CASE OF WARSICKA v. POLAND

FOURTH SECTION

CASE OF WARSICKA v. POLAND

(Application no. 2065/03)

JUDGMENT

STRASBOURG 

16 January 2007

FINAL

16/04/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Warsicka v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

SirNicolas Bratza, President,
MrJ. Casadevall,
MrM. Pellonpää,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr T.L. Early, Section Registrar,

Having deliberated in private on 12 December 2006,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 2065/03) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms Barbara Warsicka.

2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The applicant was represented by Mr J. Hajduk, a lawyer practising in Zielona Góra.

3. On 26 September 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant, the owner of real property which she had been renting, filed a civil action for damages against the tenant. On 4 September 2000 her action was dismissed by a judgment of the Zielona Góra Regional Court. The applicant appealed against the judgment. On 19 June 2001 her appeal was dismissed by a judgment of the Poznań Court of Appeal. Judge S. G. was the judge rapporteur in the case.

5. The applicant lodged a cassation appeal against the judgment through a panel of the Poznań Court of Appeal. On 22 October 2001 her cassation appeal was rejected by a decision of that panel. In its written grounds for the decision, the panel stated that the cassation appeal did not comply with a procedural requirement set out in Article 393 3 § 1 (3) of the Code of Civil Procedure in that it did not include “arguments showing that its examination [by the Supreme Court] would be justified” within the meaning of this provision (see paragraphs 14-16 below). The mere fact that the cassation appeal contained arguments to show the grounds on which it had been lodged was insufficient for the appeal to be declared admissible. The panel further stated that this shortcoming was serious and as such could not be remedied.

Judge S.G. presided over the panel which gave this decision and also acted as the judge rapporteur on the admissibility issue.

6. The applicant lodged an appeal with the Supreme Court against the decision of 22 October 2001, challenging inter alia the composition of the court. She submitted that the fact that the same judge had sat on a panel giving a second-instance judgment on the merits and subsequently on a panel rejecting a cassation appeal against that judgment rendered the proceedings unfair.

7. On 7 March 2002 her appeal was dismissed by a decision of the Supreme Court. The court first noted the case-law of the Supreme Court on the interpretation of Article 393 3 § 1 (3) of the Code. It referred to its numerous judgments to the effect that a shortcoming in a cassation appeal which took the form of a failure to enumerate the circumstances justifying its examination was of a serious and irreparable character, which could not be remedied by requesting the appellant to rectify it. It further noted that this requirement was closely linked to the examination of the grounds on which the Supreme Court could refuse to entertain a cassation appeal, as listed in Article 393 of the Code (see paragraph 18 below), namely if it considered that no significant legal issue arose in the case or where there were no legal issues involved which would give rise to serious doubts or to discrepancies in the case-law.

8. It referred to the applicant’s objection in one sentence only:

“The fact that the judge, who took part in the judgment against which the cassation appeal was subsequently lodged, participated in a decision by which this appeal was found inadmissible is of no significance”.

II. Relevant domestic law and practice

1.Relevant provisions of the Constitution

9. Article 45 of the Constitution, insofar as relevant, reads:

“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court. ...”

2.Provisions on judicial impartiality in the Code of Civil Procedure of 1964 and relevant case-law

10. Article 48 reads in its relevant part:

Ҥ 1. A judge is ex lege excluded from dealing with the case: (...)

5) in cases where he participated in a contested decision of a lower instance.”

11. The Supreme Court decision of 22 August 1974 (II CZ 160/74) reads in its relevant part:

“A judge who participated in a judgment is not excluded from giving subsequent decisions in the course of so-called “inter-instance proceedings”.

12. The Supreme Court decision of 3 October 2001 (V CZ 162/01) states, inter alia, that Article 3933 of the Code of Civil Procedure sets out formal requirements which a cassation appeal has to satisfy. It is for the second-instance court to examine whether these requirements have been met.

The provisions of the Code determine when a judge is ex lege excluded from dealing with the case. It does not follow from these provisions that a judge who has given a second-instance judgment is to be excluded from participation in a subsequent examination of whether a cassation appeal complies with the formal requirements provided for by the Code.

13. The Supreme Court reached the same conclusion in its decision of 22 April 2002 (IPZ 21/01). It considered that the examination of the admissibility of the cassation appeal could not be said to have anything in common with the examination of the merits of the case, because the former has a purely formal character.

3. The cassation appeal

14. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a final judicial decision of a second-instance court which has terminated the proceedings.

15. Article 393 1 of the Code as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows:

“The cassation appeal may be based on the following grounds:

1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;

2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”

16. Article 393 3, as applicable at the material time, specified the requirements of a cassation appeal. It read in its relevant part:

Ҥ 1. A cassation appeal should include:

1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only;

2) an indication of the grounds for the cassation appeal;

3) arguments showing that its examination would be justified;

4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.”

