AS TO THE ADMISSIBILITY OF
by Mariola WNUK
The European Court of Human Rights (Fourth Section), sitting on 1 September 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 15 October 2005,
Having deliberated, decides as follows:
The applicant, Ms Mariola Wnuk, is a Polish national who was born in 1977 and lives in Trzebnica.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant lodged with the Wrocław Regional Court an action for payment against the State Insurance Company (“PZU”).
On 8 October 1999 the Regional Court partly allowed the applicant’s claim. She appealed.
On 29 March 2000 the Wrocław Court of Appeal slightly increased the amount awarded to the applicant.
The applicant lodged a cassation appeal with the Supreme Court, alleging, inter alia, erroneous assessment of evidence and application of incorrect criteria by the lower courts in respect of the value of her claim.
On 8 May 2002 the Supreme Court refused to entertain the cassation appeal. It relied on a provision of the newly amended Code of Civil Procedure (which entered into force on 1 July 2000) allowing it to leave without examination manifestly ill-founded appeals or appeals in cases where no serious legal issue arises.
The decision was taken by a single judge sitting in camera. The written reasons provided as follows:
According to Article 393 of the Code of Civil Procedure, when the challenged judicial decision does not manifestly breach the law or the proceedings are not invalid in law (§ 2), the Supreme Court may refuse to entertain a cassation appeal if there is no appearance of a significant legal issue in the case, there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law or the cassation appeal is manifestly ill-founded (§ 1). (...)
In the present case none of the circumstances set out in Article 393 § 2 was present and consequently the Supreme Court, having considered the grounds set out in § 1, found it justified to refuse to entertain the cassation appeal.
On 11 October 2002 the applicant lodged a constitutional complaint with the Constitutional Court, alleging, inter alia, a breach of her right of access to court and to a fair hearing on account of the retrospective application of new Article 393 of the Code of Civil Procedure to cassation appeals lodged before its entry into force.
On 31 March 2005 the Constitutional Court delivered judgment no. SK 26/02, having joined several complaints, including the applicant’s complaint, in the same proceedings (see domestic law below).
B. Relevant domestic law and practice
Relevant provisions concerning a cassation appeal
A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a second instance court. A party had to be represented by an advocate or a legal adviser.
Article 3931 of the Code of Civil Procedure as applicable at that 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 3933 specified the requirements of a cassation appeal. It read in its relevant part:
“§ 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.”
Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find non-conformity with the law, it dismissed the cassation appeal.
Pursuant to Article 3937 a cassation appeal, in principle, was examined during a hearing by a panel of three judges; the court could, however, reject a cassation appeal on formal grounds at a sitting. The judgment or decision had to be accompanied by written reasons.
On 24 May 2000 a law was enacted amending the Code of Civil Procedure. It entered into force on 1 July 2000. It introduced, inter alia, the following provision (amended Article 393) – the so-called “pre-judgment” (preliminary assessment of a cassation appeal):
“§ 1. The Supreme Court may refuse to entertain the cassation appeal, if:
1) there is no appearance of any significant legal issue in the case,
2) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law,
3) the appeal is manifestly ill-founded.
§ 2. Paragraph 1 shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law.”
Pursuant to amended Article 3937 the decision to refuse to entertain a cassation appeal or to reject it on formal grounds could be taken in camera in a single judge formation.
Although the legal provisions did not expressly provide for such a possibility, usually the written reasons accompanying such decisions were limited to a simplified, schematic formula which did not contain any legal analysis, did not indicate the specific grounds for the decision, did not invoke grounds of appeal and did not refer to any facts or circumstances which would allow the identification of a particular case.
On 6 February 2005 new provisions on a “cassation complaint” came into effect, replacing the provisions governing the cassation appeal.
The Constitutional Court’s judgment of 31 March 2005 (SK 26/02)
In its judgment of 31 March 2005 (SK 26/02) the Constitutional Court examined a number of constitutional complaints challenging the provisions of Article 393 of the Code of Civil Procedure.
The Constitutional Court held that although the Constitution did not guarantee a right to cassation as such, the fact that it was provided for by the Code of Civil Procedure meant that it had to meet the requirements of the rule of law and procedural justice.
