AS TO THE ADMISSIBILITY OF
Application No. 26760/95
by Mikolaj WERNER
against Poland
The European Commission of Human Rights sitting in private on
19 January 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 November 1994
by Mikolaj Werner against Poland and registered on 20 March 1995 under
file No. 26760/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
29 December 1995 and the observations in reply submitted by the
applicant on 27 March 1996 and on 28 January 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Polish citizen born in 1946, is a lawyer
residing in Koszalin.
The facts of the case, as submitted by the parties, may be
summarised as follows:
On 15 December 1993 the Koszalin District Court (S*d Rejonowy)
appointed the applicant to the function of trustee in bankruptcy of a
limited liability company H. located in Koszalin.
On 19 March 1994 judge M., who supervised the bankruptcy
proceedings, requested the Koszalin District Court to dismiss the
applicant from his function. She submitted that the applicant had been
involved in civil proceedings relating to his failure to pay salaries
to his employees and that the court had found against him. Thus he did
not comply with the legal requirements of a trustee of an estate in
bankruptcy as he could not be considered trustworthy. Furthermore,
until the end of January 1994 he had failed to give notice to all the
employees of the H. company; thus he had not carried out his
obligations as a trustee in a satisfactory manner as required by the
law.
On 21 March 1994 the Koszalin District Court, in a panel composed
of three judges, including judge M., at a session held in camera,
dismissed the applicant and appointed a new trustee. No party to the
bankruptcy proceedings attended the hearing and the applicant was,
likewise, not present.
On 28 March 1994 the applicant appealed against this decision.
He submitted that, while it was true that no appeal could be filed
against the decision to appoint a new trustee, the law was not clear
as to whether an appeal lay against that part of the decision by which
he had been dismissed. Furthermore, his good reputation as a lawyer
and as an employer had been damaged both by the contents of judge M.'s
motion and by the District Court's decision to dismiss him. He
submitted that certain statements in the motion were incorrect as to
the facts. Therefore he had to lodge an appeal in order to challenge
them. He contested both the allegation that he was untrustworthy and
that he had not been carrying out his duties satisfactorily. He
further submitted that judge M., considering her own claim, had acted
both as a claimant and as a member of the Court, which called into
question the impartiality of the Koszalin District Court.
On 30 March 1994 the Koszalin District Court rejected the
applicant's appeal. The Court considered that the Bankruptcy Act did
not provide for an appeal against dismissal of a trustee in bankruptcy.
Judge M. was entitled to participate in the court panel as the
Bankruptcy Act excluded participation of a judge-supervisor only where
an appeal lay against a decision of that judge.
The applicant appealed to the Koszalin Regional Court (S*d
Wojewódzki), submitting that the District Court was wrong to hold that
there was no appeal against its decision. He reiterated that he was
deprived of a possibility to have the allegations against him reviewed
by a court.
On 8 July 1994 the Koszalin Regional Court dismissed the
applicant's appeal. The Court considered that, according to the
Bankruptcy Act, no appeal lay against the decision by which a previous
trustee was dismissed and a new one appointed.
On 29 April 1996 the Koszalin Regional Court convicted the
applicant of misappropriation of the "H." company's assets, sentenced
him to one year's imprisonment and suspended the execution of the
sentence for a period of two years.
On 26 September 1996 the Koszalin Court of Appeal (S*d
Apelacyjny) quashed this judgment and ordered that the case be
reconsidered.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
that he was denied access to a court. He contends that the motion to
dismiss him from the paid function of trustee in bankruptcy, submitted
by judge M., contained disparaging statements and unfounded allegations
against him. As no appeal is possible against this decision, he was
deprived of any possibility of challenging these allegations. His
dismissal has become publicly known and caused numerous unfavourable
comments as regards his personal qualities and professional skills as
a lawyer. Thus his right to enjoy a good reputation has suffered.
The applicant complains under Article 6 para. 1 of the Convention
that in the proceedings relating to his dismissal, the supervising
judge M. had acted both as a claimant and as a judge, when
participating in a court panel which decided to dismiss him. This
called into question the impartiality of the Koszalin District Court.
Also under Article 6 para. 1 of the Convention he complains that
the court session at which he was dismissed was held in camera. Thus
he did not have any possibility of defending himself against the
allegations and of presenting his arguments to the court.
He complains under Article 3 of the Convention that these
allegations amounted to degrading treatment.
The applicant further complains under Article 13 of the
Convention that he had no effective remedy to complain about his rights
under Articles 3 and 6 being breached by persons acting in an official
capacity.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 November 1994 and registered
on 20 March 1995.
On 28 June 1995 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
29 December 1995, after an extension of the time-limit fixed for that
purpose. The applicant replied on 27 March 1996. On 18 June 1996 the
Government submitted additional observations to which the applicant
replied on 28 January 1997.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he was denied access to court to refute disparaging
statements and unfounded allegations against him contained in judge
M.'s motion for his dismissal from the function of trustee in
bankruptcy.