17. Article 393 4, as applicable at the material time, read as follows:

“A second-instance court rejects in a hearing held in camera a cassation appeal lodged after a prescribed time-limit or which is inadmissible on other grounds (...).”

18. The reasons justifying the examination of a cassation appeal by the Supreme Court can be inferred a contrario from Article 393 of the Civil Code of Procedure which, as applicable at that time, read, in its relevant part:

“1. The Supreme Court may refuse to entertain the cassation appeal, if:

i) there is no appearance of any significant legal issue in the case;

ii) there is no need for the interpretation of provisions raising serious doubts or giving rise to discrepancies in the courts’ case-law;

iii) the appeal is manifestly ill-founded.

2. Paragraph 1 shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law.”

19. Pursuant to Article 39318 of the Code, an appeal to the Supreme Court was available against a decision of the appellate court rejecting a cassation appeal.

4.Relevant case-law of the Supreme Administrative Court

20. Under the provisions of the Act on Procedure before Administrative Courts 2002 a cassation appeal is available against judgments of Regional Administrative Courts to the Supreme Administrative Court. As an appeal on points of law, it has the same character as a cassation appeal in civil proceedings.

21. On 23 May 2005 the Supreme Administrative Court, in reply to a legal question put to it by its .President, adopted an explanatory resolution. It observed that serious difficulties had arisen in the judicial practice of the administrative courts as to whether a judge who had given a second-instance judgment had to be excluded from participation in a subsequent examination of the compliance of a cassation appeal with the formal requirements provided for by the Act of 2002.

The court referred to the fair hearing standard established by Article 6 of the Convention. It noted that the case-law of the European Court of Human Rights emphasised the importance of judicial impartiality. However, the examination of whether a given court satisfied this requirement should always be carried out with reference to the facts of an individual case and the modalities of a given type of judicial procedure.

The court observed that under the applicable laws an appeal on points of law to the Supreme Administrative Court was available against a judgment of a regional administrative court. Hence, it was obvious that the parties had a right to have their administrative case heard by two impartial judicial instances. The need to secure such impartiality served as a ratio legis for the exclusion of a judge from the examination of the same case in two judicial instances. However, the court stressed that the requirement of impartiality was complied with if the same judge was prevented from examining twice the merits of the same case.

The court further observed that the examination of the admissibility of a cassation appeal in administrative proceedings could be identified neither with the examination of the merits of such an appeal, nor with the examination of whether the impugned first-instance judgment was well-founded. A distinction had to be made between the examination of the admissibility and the latter two types of examination which essentially related to the substance of the first-instance judgment. It held that there were no grounds on which to consider that a judge involved in the examination of the merits of the case should not be allowed to sit on a panel examining the admissibility of the cassation appeal.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

22. The applicant complained that she had been deprived of the right to a fair hearing provided in Article 6 § 1 of the Convention, which, as relevant, reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

A. Admissibility

23. The Government argued that the application had not been submitted within the six-month period provided for by Article 35 of the Convention. The applicant disagreed.

24. The Court notes that the final decision was given in the case on 7 March 2002 and was served on the applicant’s representative on 12 July 2002. The application was lodged with the Court on 31 December 2002. Accordingly, the Court finds that the applicant has submitted the application in compliance with Article 35 § 1 of the Convention. It further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other ground. It must therefore be declared admissible.

B. Merits

1.The arguments of the parties

25. The Government first submitted that Article 48 of the Code of Civil Procedure expressly provided that a judge who had already dealt with the merits of a case was excluded ex lege from examining the case in a higher instance.

26. They further submitted that the concept of an impartial tribunal, understandably, did not allow a judge who had already participated in the examination of the merits of a civil case to review the same case when sitting in a higher court. The legal prohibition on a judge deciding the same case in successive stages of the proceedings, laid down by Article 48 of the Code, should be regarded as a guarantee against the merits of the same case being examined twice by the same person.

27. However, in the Government’s view, this rule should not be interpreted in such a way as to exclude a judge who dealt with the merits of a case from any subsequent judicial involvement in that case whenever only procedural issues were concerned.

28. They drew the Court’s attention to the fact that the cassation appeal to the Supreme Court against a second-instance judgment of a civil court had to be, under the applicable provisions of the Code of Civil Procedure, lodged with the appellate court which had delivered the judgment. It fell to that court to carry out an examination of whether the formal conditions of admissibility of an appeal, provided for by Article 393 3 of that Code, were met (see paragraph 16 above). These requirements were essentially of a technical character. When a court of appeal found that a cassation appeal complied with these requirements, its only task was to forward it, together with the file, to the Supreme Court. An appellate court, when verifying compliance with formal conditions, was not therefore engaged in any tasks linked to the merits of the judgment under appeal. Its role ceased at the point of assessing the pre-admissibility of the cassation appeal.

29. In the present case, the Poznań Court of Appeal, in its decision of 22 October 2001, had found that the applicant had failed to present arguments justifying the examination of the cassation appeal. Hence, her appeal failed to satisfy one of the essential conditions prescribed by law.

30. The Government finally noted that the applicant subsequently appealed against this decision to the Supreme Court, which dismissed her appeal. That court correctly observed that the fact that Judge S.G. had previously taken part in the examination of the merits of the case and had subsequently participated in the examination of the admissibility of the cassation appeal, had been irrelevant. The Government further referred to the Supreme Court’s case-law to the effect that it could not be inferred from the provisions of the Code of Civil Procedure that a judge who had taken part in the second-instance proceedings on the merits was to be excluded from the subsequent examination of whether the procedural requirements for a cassation appeal against the judgment on the merits had been complied with.

31. The applicant submitted that there was a crucial difference between the examination of purely formal requirements for the admissibility of an appeal, such as whether the appeal had been lodged within the time-limit, whether the court fee had been paid, whether it had been signed, etc., and the examination of those substantive aspects of the appeal which fell within the scope of “arguments justifying its examination”. The latter type of assessment clearly went beyond purely technical considerations of the appeal. In order to safeguard the impartiality of a court, judges involved in the examination of cases on their merits should not examine appeals against such judgments.

32. The applicant further stressed the importance of judicial impartiality in a democratic society, as guaranteed by the Polish Constitution and the relevant provisions of the Code of Civil Procedure.

33. The applicant concluded that in her case the appearance of impartiality had not been preserved in that the same judge had first participated in the examination of the merits of the case and later on declared the appeal against the judgment on the merits inadmissible. Such a situation should not be seen as compatible with the authority and image of the judiciary.

2.The Court’s assessment

34. The Court reiterates at the outset that the manner in which the requirements of Article 6 of the Convention apply in relation to appeal proceedings depends on the special features of the proceedings involved. Account must be taken of the entirety of the proceedings conducted in the domestic legal order and the court of cassation’s role in them; the nature of those proceedings and their significance in the context of the proceedings as a whole must be considered (see, among other authorities, Brualla Gómez de la Torre v. Spain judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VII, p. 2956, § 37).

35. The Court further reiterates that it is of fundamental importance in a democratic society that the courts inspire confidence in the public (see the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, § 27). To that end Article 6 requires a tribunal falling within its scope to be impartial. Impartiality normally denotes absence of prejudice or bias and its existence or otherwise can be tested in various ways. The Court has thus distinguished between a subjective approach, that is endeavouring to ascertain the personal conviction or interest of a given judge in a particular case, and an objective approach, that is determining whether he or she offered sufficient guarantees to exclude any legitimate doubt in this respect (see Piersack v. Belgium, judgment of 1 October 1982, Series A no. 53, § 30 and Kyprianou v. Cyprus [GC], no. 73797/01, § 118-119, ECHR 2005‑...).

36. In applying the subjective test the Court has consistently held that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, p. 21, § 47). The principle that a tribunal shall be presumed to be free of personal prejudice or partiality is long established in the case-law of the Court (see, for example, Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1981, Series A no. 43, p. 25, § 58).

37. As to the second test, when applied to a body sitting as a bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even appearances may be of some importance (see Castillo Algar v. Spain, judgment of 28 October 1998, Reports 1998-VIII, p. 3116, § 45 and Morel v. France, no. 34130/96, § 42, ECHR 2000‑VI). When it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see Ferrantelli and Santangelo v. Italy, judgment of 7 August 1996, Reports 1996-III, pp. 951-52, § 58, and Wettstein v. Switzerland, no. 33958/96, § 44, CEDH 2000-XII).

38. In the present case, the Court observes that Judge S.G. exercised the function of judge rapporteur in the panel of the Poznań Court of Appeal which gave a judgment on the merits of the applicant’s claim. Subsequently, he was also the rapporteur in the judicial panel of that same court which carried out an assessment of the admissibility of her cassation appeal against that judgment. Hence, he exercised the function of judge rapporteur in two successive stages of the same proceedings. He was, in addition, the president of the panel deciding on the admissibility of the applicant’s appeal.

39. As regards the subjective test, it has not been shown or argued that Judge S.G. when he participated in the panel which ruled on the admissibility of the applicant’s appeal on 22 October 2001, held or manifested any personal convictions such as to cast doubt on his subjective impartiality.

