KORZENIAK v. POLAND - 56134/08 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2017] ECHR 8 (10 January 2017)

In the case of Korzeniak v. Poland,

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

          András Sajó, President,
          Nona Tsotsoria,
          Paulo Pinto de Albuquerque,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Gabriele Kucsko-Stadlmayer,
          Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 8 November 2016,

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

PROCEDURE

1. The case originated in an application (no. 56134/08) 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 a Polish national, Mr Stanisław Korzeniak (“the applicant”), on 31 October 2008.

2. The Polish Government (“the Government”) were represented by their Agents, Mr J. Wołąsiewicz, and subsequently by Ms J. Chrzanowska, both of the Ministry of Foreign Affairs.

3. The applicant alleged, in particular, that his civil case had not been determined by an impartial tribunal.

4. On 24 August 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1953 and lives in Krosno.

6. From 29 April 1997 to 29 April 1999 he was employed by a Polish company which was carrying out construction work in Germany. The Polish workers were employed on the basis of the international agreement signed on 31 January 1990 between Poland and Germany on the secondment of workers of Polish companies to carry out construction work (Umowa między Rządem Rzeczypospolitej Polskiej a Rządem Republiki Federalnej Niemiec o oddelegowaniu pracowników polskich przedsiębiorstw do realizacji umów o dzieło z 31 stycznia 1990 r., Dz.U. 1994, Nr 98, Poz. 474). The rates of the applicant’s pay were determined by an employment contract and the regulations which the contract referred to.

7. On 16 July 1999 the applicant lodged a civil claim against his former employer for payment. He claimed that, instead of the rate of 8 or 8,5 German Marks (DEM) per hour which he had been receiving under his employment contract in the period from 29 April 1997 to 29 April 1999, he should have been receiving a higher rate of pay. Relying on the provisions of the above-mentioned international agreement, he claimed that he should have been receiving a rate comparable to that of the German workers occupying the same positions.

8. On 19 June 2000 the Opole Regional Court gave a partial judgment in which it established that the applicant was entitled to the rates of pay fixed in the employment contract.

The court observed that the essential issue in the case was whether the applicant was entitled to a higher rate of pay, equivalent to that paid to the German employees working in similar positions at the material time. It was noted in this connection that the parties had not chosen to regulate the employment contract under German law. Instead Polish labour law was applicable.

In so far as the applicant relied on the provisions of the international agreement of 1990 (see paragraph 6 above) and argued that it should serve as the basis for setting his rate of pay, the court observed that this agreement was of a public-law character. Its object and purpose was to regulate relations between Poland and Germany in the construction market with a view to preventing unfair competition by Polish companies setting wages of construction workers working in Germany at too low a level, and to protect Polish workers against being paid too low a rate.

9. The applicant appealed. He argued that the Opole Regional Court had violated the provisions of the Labour Code. In the applicant’s opinion, the court’s finding that the applicant’s rates of pay were fixed in his employment contract was erroneous, because that contract did not contain any rates (only symbols which were not understood by the applicant). Besides, in his view, the court had violated the provisions of the above-mentioned international agreement, according to which the rates of the applicant’s pay should be comparable to those received by the German workers occupying the same positions.

10. On 15 November 2000 the Court of Appeal quashed the first-instance partial judgment on account of its procedural shortcomings and remitted the case to the lower court. The Court of Appeal comprised three judges. Judge H.Sz. sat on the bench. He was not a judge rapporteur and he did not preside.

11. The Court of Appeal found that in the applicant’s case there were no grounds for delivering a partial judgment. It noted that a partial judgment could be delivered only when a part or some of the claims in a lawsuit had been sufficiently clarified for the decision. In the applicant’s case there was only one claim and thus there had been no grounds for delivering the partial judgment.

In the final part of the written grounds for the judgment the Court of Appeal stated that the position of the Opole Regional Court as to the substance of the case was supported by the wording of the international agreements and existing domestic case-law. This part of the court’s reasoning read as follows:

“As to the substantive grounds for the court’s legal view expressed in the judgment under appeal, it should be stated that it finds support in the content of the Agreement between the Governments of the Republic of Poland and the Federal Republic of Germany on the secondment of workers of Polish companies to carry out construction work (Journal of Laws 1998/84, items 474 and 475) as well as in the hitherto interpretation of this agreement in judicial decisions (see, e.g., III A Pa 29/00 Wrocław Court of Appeal, decision of 31 May 2000).”