Article 6 para. 1 (Art. 6-1) of the Convention reads:
"1. In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing
... by an ... impartial tribunal ..."
a) The Government concede that the applicant exhausted relevant
domestic remedies in respect of his dismissal. However, he failed to
exhaust domestic remedies as regards the allegedly disparaging
statements of judge M. It was open to him to institute proceedings
before a civil court pursuant to Articles 23 and 24 of the Civil Code,
requesting that these statements be rectified and apologised for and,
in particular, that the judge make a public statement to the effect
that they were erroneous. If the applicant could show that he suffered
financial prejudice as a result thereof, compensation could be awarded.
The Government further submit that the fact that the person who made
the allegedly disparaging statements acted in his or her official
capacity does not amount to any impediment to such action being lodged.
The Government further observe that the applicant did not adduce any
evidence in support of his assertion that the statements concerned
damaged his reputation. They finally observe that, in fact, in the
light of the applicant's criminal conviction for misappropriation of
assets of the "H." company, which came to light following the
Government's inquiry into the present case, the judge's submissions
cannot be seen as unjustified, and that the applicant's argument to
this effect is unfounded. Thus, it is not conceivable that an action
by the applicant for protection of his personal rights pursuant to
Articles 23 and 24 of the Civil Code would stand any chances of success
before the court. They conclude that the applicant did not comply with
the requirements of Article 26 (Art. 26) of the Convention.
The applicant submits that the Government's position is
contradictory in that they state that the domestic remedies concerning
the same complaint were in part exhausted and in part not. His appeal
against his dismissal related to the cause of damage to his reputation,
i.e. to the judge's allegations, and to the result which they had
caused, i.e. to his dismissal. He emphasises that by way of appeal,
he sought a possibility of refuting the statements before the court in
the same proceedings which concerned his dismissal. Had there been an
appeal available against his dismissal, there would have been a
possibility of a judicial review of both the cause and the result. The
civil claim under Articles 23 and 24 of the Civil Code relied on by the
Government constitutes an entirely separate legal basis for seeking
protection of reputation. If the Government's argument was accepted,
he would have to institute separate proceedings, which would relate
only to the protection of his reputation. This would put an undue
burden on him.
The Commission recalls its case-law, according to which the
burden of proving the existence of available and sufficient remedies
lies upon the State invoking the rule (N. 23414/94, Dec. 28.11.95, D.R.
83-A, p. 31).
The Commission first observes that no appeal lay to a higher
court against the Koszalin District Court's decision to dismiss the
applicant. It further notes that the remedy referred to by the
Government would necessitate that the applicant institute separate
proceedings before a civil court. The Government have not shown that
there is a remedy available under Polish law which would encompass an
examination of both the allegations against the applicant put forward
by judge M. and of the well-foundedness of his dismissal. In these
circumstances the Commission considers that it has not been established
that the applicant had an effective remedy at his disposal.
It follows that this part of the application cannot be rejected
for non-compliance with the requirement to exhaust domestic remedies.
b) As regards the applicability of Article 6 para. 1 (Art. 6-1) of
the Convention to the proceedings concerned, the Government first
recall that Article 6 (Art. 6) is applicable where there is a serious
and genuine dispute relating to rights and obligations recognised at
least on arguable grounds in domestic law and that the outcome of the
dispute must be directly decisive for the rights or obligations
concerned.
The Government further submit that the jurisdiction of the court
in the bankruptcy proceedings encompasses all aspects of the
liquidation of assets of the bankrupt company. The trustee is the
court's assistant appointed to manage the estate in bankruptcy since
the court cannot assume these duties. Therefore the trustee performs
a public function and he is supervised by the court in its exercise.
Polish law does not set out the requirements that must be satisfied by
a candidate for a post of trustee. The decision is to be taken by the
court following an appraisal of the competence of the person concerned.
As a consequence, as the law entrusts the court with a duty to appoint
the trustee, it is likewise entitled to dismiss him or her if the
relevant duties are not performed properly.
The Government further refer to the applicant's criminal
conviction for misappropriation of assets of the bankrupt company,
pronounced on 29 April 1996. This proves, they emphasise, that the
applicant's dismissal was well-founded, and that the judge's
submissions in her motion to the court cannot be considered
unjustified.
The Government consider that the assessment made by the court in
the present case is similar to that which was examined by the European
Court of Human Rights in the Van Marle judgment (Eur. Court HR, Van
Marle v. the Netherlands judgment of 26 June 1986, Series A no. 101)
in that the examination and evaluation of professional competence by
a public authority is a matter which cannot be brought under the notion
of civil rights.
The Government further emphasise that neither appointment nor
dismissal of the trustee are governed by the provisions of labour law.
In particular, the provisions of the Labour Code are not applicable
thereto. It is only the factual aspect of the trustee's duties that
can be considered comparable to an employment, not the legal one.
Further, the remuneration of a trustee is fixed on the basis of the
Minister of Justice's by-law enacted pursuant to the Bankruptcy Act.
The Government further submit that there is no civil right or
claim to be a trustee in bankruptcy. Even assuming that such right
exists in domestic law, the Convention does not guarantee a fair
hearing in the determination of all the rights and obligations which
an individual might arguably claim under domestic law. In the present
case there is no possibility for anyone to exercise a right "to be
a trustee" and no corresponding obligation of the State to ensure that
such right be exercised.