40. As regards the objective test, the Court is of the view that the requirements of a fair hearing as guaranteed by Article 6 § 1 of the Convention do not automatically prevent the same judge from successively performing different functions within the framework of the same civil case. In particular, it is not prima facie incompatible with the requirements of this provision if the same judge is involved, first, in a decision on the merits of a case and, subsequently, in proceedings in which the admissibility of an appeal against that decision is examined (Eur. Comm. HR, R.M.B. v. the United Kingdom, No. 37120/97, dec. 9 September 1998). The assessment of whether the participation of the same judge in different stages of a civil case complies with the requirement of impartiality laid down by Article 6 § 1 is to be made on a case-to-case basis, regard being had to the circumstances of the individual case and, importantly, to the characteristics of the relevant rules of civil procedure applied to the case. In particular, it is necessary to consider whether the link between substantive issues determined in a decision on the merits and the admissibility of an appeal against that decision is so close as to cast doubt on the impartiality of the judge.

41. Turning to the circumstances of the present case, the Court is of the view that it is crucial for the assessment of the case that a further recourse was available to the applicant against the decision of the Court of Appeal. The applicant availed herself of this possibility and lodged an appeal with the Supreme Court. She challenged the composition of the panel which had examined the admissibility of her cassation appeal in so far as Judge S.G. had participated in it. The Supreme Court examined her objection and concluded that it was unfounded.

Irrespective of the challenge to the composition of the panel, it is further to be stressed that in her appeal the applicant requested the Supreme Court to review whether the decision of the panel had been lawful. Accordingly, the Supreme Court examined the decision of the panel on the admissibility of the applicant’s cassation appeal and, like the panel, concluded that it failed to comply with applicable procedural requirements. The Court notes that the applicant has not contested the impartiality of the Supreme Court.

42. The Court would further observe that the present case is different from the Oberschlick v. Austria case in which a lack of impartiality of a court was found where domestic law prohibited the participation of appeal judges in both the first and the second set of proceedings (Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, § 50). In that connection, the Court emphasises that the issues concerned in the present case have already been addressed by Poland’s highest courts.

The Supreme Court was of the view that the examination of the admissibility of a cassation appeal against a judgment of a civil court could not be said to have anything in common with the examination of the merits of the case (see paragraphs 11-13 above).

For its part, the Supreme Administrative Court had regard, inter alia, to the nature of the issues involved in the examination of the admissibility of cassation appeals in administrative proceedings. It was, likewise, of the view that the fact that the same judge gave a judgment on the merits of a case and subsequently participated in the examination of the admissibility of a cassation appeal against such a judgment was in compliance with the provisions of domestic law insofar as it guaranteed the impartiality of a court (see paragraphs 20-21 above).

43. The Court also notes that the present case differs from the Indra v. Slovakia case. In the latter, the applicant complained that the court which had heard his appeal on points of law was not impartial, because one of the judges of the Supreme Court who had rejected this appeal had previously been on the panel of judges who dismissed his appeal against the first-instance judgment. The Court emphasised the close link between the substantive issues examined by the appellate court and the issues involved in the subsequent examination of the applicant’s appeal on points of law. It concluded that the situation complained of could therefore have raised legitimate fears in the applicant that the judge in question would not have approached his case with the requisite impartiality (Indra v. Slovakia, no. 46845/99, 1 February 2005, §§ 51-54).

44. In the present case, however, the question for determination by the panel was not the same as the question which the Court of Appeal had determined by its judgment of 19 June 2001. On the latter occasion the court was examining the substance of the applicant’s appeal against the first-instance judgment on the merits of the case. On the former, the panel had to determine only the admissibility of the applicant’s cassation appeal against the second-instance judgment given by that court. In the Court’s view, the scope of the examination involved cannot be said to amount to the assessment of the merits of the cassation appeal, which is the exclusive task of the Supreme Court.

45. Hence, the Court considers that Judge S.G., when participating as the judge rapporteur in the panel deciding on the admissibility of the applicant’s appeal, was not called upon to assess and determine whether, for example, the Court of Appeal, sitting as a bench in which he had previously participated in the same capacity, had correctly applied the relevant domestic law to the applicant’s case (Stepinska v. France, no. 1814/02, 15 June 2004, mutatis mutandis). There was no such link between substantive issues determined by the judgment on the merits and the admissibility of the cassation appeal which would cast doubt on the impartiality of that judge (see paragraph 40 in fine, above).

46. Having regard to the circumstances of the case taken as a whole, the Court is of the view that it cannot be said that the applicant’s fears as to the impartiality of the Court of Appeal when examining the admissibility of her cassation appeal were objectively justified.

47. Accordingly, there has been no violation of Article 6 § 1 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 16 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

T.L. EarlyNicolas Bratza
RegistrarPresident

 

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