The Constitutional Court observed, inter alia, that certain terms describing the conditions which a cassation appeal had to meet under Articles 393 et seq. of the Code (“significant legal issue”, “provisions raising serious doubts or causing discrepancies in the courts’ case-law”, “arguments showing that examination of the cassation appeal would be justified”) were drafted in the broadest terms. It noted that the judicial practice regarding their application had given rise to serious interpretational difficulties and discrepancies in the case law of the Supreme Court. The Constitutional Court considered the relevant requirements of Article 393 and their interpretation by the Supreme Court to be vague and subjective and, in practice, known exclusively to the Supreme Court but not to those who wished to lodge a cassation appeal.
According to the Constitutional Court, if the conditions for admissibility of a claim (preliminary assessment of a cassation appeal) were formulated in imprecise terms, the right of access to a court could not be exercised effectively because of the risk of arbitrariness of the assessing body.
In this context the court criticised, in particular, the practice of “simplified reasons”. It held that the use of open-ended concepts by the legislator could not be considered, in itself, as unconstitutional, as it allowed the courts a certain flexibility, to better tailor their decisions to circumstances at hand. However, in such case the obligation to substantiate the legal norm was shifted to the stage of its application. This gave the courts a certain discretion which was not to be confused with an absolute freedom from external supervision. Consequently, a general and imprecise procedural clause required a strong justification and indication of specific circumstances.
The practice of formulaic justification in the preliminary assessment of a cassation appeal created a situation where nobody could identify how, if at all, the Supreme Court had performed the necessary assessment to substantiate those vague terms. The case-law providing guidance on their application was thus practically non-existent. The court informed the addressee of its decision that the requirements of the given article had not been met, but did not indicate any circumstances which justified this conclusion. As a result, a principle of trust has been breached. Moreover, it was impossible for lawyers in general to recognise the Supreme Court’s understanding of those requirements for the purpose of effectively lodging a cassation appeal in the future.
Consequently, the “pre-judgment” did not guarantee procedural predictability to the party, who has lodged a cassation appeal meeting all formal requirements. The right of access to a court had thus been transformed into a pretence of this right.
Nevertheless the Constitutional Court found that it was the practice of the Supreme Court that deserved disapproval and not the relevant provisions, and the wording of those provisions could not be considered unconstitutional. In this context the court observed that the practice was not uniform and certain chambers of the Supreme Court justified their decisions in a much more elaborate and substantive way. The court further observed that the challenged provisions had already ceased to exist prior to the delivery of the present judgment.
Accordingly, the Constitutional Court refused to decide on the compatibility of those provisions with the Constitution and discontinued the proceedings in this respect.
The individual constitutional complaint
Article 79 § 1 of the Constitution, which entered into force on 17 October 1997, provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
Article 190 of the Constitution, insofar as relevant, provides as follows:
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ...
4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”
“1. The Court shall, at a sitting in camera, discontinue the proceedings:
1) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible;
2) in consequence of the withdrawal of the application, question of law or constitutional complaint;
3) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the Tribunal.
2. If these circumstances come to light at the hearing, the Tribunal shall take a decision to discontinue the proceedings.
3. Item 1 (3) of the present Article does not apply if giving a decision on the compatibility with the Constitution of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights.”
Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution. Such a request can be lodged with the competent court within one month from the date of the judgment of the Constitutional Court.
The applicant complained invoking Articles 6, 13, 17 and 18 of the Convention that she was deprived of the right to a fair hearing before the Supreme Court. She alleged that the Supreme Court had refused, arbitrarily, to entertain her cassation appeal, providing only formulaic reasoning for the decision based on procedural provisions which had entered into force after she had lodged her appeal.
Article 6 § 1 of the Convention provides, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
a) The applicant complained that the Supreme Court’s decision was issued on the basis of procedural provisions which had entered into force after she had lodged her cassation appeal.
The Court recalls that it has already examined similar complaints and rejected them as being manifestly ill-founded (see, Zmaliński v. Poland (dec.), no. 52039/99, 16 October 2001 and, more recently, Międzyzakładowa Spółdzielnia Mieszkaniowa Warszawscy Budowlani v. Poland (dec.), no. 13990/04, 26 October 2004). It sees no reason to reach a different conclusion in the present case. It follows that the complaint under Article 6 § 1 as regards the right of access to a court is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
b) Insofar as it can be understood that the applicant complains about the lack of access to a court by reason of the Supreme Court refusal to admit her appeal, the Court recalls that the right to a court, embodied in Article 6 of the Convention, is not absolute and may be subject to limitations. However, the limitations applied cannot restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see, inter alia, Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 44, ECHR 2001-VIII).
Article 6 of the Convention “does not ... compel the Contracting States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6” (Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, p. 14, § 25). In addition, the compatibility of the limitations permitted under domestic law with the right of access to a court set forth in Article 6 § 1 of the Convention depends on the special features of the proceedings in issue, and it is necessary to take into account the whole of the trial conducted according to the rules of the domestic legal system and the role played in that trial by the highest court, since the conditions of admissibility of an appeal on points of law may be more rigorous than those for an ordinary appeal (Delcourt, cited above, p. 15, § 26). It is for the Contracting States to decide how they should comply with the obligations arising under the Convention. The Court must satisfy itself that the method chosen by the domestic authorities in a particular case is compatible with the Convention.
The Court first observes that the applicant’s case was examined on the merits by two judicial instances with full jurisdiction as to the facts and law. It is also to be noted that the assessment of whether the applicant’s cassation appeal warranted examination involved an examination of the grounds of appeal. The Supreme Court refused to entertain it, having ascertained that the appeal did not raise any serious legal issue or was manifestly ill founded.
The Court) further observes that the applicant’s right of access to a court was subject to certain limitations in so far as her cassation appeal was not fully examined on the merits by the Supreme Court. The Court recalls, however, that it had already found that that there was “a reasonable relationship of proportionality” between the means employed and the aim of accelerating cassation proceedings by excluding the examination of appeals in cases of lesser importance (see Zmaliński v. Poland, (dec.) no. 52039/99, 10 October 2001).
In view of the above considerations, it cannot be maintained that the very essence of the applicant’s right to a court was impaired.
For these reasons the Court rejects the complaint under Article 6 § 1 of the Convention as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4.
c) The applicant also complained about lack of sufficient reasoning in the Supreme Court’s decision, which amplified the impression that the decision had been arbitrary. She invoked the judgment of the Constitutional Court, which had found the practice to be in breach of the right of access to a court.
The Court recalls that its task is not to examine whether the applicant should have been granted leave to appeal. This question is primarily a matter for regulation by national law and it is, in principle, for the national courts to assess the grounds for granting leave to appeal. The Court’s task is to ascertain whether the proceedings as a whole were fair.
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;).
Where a Supreme Court refuses to accept a case on the basis that the legal grounds for such a case are not made out, very limited reasoning may satisfy the requirements of Article 6 of the Convention. This principle extends to the Supreme Court’s decisions on applications for leave to appeal (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).
Lastly, the Court observes that, as regards the preliminary procedure for the examination and admission of appeals on points of law, it 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 an appeal on points of law as having no prospects of success, without further explanation (see Salé v. France, no. 39765/04, § 17, 21 March 2006, and Burg and Others v. France (dec.), no. 34763/02, ECHR 2003-II; Gorou v. Greece (no. 2) [GC], no. 12686/03, § 41, 20 March 2009).
The Court does not exclude, that in the circumstances of a particular case a Supreme Court may be required to give more adequate reasons for its judgments (see Yanakiev v. Bulgaria, no. 40476/98, § 72, 10 August 2006; Gheorghe v. Romania, no. 19215/04, § 50, ECHR 2007 ... (extracts); Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 96, ECHR 2007 ... (extracts); Grădinar v. Moldova, no. 7170/02, § 115, 8 April 2008; Velted-98 AD v. Bulgaria, no. 15239/02, § 48, 11 December 2008). However, the Court considers that, in the present case, it was not necessary for the Supreme Court to give more detailed reasons for its decision.
The Court notes that in its judgment of 31 March 2005 the Constitutional Court criticised the Supreme Court’s practice of “simplified reasons”. Nevertheless, the Constitutional Court considered that a ruling allowing the applicant to undertake further legal action was not required. The Court would observe, however, that the Convention sets minimum standards of fundamental rights protection, allowing for national “margins of appreciation” in respect of several of its rights and freedoms and that under Article 53 of Convention nothing limits or derogates from the High Contracting Parties right to ensure a higher level of protection.
It follows that, in the absence of any appearance of arbitrariness, these complaints must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
Therefore, and having regard to its earlier conclusion on the applicant’s access to court complaint, the Court finds this complaint manifestly ill founded and rejects it, in accordance with Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President