provisions of the Code of Criminal Procedure, that it was open to the Supreme Court to dismiss a cassation appeal at a session held in camera, without the participation of the parties. Under the applicable provisions of criminal procedure that possibility was limited to cases in which the Supreme Court considered, having examined the written submissions of the parties, that the cassation appeal was manifestly ill-founded in that the alleged procedural shortcomings either had not occurred or had not been substantiated, or that the shortcomings complained of had not fallen within the ambit of procedural irregularities which could be relied on in the cassation appeal proceedings. The Court went on to observe that the issue for the Supreme Court’s decision was whether the applicant had demonstrated the existence of arguable grounds, which would justify holding a hearing in the cassation proceedings (cf. Monnell and Morris v. the United Kingdom, judgment 2 March 1987, Series A, no. 115, p. 22, § 56). In that decision the Court rejected the complaint about unfairness of the proceedings before the Supreme Court, having concluded that in the light of the procedure designed for examination of the cassation appeal, seen as a whole, there had been no reason to doubt that the Supreme Court’s decision had been based on a thorough assessment of the relevant factors.
The Court observes that the applicant has not adduced any arguments to show that the circumstances of the present case differ in any respect from the cases against Poland referred to above or that they raise any new issues.
Hence, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this complaint is manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Aracı Nicolas Bratza
Deputy Registrar President
BACHOWSKI v. POLAND DECISION
BACHOWSKI v. POLAND DECISION