The Government conclude that in view of the special character of
the legal rules pertaining to the function of trustee in bankruptcy,
Article 6 (Art. 6) of the Convention is not applicable to the
proceedings relating to his dismissal as they do not concern the
applicant's civil rights and obligations within the meaning of this
provision.
The applicant submits that the scope of Article 6 (Art. 6) of the
Convention extends to the determination of civil rights and obligations
and of criminal charges. This should be understood in such a manner
that the proceedings which are not covered under the criminal head of
this provision fall within its scope of application under its civil
head. Thus, cases concerning civil rights, as well as rights
originating from the provisions of administrative law, labour law,
intellectual property law, family law and, ultimately, bankruptcy law,
would be subject to the guarantees of this provision of the Convention.
The restrictive interpretation of the scope of application of Article
6 (Art. 6) of the Convention, relied on by the Government, would run
counter to the Convention organs' case-law. The conclusion that there
are legal relations which do not fall within the scope of either of the
domains of Article 6 para. 1 (Art. 6-1) would not be compatible with
the Convention's character and purpose.
The applicant emphasises that the Government failed to indicate
any procedure, either of a judicial or a non-judicial character, in
which he could seek redress. He further submits that the Government's
submissions, in their part relating to his criminal conviction, contain
a negative assessment of his personal qualities. He emphasises that
the central issue of the present case is the complaint about his rights
being breached, not the assessment of him as a person. He states that
he did not participate in the enquiry concerning the present case,
referred to by the Government. He finally submits that the
Government's argument based on his criminal conviction amounts to
defamation as on 26 September 1996 the Court of Appeal quashed this
judgment. Moreover, the charges against him in the criminal
proceedings do not correspond to the contents of judge M.'s motion.
The Government further address the question of whether the
Koszalin District Court was acting as a court within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention when it decided on the
applicant's dismissal. They submit that in the bankruptcy proceedings
the court, when dismissing the applicant, exercised its discretionary
power with which it was entrusted by the relevant legal provisions.
The court did not act in its judicial capacity in which it is called
upon to rule on civil claims submitted by parties to proceedings. It
is obvious that the court's jurisdiction in the bankruptcy proceedings
is of an administrative character and, as such, includes the
supervision of the acts of a trustee, acting as a public organ. The
Government thus state that the nature of relations between the court
and the trustee in the bankruptcy proceedings must lead to the
conclusion that the court in the proceedings concerned was not
carrying out any judicial functions.
The applicant submits that the court acted pursuant to the
Bankruptcy Act, which entrusts the courts with the handling of
bankruptcy cases. The procedural provisions applicable are those of
a judicial procedure. The applicant concludes that the court was
acting in its judicial capacity.
The Commission considers that this part of the application raises
serious issues of fact and law under the Convention the determination
of which should depend on an examination of the merits. It follows
that this part of the application cannot be dismissed as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other ground for declaring it inadmissible has been
established.
2. The applicant complains under Article 3 (Art. 3) of the
Convention that the allegations contained in the judge's motion for his
dismissal amounted to degrading treatment.
The Commission recalls that according to the case-law of the
Convention organs, ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3 (Art. 3) of the
Convention (Eur. Court HR, Ireland v. United Kingdom judgment of
18 January 1979, Series A No. 25, p. 65, para. 162). In the present
case the treatment complained of consisted in the judge's disparaging
submissions in the motion for the applicant's dismissal from the
function of trustee in bankruptcy. The Commission considers that the
treatment complained of did not reach the threshold of severity
required to bring the matter within the ambit of Article 3 (Art. 3) of
the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant further complains under Article 13 (Art. 13) of the
Convention that he had no effective remedy to complain about his rights
under Article 3 (Art. 3) being breached. However, the case-law of the
Convention organs establishes that Article 13 (Art. 13) does not
require a remedy in domestic law for all claims alleging a breach of
the Convention; the claim must be an arguable one (Eur. Court HR, Boyle
and Rice v. United Kingdom judgment of 27 April 1988, Series A no. 131,
p. 23, para. 52). In the light of the above conclusion concerning the
applicant's complaint under Article 3 (Art. 3) of the Convention, the
Commission finds that the applicant does not have an arguable claim of
a breach of this provision which warrants a remedy under Article 13
(Art. 13). This part of the application must, therefore, also be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
4. The applicant finally complains under Article 13 (Art. 13) of the
Convention that he had no effective remedy as regards his complaint
under Article 6 (Art. 6) of the Convention. The Commission recalls
that where the right claimed is of a civil character the guarantees of
Article 13 (Art. 13) are superseded by those of Article 6 para. 1
(Art. 6-1) (No. 13021/87, Dec. 8.9.88, D.R. 57 p. 268). Therefore no
separate issue arises in connection with this complaint.
For these reasons, the Commission, by a majority,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaint that he was denied access to a court
to challenge his dismissal from the function of manager of
the estate in bankruptcy;
DECLARES INADMISSIBLE the remainder of the application.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy