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WARSICKA v. POLAND - 2065/03 [2007] ECHR 44 (16 January 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/44.html
Cite as:
[2007] ECHR 44
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FOURTH
SECTION
CASE OF WARSICKA v. POLAND
(Application
no. 2065/03)
JUDGMENT
STRASBOURG
16 January
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:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr M. Pellonpää,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J.
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
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.
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.
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
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.
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.
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.
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.
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
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
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.”
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”.
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.
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
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.
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.”
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.”
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 (...).”
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.”
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
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.
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
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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).
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 ...).
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).
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).
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.
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.
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.
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.
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).
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).
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.
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).
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.
Accordingly,
there has been no violation of Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
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. Early Nicolas Bratza
Registrar President