12. On 10 December 2002 the applicant challenged one of the judges, alleging his partiality. He further requested that the case be transferred to another town because, in his view, the judges were not impartial and the defendant company “had enjoyed considerable influence in Opole.”

13. On 20 March 2003 the Wrocław Court of Appeal dismissed the applicant’s request.

14. On 5 April 2003 the applicant appealed.

15. On 16 January 2004 the Supreme Court dismissed the applicant’s appeal, finding no grounds for the judges of the Opole Regional Court to step down.

16. On 24 May 2004 the Opole Regional Court gave judgment granting the applicant’s claim in part and dismissing the remainder. The Regional Court ordered the defendant company to pay the applicant the sum of 11,934 Polish zlotys (PLN) for unused leave. As to the rate of the applicant’s pay, the court reiterated the reasoning of the judgment of 19 June 2000 and dismissed the claim (see paragraph 8 above).

17. The applicant appealed.

18. On 25 November 2004 the Wrocław Court of Appeal dismissed the appeal. The court accepted the reasoning of the first-instance court.

19. On 20 January 2005 the applicant’s lawyer lodged a cassation appeal on his behalf.

20. On 29 November 2005 the Supreme Court examined the cassation appeal, quashed the challenged judgment and remitted the case to the Court of Appeal.

21. The Supreme Court considered that the Polish-German agreement of 1990 was not a source of universally binding law and did not contain provisions applicable to labour relations. The agreement could not be regarded as constituting the legal basis for claims of employees concerning remuneration for their work. Moreover, Poland’s accession to the European Union did not have an impact on the applicability of that agreement. Furthermore, the European Union law did not apply retroactively to situations predating Poland’s accession.

The fact that employees’ claims concerning the applicable minimum wages could not be regarded as having their legal basis in the said Polish-German agreement did not mean, in the court’s opinion, that those claims could not be raised upon the basis of employment contracts. In the Supreme Court’s view, the Court of Appeal had not sufficiently clarified the meaning of those contracts in the light of statements made by the Polish company concerning the applicant’s employment conditions and the obligations imposed on the company by the provisions of German law to which those statements referred.

22. On 8 December 2006 the Wrocław Court of Appeal, having taken into account the recommendations of the Supreme Court, again dismissed the applicant’s appeal lodged against the Regional Court’s judgment of 24 May 2004. The court reiterated that the applicant was entitled to the rates of pay fixed in his employment contract.

23. On 28 March 2007 the applicant lodged a further cassation appeal with the Supreme Court.

He first raised substantive arguments. He averred that the Opole Regional Court had disregarded the provisions of the Labour Code. In the applicant’s opinion, the court’s finding that his hourly rate of pay had been fixed in his employment contract had been erroneous, because that contract had not contained any rates (only symbols which the applicant had not been able to understand). Besides, in his view, the court had disregarded the provisions of the applicable international agreement (see paragraphs 6 and 8 above), according to which the applicant’s rate of pay should have been comparable to that received by the German workers occupying the same positions.

He further complained that the appellate court had failed to take heed of the interpretation of the applicable law expressed by the Supreme Court in its previous judgment as to the applicable rate of the applicant’s salary.

It was further argued that the court had failed to take into consideration the evidence gathered in the case. The court had also erred when refusing to allow certain requests for evidence to be taken.

The applicant further complained that in the written grounds for its judgment the Court of Appeal had failed to provide reasons for which it had disregarded the interpretation of relevant applicable provisions made in the past by the Supreme Court - a substantive question which had been crucial for the outcome of the case.

24. On 14 May 2008 the Supreme Court, sitting as a bench of three judges, dismissed the applicant’s cassation appeal.

Judge H.Sz., who had sat on the bench of the Court of Appeal deciding the case on 15 November 2000, had in the meantime been promoted to the Supreme Court. He sat on the bench of the Supreme Court. He was not a judge rapporteur and he did not preside.

