European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2011/1357.html
Cite as: [2011] ECHR 1357
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FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
21062/05
by Andrzej GLIŃSKI
against
Poland
The European Court of Human Rights (Fourth Section), sitting on 6 September 2011 as a Chamber composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
George Nicolaou,
Ledi
Bianku,
Vincent A. De Gaetano, judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having regard to the above application lodged on 16 May 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Andrzej Gliński, is a Polish national who was born in 1943, died in 2010 and lived in Kraków. He was represented before the Court by Mr R. Pasternak a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
From 1992, the applicant was the president of the board of directors of a company, Towarzystwo Wspólpracy Regionalnej Sp. z o.o. (Regional Cooperation Society Ltd). As a result of financial problems, the company went into liquidation on 28 January 2002.
In May 2002 the appointed trustee informed the Kraków District Court that the company had been making losses since 1998 and the bankruptcy petition should have been lodged much earlier.
On 20 November 2002 the Commercial Division of the Kraków District Court instituted of its own motion proceedings against the applicant for failure to comply with the insolvency procedure.
The court scheduled a hearing for 14 January 2004. However, the applicant did not participate in this hearing, as on that day and on the next day he appeared before the Warsaw District Court, where his presence was obligatory.
On 14 January 2004 the Kraków District Court gave a decision and barred the applicant from conducting any economic activity on his own account, from performing the functions of a representative or proxy of an entrepreneur, from being a member of the supervisory board and audit commission in a joint stock company, limited liability company or a co operative for a period of four years. In addition it ordered that the applicant be listed in the insolvency register. The court considered that the applicant, acting as the president of the board of Towarzystwo Współpracy Regionalnej Sp. z o.o., had failed to comply with the insolvency procedure and had filed the petition for insolvency too late.
The applicant appealed against this decision.
At a hearing held on 21 April 2004 the Commercial Division of the Kraków Regional Court dismissed his appeal. The court held, in particular, that:
“The evidence gathered by the District Court of its own motion does not demonstrate that the applicant was not guilty of delaying the insolvency petition. In addition he was completely passive in the proceedings before the District Court.”
After pronouncement of the decision, the court informed the applicant’s representative that a cassation appeal was not available.
On 9 June 2004 the applicant’s representative filed a cassation appeal against the second-instance decision. He stressed that he had been aware of the Supreme Court’s case-law about unavailability of a cassation appeal in the proceedings under section 17² of the 1934 Insolvency Act. However, in his opinion, after Poland’s accession to the EU, the Supreme Court should re-examine the issue.
On 6 July 2004 the Kraków Regional Court rejected the cassation appeal as inadmissible in law. The court held that the proceedings had been instituted before 1 October 2003 and therefore the Insolvency Act 1934 applied. As it appeared from the Supreme Court’s case-law, it was not possible to file a cassation appeal against a decision of a second-instance court given pursuant to section 17² of the Insolvency Act.
The applicant appealed against this decision, arguing that the availability of a cassation appeal in the proceedings under section 17² of the Insolvency Act was not clear and emerged from the legal doctrine rather than from a clear provision of law. In addition, a new law on insolvency enacted in 2003 expressly provided for the possibility of filing a cassation appeal in a similar situation.
On 16 November 2004 the Supreme Court dismissed this appeal, upholding the decision of 6 July 2004. The court stressed that the new insolvency law of 28 February 2003 clearly provided that the proceedings instituted before 1 October 2003 should be examined under the 1934 insolvency law. In addition, it held that despite the applicant’s statements the current case-law was very clear about the unavailability of the cassation appeal. This decision was served on the applicant’s representative on 24 January 2005.
B. Relevant domestic law and practice
The Ordinance of the President of the Republic of Poland of 24 October 1934 – The Insolvency Act, as applicable at the material time – set out the rules governing insolvency proceedings. In so far as relevant it provided:
Section 5
Ҥ 1. An entrepreneur who has ceased to pay debts shall present, within no more than fourteen days thereof, a bankruptcy petition to the court.
§ 2. A representative of the entrepreneur referred to under section 1 paragraph 2 shall present a bankruptcy petition within fourteen days from the date when the assets have ceased to suffice to satisfy the debts unless the time-limit referred to under paragraph 1 has already begun to run.
(...).”
Section 17²
Ҥ 1. Any person who has not fulfilled the duty referred to under section 5 paragraph 1 or 2 shall be deprived, for two to five years, of the right to conduct economic activity on his own account and to perform the functions of a representative or proxy of an entrepreneur, member of the supervisory board and audit commission in a joint stock company, limited liability company or co-operative, unless the said person is not guilty thereof.
§ 2. Issues referred to under paragraph l shall be subject to adjudication by the court conducting the proceedings for declaration of bankruptcy.
§ 3. The court shall institute the proceedings of its own motion.
§ 4. The court shall issue the decision on having conducted a trial.
§ 5. The court’s decision on the ban referred to under paragraph 1 shall be subject to appeal.
§ 6. Issues referred to under paragraph l, as regards their scope not regulated under paragraphs 2 to 5 shall be subject to the provisions of the Code of Civil Procedure on non-litigious proceedings.”
On 4 July 2002 the Constitutional Court delivered a judgment and declared that section 17² was in compliance with the Constitution. While the court did not rule on what kind of liability it provided, it noted that section 17² did not provide for a criminal sanction.
On 28 February 2003, the new Law on Insolvency and Restructuring was enacted. The relevant provision is now regulated by section 373. Section 376 of that law expressly provides for the possibility of filing a cassation appeal against a decision of a second-instance court. However, according to the introductory provisions, the new law applied only to proceedings instituted after 1 October 2003.
COMPLAINTS
THE LAW
A. The applicant’s standing
The Court notes at the outset that the applicant died after the communication of his application. Subsequently, his wife Beata Machlowska-Glińska, informed the Court that she wished to pursue the application introduced by her husband.
The Government submitted that the applicant’s wife could not be considered a person entitled to pursue the proceedings before the Court on the applicant’s behalf.
The Court recalls that when an applicant dies during the proceedings, the next-of-kin of the applicant has a legitimate interest to justify the continuation of the examination of the case (see, for example, Lukanov v. Bulgaria, 20 March 1997, Reports of Judgments and Decisions 1997-II, § 35; Fojcik v. Poland, no. 57670/00, § 46, 21 September 2004; X v. France, 31 March 1992, Series A no. 234-C, p. 89, § 26; and Kozimor v. Poland, no. 10816/02, §§ 25-29, 12 April 2007).
Accordingly, the applicant’s wife has the necessary standing to continue the proceedings before the Court in the applicant’s stead.
B. The Government’s preliminary objection
The Government raised a preliminary objection that the applicant’s complaints under Article 6 of the Convention were incompatible with the six-months time-limit.
The Government stressed that the proceedings in the case came to an end when the Commercial Division of the Kraków Regional Court dismissed the applicant’s appeal against the first-instance decision. However, the applicant lodged his application with the Court on 16 May 2005. The Government stressed that the cassation appeal was not an effective remedy in the applicant’s case. The Insolvency Act of 1934 expressly provided for two court instances. In addition, the consistent case-law of the Supreme Court confirmed the unavailability of a cassation appeal in this type of proceedings.
The Government underlined that the applicant’s professional representative had been informed during the appeal hearing that the second instance decision could not have been contested in cassation proceedings. In addition, he had confirmed in his appeal that he was aware of the Supreme Court’s case-law as regards the unavailability of cassation appeals in insolvency proceedings. In sum, the Government invited the Court to reject the application as filed outside the six-months time-limit.
The applicant disagreed with the Government’s submissions. He stressed that a cassation appeal is a normal and effective remedy in the Polish legal system.
The Court notes that, under Article 35 § 1 of the Convention it may only deal with the matter within six months from the date on which the last domestic decision was taken. In this respect the Court reiterates that the six months time-limit imposed by Article 35 § 1 of the Convention requires applicants to lodge their applications within six months of the date of the final decision in the process of exhaustion of domestic remedies. The final decision for this purpose is that taken in the process of exhaustion of effective domestic remedies which exist in respect of the applicant’s complaints (see Devine v. the United Kingdom (dec.) no. 35667/02, 1 February 2005; and Chalkley v. the United Kingdom (dec.), no. 63831/00, 26 September 2002, with further references).
Only remedies which are normal and effective in respect of a Convention complaint are to be taken into account in this connection and an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make applications to authorities which have no power or competence to offer effective redress for the complaint in issue under the Convention (Fernie v. the United Kingdom (dec.), no. 14881/04, decision of 5 January 2006).
Turning to the facts of the present case, the Court observes that the Kraków Regional Court dismissed the applicant’s appeal against the first instance decision on 21 April 2004. On the same date it informed the applicant’s representative that a cassation appeal was not available. Nevertheless, the applicant’s representative filed a cassation appeal, expressly stating that he was aware of the Supreme Court’s case-law as regards unavailability of cassation appeals in this type of proceedings. His cassation appeal was subsequently rejected on 6 July 2004 by the Kraków Regional Court and the decision upheld on 16 November 2004 by the Supreme Court. It follows that a cassation appeal was not available in the applicant’s case. Therefore the Court considers that the six-months time limit should be calculated from the date on which the Kraków Regional Court dismissed the applicant’s appeal against the first-instance decision, that is on 21 April 2004, being the final decision in the applicant’s case (see De Parias Merry v. Spain (dec.), no. 40177/98, 19 October 1999).
It follows that the application is inadmissible for non-compliance with the six-months rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş Aracı Nicolas
Bratza
Deputy Registrar President