The Supreme Court noted that the appellate court, contrary to the applicant’s objection, had followed the interpretation of the applicable law expressed by the earlier judgment of the Supreme Court (pronounced on 29 November 2005) given in the same case. In this judgment the Supreme Court had confirmed that the international agreement referred to by the applicant could not be regarded as a legal source of employees’ and employers’ rights and obligations. The appellate court’s decision had followed this view and it had confirmed that the substantive provisions of that agreement had not applied to the setting of the applicant’s rate of pay, which had been fixed by his employment contract.

25. The Supreme Court stressed that in his cassation appeal the applicant raised the same complaint which had already been made in his earlier cassation appeal. This was inadmissible as under section 398²⁰ of the Code of Civil Procedure (see paragraph 33 below) it was not allowed to found a cassation appeal against a judgment rendered after a new examination of a case upon complaints contrary to the interpretation previously established by the Supreme Court dealing with the earlier cassation appeal lodged in the same case.

26. Additionally, the Supreme Court noted that the interpretation made by the lower courts of the applicant’s contract of employment, seen as a whole, had taken into account the applicant’s employer’s declarations submitted to the German authorities and also a wealth of other evidence in so far as it had been relevant for the determination of the applicant’s working conditions and remuneration.

27. The Supreme Court further observed that the applicant’s remuneration had been set at the level of the minimal remuneration of German employees performing similar work determined on the basis of the Law on Collective Bargaining.

28. In so far as the applicant complained in his cassation appeal of the alleged failure of the courts to take further evidence and of the assessment of the evidence they had carried out, those complaints could not be examined in the context of those proceedings. It was not the task of the Supreme Court in cassation proceedings to act as an ordinary court of appeal and to examine issues concerning the admissibility and assessment of evidence and the factual findings made by the lower courts.

II. RELEVANT DOMESTIC LAW AND PRACTICE

29. Pursuant to Article 48 § 1 of the Polish Code of Civil Procedure (“the Code”), a judge is to be withdrawn from a case by law if he or she has participated in giving a judgment at a lower level of jurisdiction.

30. Under Article 401 of the Code, a party who cannot seek the exclusion of a judge may lodge an application to have the proceedings reopened on account of their invalidity where a judge who should have been withdrawn as a matter of law did actually sit as a member of the court.

31. The Supreme Court decision of 19 September 2013 (I CSK 688/12) reads in its relevant part:

“A judge is disqualified by operation of law from sitting on a bench in order to prevent a situation where he or she would review his or her own decision made in the same case by the lower level of jurisdiction”.

32. The Supreme Court decision of 19 February 2014 (V CSK 189/13) states, inter alia, that:

“The expression “to participate in giving a judgment at a lower level of jurisdiction” within the meaning of Article 48 § 1 point 5 of the Polish Code of Civil Procedure means that the judge sat on the bench that issued a judgment. “Participation in giving a judgment” does not relate to undertaking various procedural activities that precede issuing a judgment”.

33. Pursuant to section 398²⁰of the Code of Civil Procedure a court dealing with a case after the Supreme Court allowed a cassation appeal and set aside a second-instance judgment is bound by legal interpretation of provisions relevant to the case carried out by the Supreme Court. A cassation appeal against a judgment given after a re-examination of the case following a successful cassation appeal cannot be based on a complaint that the courts followed the interpretation made by the Supreme Court.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE IMPARTIALITY OF THE SUPREME COURT

34. The applicant complained that his case had not been determined by an impartial court as provided in Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

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

A. Admissibility

35. The Government submitted that the applicant had not exhausted domestic remedies. He should have lodged an application to have the proceedings reopened, alleging the invalidity of the proceedings, in accordance with Article 401 of the Code of Civil Procedure. In the circumstances of the present case, where the applicant claimed that the judge who sat on the bench examining his cassation appeal had lacked impartiality because of his earlier involvement in the appellate proceedings, such an application should be considered as an adequate remedy. The applicant could not have requested the judge’s withdrawal earlier than after the Supreme Court’s judgment had been given, essentially because he had only learned that he sat on the bench of that court after he had been served with its final judgment of 14 May 2008.

36. The applicant disagreed. He argued that in his situation an application for reopening of the proceedings would not have offered reasonable prospects of success.

37. The Court reiterates that Article 35 § 1 of the Convention requires that the only remedies to be exhausted are those that are available and sufficient to afford redress in respect of the breaches alleged. The purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, inter alia, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, and Karácsony and Others v. Hungary [GC], no. 42461/13, § 76, ECHR 2016 (extracts)). The rule in Article 35 § 1 is based on the assumption that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (see Sejdovic v. Italy [GC], no. 56581/00, § 43, ECHR 2006-II).

38. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV, and Orchowski v. Poland, no. 17885/04, § 105, 22 October 2009). The availability of a remedy said to exist, including its scope and application, must be clearly set out and confirmed or complemented by practice or case-law (see Mikolajova v. Slovakia, no. 4479/03, § 34, 18 January 2011). It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time (Gherghina v. Romania (dec.) [GC], no. 42219/07, § 88, 9 July 2015).

39. Turning to the circumstances of the present case, the Court notes that the decision in the applicant’s case had become res iudicata on the strength of the judgment of the Supreme Court. In such circumstances, the applicant’s recourse to the Supreme Court by way of a request for reopening was an extraordinary remedy. Normally applicants are not required to avail themselves of such an extraordinary remedy for the purposes of the exhaustion rule under Article 35 § 1 (see Kiiskinen v. Finland (dec.), no. 26323/95, ECHR 1999-V, and Assanidze v. Georgia [GC], no. 71503/01, § 127, ECHR 2004-II).

40. The Court notes that the Government failed to support their argument by referring to any examples of domestic case-law showing that the courts had allowed applications to re-open civil proceedings on account of successive involvement of the same judge, first in the appellate proceedings and subsequently, after that judge’s promotion, in the examination of the merits of the cassation appeal. Furthermore, the Court observes that it has already rejected the Government’s objection of non-exhaustion of domestic remedies based on a failure to apply for re-opening of proceedings in respect of a complaint about alleged lack of impartiality on the part of the judge of the Supreme Court in such circumstances (see, Toziczka v. Poland, no. 29995/08, § 27, 24 July 2012). In the absence of arguments to the contrary submitted by the Government in the present case, the Court sees no grounds on which to depart from this approach. Therefore the objection concerning non-exhaustion of domestic remedies is dismissed.

41. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

42. The applicant submitted that his case had not been determined by an impartial court.

43. He argued that in the circumstances of the case the involvement of Judge H.Sz. in the examination of the merits of his cassation appeal, taken together with the fact that he had previously been involved in the appellate proceedings, meant that the Supreme Court lacked impartiality.

44. The Government submitted that the subject-matter of examination before both courts in which Judge H.Sz. was sitting on the bench varied. On 15 November 2000 the Wrocław Court of Appeal had examined the partial judgment of the Opole Regional Court of 19 June 2000 and subsequently quashed it because of its procedural shortcomings, while the Supreme Court in 2008 had considered the merits of the applicant’s case when deciding on his cassation appeal against the judgment of the Wrocław Court of Appeal of 8 December 2006.

45. The Government maintained that the link between the substantive issues that were the subject of the judgment of Wrocław Court of Appeal of 25 November 2000 and, subsequently, the Supreme Court’s judgment of 14 May 2008 was not close enough to raise any doubts as to the impartiality of Judge H.Sz.

2. The Court’s assessment

(a) General principles

46. The Court reiterates at the outset that it is of fundamental importance in a democratic society that the courts inspire confidence in the public. To that end, Article 6 requires a tribunal falling within its scope to be impartial. Impartiality normally denotes the 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, 1 October 1982, § 30, Series A no. 53, and Grieves v. the United Kingdom [GC], no. 57067/00, § 69, ECHR 2003-XII (extracts)).

47. 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, 24 May 1989, § 47, Series A no. 154, and Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005-XIII). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill-will or has arranged to have a case assigned to himself for personal reasons (see De Cubber v. Belgium, 26 October 1984, § 25, Series A no. 86). 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, 23 June 1981, § 58, Series A no. 43, and Morice v. France [GC], no. 29369/10, § 74, ECHR 2015).

48. Although in some cases it may be difficult to procure evidence with which to rebut the presumption, it must be remembered that the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996-III, and Micallef v. Malta [GC], no. 17056/06, § 95, ECHR 2009). In other words, the Court has recognised the difficulty of establishing a breach of Article 6 on account of subjective partiality and for this reason has, in the vast majority of cases raising impartiality issues, focused on the objective test. However, there is no watertight division between the two notions, since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (the objective test) but may also go to the issue of his or her personal conviction (the subjective test).

49. 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, 28 October 1998, § 45, Reports 1998-VIII, 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, 7 August 1996, § 58, Reports 1996-III, Wettstein v. Switzerland, no. 33958/96, § 44, ECHR 2000-XII, Warsicka v. Poland, no. 2065/03, § 37, 16 January 2007 and Micallef, quoted above, §§ 96-98).

50. 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 at various stages of the proceedings is so close as to cast doubt on the impartiality of the judge participating in the decision-making at these stages (see Warsicka, § 40, cited above, and Toziczka, cited above, § 36).

(b) Application of the above principles to the present case

51. Turning to the circumstances of the present case, the Court observes that the applicant’s concerns regarding the Supreme Court’s impartiality originated in the fact that the same judge, H.Sz., who was previously involved in the appellate proceedings, sat on its bench. It can be accepted that this situation could raise doubts in the applicant’s mind about the impartiality of that court.

52. However, the Court has to decide whether those doubts were objectively justified. The answer to this question depends on the circumstances of the case.

53. As in the case of Indra v. Slovakia, (no. 46845/99, § 53, 1 February 2005), the Court considers it appropriate to examine whether there was a close link between the issues examined by the Wrocław Court of Appeal dealing with the appeal against the first-instance judgments given in the case and subsequently by the Supreme Court.

54. The Court observes that on 15 November 2000 the Wrocław Court of Appeal quashed the first-instance judgment and remitted the case to the lower court. Even if the remittal was due to the procedural shortcomings (the Court of Appeal found that in the applicant’s case there were no grounds for issuing a partial judgment), in the final part of the decision the Court of Appeal stated that, as to the merits of the case, the position of the Opole Regional Court on the substance of the case in its decision of 19 June 2000 had been well-founded.

55. The Wrocław Court of Appeal confirmed therefore the conclusion of the first-instance court that the applicant was entitled to the rate of pay fixed in his employment contract and that the provisions of the international agreement could not serve as a basis for the setting of that rate. The conclusion was couched in general terms; not as pertaining to the case under consideration or specifically to the applicant’s case. This legal assessment of the issues involved in the case was subsequently confirmed in the second set of proceedings, on 24 May 2004 by the Opole Regional Court and on 25 November 2004 by the Wrocław Court of Appeal. Subsequently, after remittal of the case by the Supreme Court, it was also reiterated in the third set of proceedings, on 8 December 2006 by the Wrocław Court of Appeal and on 14 May 2008 by the Supreme Court.

56. The Court notes that, in consequence, in the decision of 14 May 2008 the Supreme Court had to examine whether the lower courts had correctly applied substantive law. In fact, the Supreme Court was invited by the plaintiff to decide, inter alia, whether the rates of the applicant’s pay had been fixed in his employment contract or whether they had to be determined on the basis of the provisions of the above-mentioned international agreement. In its decision of 15 November 2000 the Wrocław Court of Appeal expressed a view on an aspect of this legal issue.

57. The Court therefore concludes that there was a link between the significant elements examined by the Wrocław Court of Appeal dealing with the appeal against the first-instance judgments given in the case and subsequently by the Supreme Court.

58. The Court is of the view that this situation is to some extent similar to those it examined in the cases of San Leonard Band Club v. Malta, no. 77562/01, §§ 63-64, ECHR 2004-IX, and of Toziczka, cited above, §§ 40-43, where the same judges had been called upon to decide whether or not they themselves had committed an error of legal interpretation or application.

59. These circumstances are sufficient to hold that the applicant’s concerns as to the lack of impartiality of the Supreme Court can be considered to be objectively justified.

60. There has accordingly been a breach of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE LENGTH OF THE PROCEEDINGS

61. The applicant further complained under Article 6 of the Convention of the excessive length of the proceedings in which he was involved.

62. The Court notes that the complaint is inadmissible for non-exhaustion of domestic remedies. The applicant did not make use of the remedy provided for in the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki).

63. It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

64. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

65. The applicant claimed 50,000 euros (EUR) in respect of pecuniary damage and EUR 500,000 in respect of non-pecuniary damage.

66. The Government contested these claims and submitted that they were excessive.

67. The Court does not discern any causal link between the violation of Article 6 and any financial loss which the applicant might have suffered. Thus, there is no need to award compensation for pecuniary damage.

68. The Court accepts that the applicant suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 3,300 under this head.

B. Costs and expenses

69. As the applicant did not make a claim for costs and expenses, the Court does not make an award under this head.

C. Default interest

70. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY

1. Declares the complaint concerning the alleged lack of impartiality of the Supreme Court admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,300 (three thousand three hundred euros), to be converted into the currency of the respondent State, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 10 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Andràs Sajó
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge K. Wojtyczek is annexed to this judgment.

A.S.
M.T.

CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I agree with the outcome in the instant case but I am unable to follow the reasoning. The case concerns a fundamental issue of procedural fairness, namely whether a judge who took cognizance of a case at a certain stage of civil judicial proceedings can sit on the bench in the same case at a subsequent stage of those proceedings. In my view, this case reveals the weaknesses of the approach adopted to date and demonstrates the need to revisit it.

2. Human-rights issues of procedural law are especially difficult because the applicable provisions of the Convention are very general and vague, whereas procedural law is not only highly complex but varies considerably from one State to another. In such a context, devising universal standards of procedural fairness for the purpose of assessing very different national judicial procedures is a perilous exercise.

The reasoning, which tries to follow the case-law of the Court, formulates the following test in paragraph 50:

“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 at various stages of the proceedings is so close as to cast doubt on the impartiality of the judge participating in the decision-making at these stages (see Warsicka, § 40, cited above, and Toziczka, cited above, § 36).”

This test has to be placed in the broader context of the established case-law, according to which the fact that a judge took part in examining a case at an earlier stage of proceedings does not mean that he is always prevented from examining the same case at a subsequent stage of proceedings (see, for instance, the judgment in the case of Ringeisen v. Austria, 16 July 1971, § 97 in fine, Series A no. 13; case of Mežnarić v. Croatia, no. 71615/01, § 33, 15 July 2005). It follows from this premise that the mere fact that substantive issues determined at various stages of the proceedings are part of the same case does not mean that the link between them is necessarily so close as to cast doubt on the impartiality of the judge participating in the decision-making at these stages. In other words: the mere co-existence of substantive issues forming complementary aspects of the same case is not sufficient; it is necessary to establish a closer link than this.

3. In the instant case it is important to clarify a few points of domestic law. The cassation appeal in Polish civil procedure is an extraordinary remedy lodged against a final judgment in a civil case. A cassation appeal lodged by a party may be based upon the following grievances:

(1) a violation of substantive law, through its incorrect interpretation or application;

(2) a violation of procedural law which might have had a substantial impact on the outcome of the case (Article 398³ of the Code of Civil Procedure).

The Supreme Court may entertain a cassation appeal only if one of the following conditions is fulfilled:

(1) there is an important legal issue at stake in the case;

(2) there is a need to give interpretation of legal provisions raising serious [interpretative] doubts or causing inconsistencies in the case-law in the courts;

(3) the procedure is void;

(4) the cassation appeal is manifestly founded (Article 398⁹ § 1 of the Code of Civil Procedure).

The procedure for the examination of cassation appeals is designed to protect public interests and not only the private interests of the relevant party. Examination of the cassation appeal goes beyond the scope of the issues under consideration in the previous stages of the procedure and involves certain new questions, such the existence of inconsistencies in the case-law. At the same time, the examination of the case is limited to specific issues of law and the cassation appeal cannot be based upon questions of facts or assessment. Nonetheless, when determining legal issues the Supreme Court has to take into account the individual circumstances of the case. In this context, there is a dispute among Polish lawyers as to whether the case as examined by the lower courts and the case as examined by the Supreme Court upon cassation appeal is one and the same case (see, for instance, the resolution of the Supreme Court of 5 June 2008, III CZP 142/07 and the separate opinions attached to it). Under the case-law of the European Court of Human Rights, for the purpose of the Convention the examination of a cassation appeal seems to be considered as a stage in the examination of the same case (see, for instance, the judgment in the case of Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 51-53, ECHR 2015).

Article 398²⁰of the Code of Civil Procedure stipulates:

“A court to which the case was remitted [after the Supreme Court allowed a cassation appeal and set aside a second-instance judgment] is bound by the interpretation of law carried out in this case by the Supreme Court. A cassation appeal against a judgment given after a re-examination of the case following a cassation appeal cannot be based on a grievance formulated contrary to the interpretation of law carried out in this case by the Supreme Court.”

I note that the application of this provision in certain cases may be a matter of subjective assessments as to whether a lower court correctly followed the view expressed by the Supreme Court.

4. The reasoning in the present judgment contains a number of inaccuracies. Firstly, paragraph 54 states as follows:

“Even if the remittal was due to the procedural shortcomings (the Court of Appeal found that in the applicant’s case there were no grounds for issuing a partial judgment), in the final part of the decision the Court of Appeal stated that, as to the merits of the case, the position of the Opole Regional Court on the substance of the case in its decision of 19 June 2000 had been well-founded.”

This statement is not accurate. The Court of Appeal never stated in its judgment of 15 November 2000 that the position of the Opole Regional Court on the substance of the case in its decision of 19 June 2000 had been well-founded. It addressed only one crucial issue concerning the substance of the case, completely refraining from addressing other substantive issues or making a global assessment concerning the Opole Regional Court’s position on the substance of the case. When addressing the crucial issue at stake it implicitly approved the view expressed by the Regional Court on this specific issue, stating that this view “finds support in the content of the Agreement between the Governments of the Republic of Poland and the Federal Republic of Germany on the secondment of workers of Polish companies to carry out construction work (Journal of Laws 1998/84, items 474 and 475) as well as in the hitherto interpretation of this agreement in judicial decisions (see, e.g., III A Pa 29/00 Wrocław Court of Appeal, decision of 31 May 2000)”. (see paragraph 11 of the judgment).

I note that the scope of this statement and the view expressed in the Court of Appeal’s judgment were a restatement of well-established case-law on the issue of the direct applicability of the Agreement between the Governments of the Republic of Poland and the Federal Republic of Germany. This is a very general statement concerning the content of applicable law, which might already have been expressed by the same judges in similar cases.

It is necessary to add that, in the instant case, the issue of the applicability of the Agreement between the Governments of the Republic of Poland and the Federal Republic of Germany was addressed at a subsequent stage of the proceedings by the Supreme Court in its judgment of 29 November 2005, which examined the cassation appeal and remitted the case, and subsequently in the judgment delivered by the Wrocław Court of Appeal on 8 December 2006. This is the final determination of the legal issue in question.

It is true that the applicant lodged a second cassation appeal, which was examined by the Supreme Court and dismissed on 14 May 2008. It is important to stress two points in this respect. Firstly, as mentioned above, the cassation appeal is a specific extraordinary remedy in the Polish civil procedure. Secondly, the Supreme Court, referring to Article 398²⁰ of the Code of Civil Procedure (quoted above), refrained from taking a new position on the issue of the applicability of the treaty, as this question has already been settled earlier.

5. Secondly, the reasoning states further (in paragraph 56):

“The Court notes that, in consequence, in the decision of 14 May 2008 the Supreme Court had to examine whether the lower courts had correctly applied substantive law”.

This is not fully accurate, as the Supreme Court did not have the power to examine whether the lower courts had correctly applied substantive law in general, but could only address certain grievances concerning the application of substantive law insofar as the legal issues in question had not been addressed in the Supreme Court’s judgment of 29 November 2005 (see Article 398²⁰ of the Code of Civil Procedure, quoted above).

6. Thirdly, the reasoning goes further in paragraph 57:

“The Court therefore concludes that there was a link between the significant elements examined by the Wrocław Court of Appeal dealing with the appeal against the first-instance judgments given in the case and subsequently by the Supreme Court”.

This statement triggers at least three objections. Primo, the test applied is whether a link exists; it is then necessary to identify correctly the judicial decisions that were reached with the participation of the same judge. The crucial question is not whether there was a link between the significant elements examined by the Wrocław Court of Appeal dealing with the appeal against the first-instance judgments in the case and subsequently by the Supreme Court, but whether there was a link between the significant elements examined by the Wrocław Court of Appeal in its judgment of 15 November 2000 dealing with the appeal against the first-instance judgment in the case and the judgment of the Supreme Court of 14 May 2008 examining the second cassation appeal.

Secundo, it is necessary to identify the specific issues which were determined at the two stages. These issues were referred to very generally as the substance of the case and whether the lower courts had correctly applied substantive law, which is a qualification lacking the necessary precision.

Tertio, the two judicial decisions deal with different legal issues of the substantive law that is applicable in the instant case. There is no doubt that there is a certain link between the elements dealt with in the two judicial decisions, in that the issues under consideration are different aspects of the same case. On the other hand, the link is remote, since in its decision of 14 May 2008 the Supreme Court merely stated that at this stage of the proceedings it was legally prevented from reconsidering the issue referred to by the Wrocław Court of Appeal in its judgment of 15 November 2000.

7. Fourthly, paragraph 58 of the judgment states:

“The Court is of the view that this situation is to some extent similar to those it examined in the cases of San Leonard Band Club v. Malta, no. 77562/01, §§ 63-64, ECHR 2004-IX, and of Toziczka, cited above, §§ 40 43, where the same judges had been called upon to decide whether or not they themselves had committed an error of legal interpretation or application.”

There is no doubt that there are certain similarities with the above-mentioned cases, but their nature has not been explained in the reasoning. There is, however, also an important difference: in the instant case the same judges did not have to decide whether or not they themselves had committed an error of legal interpretation or application.

8. To sum up: the crucial criterion applied in the reasoning is the existence of a link between the significant elements examined by the same judge at two different stages of the proceedings. In the instant case the judgment of the Wrocław Court of Appeal of 15 November 2000 determined procedural issues and contained a brief obiter dictum concerning a general point of law, established in the case-law. The decision of the Supreme Court of 14 May 2008 determined different legal issues. A link between the substantive issues actually determined in each judicial decision seems rather remote. Thus, the application of the test formulated in paragraph 50 should have led to the finding of no violation of Article 6 of the Convention in the instant case.

9. The case-by-case approach developed in the Court’s case-law undermines legal certainty and, where there has been a violation of the Convention, delays the final examination of the case at domestic level. In many cases it is difficult for the domestic courts and the parties to the proceedings to predict from the outset where the approach developed by the Court will lead. Through such detrimental effects, the test adopted diminishes the effectiveness of the guarantees of Article 6. In my assessment, the test currently applied requires revision. Instead of a case-by-case consideration, it would be preferable to adopt a more principle-based approach.

In so far as possible, a case should be examined by judges who hold no pre-judged views on it. The purpose of an appeal or a cassation appeal is to examine the entire case, or certain aspects of the case, with a “fresh eye” free of predetermined views. This requirement must distinguish between the two premises of the legal syllogism: the major premise (general rules of law) and the minor premise (the individual facts of the case). It is impossible to avoid a judge examining a case without predetermined views on the content of the general rules of law to be applied in a specific case. He must know the law (iura novit curia) and he might have applied the same general rules in a number of similar cases, stating his views about their precise content. New important issues of legal interpretation appear in only a limited number of cases, mainly in the so-called “hard cases”. The fact that a judge has already interpreted a specific provision in earlier cases and expressed views as to their correct interpretation in previous cases should not raise doubts as to his impartiality; on the contrary, it may be seen as a factor reinforcing his impartiality. On the other hand, it is true that in judicial application of the law the content of the general rules of law is determined for the purpose adjudicating in the individual factual circumstances of a given case. The content of a general legal rule achieves its final substantiation in the context of specific cases.

When a judge examines a case, be it at first or higher instance, he necessarily takes cognizance of the entire case, with all its factual and legal elements, whatever the scope of the judgment he will subsequently render. The issue of which questions were explicitly addressed by the court is not relevant. A judge necessarily forms certain views, not only about the issues he specifically determines, but also about other issues that he does not have to determine at the specific stage of the proceedings. What matters is the fact that the same case was examined twice by the same judge at different stages of the proceedings. The decisive criteria are the identity of the case and the distinctiveness of the stages in the proceedings.

The identity of the case means that the same judge twice takes a decision concerning or affecting the merits of the same case, i.e. the same legal dispute with the same claims between the same parties. In such a situation there is necessarily a sufficient link between the different elements under consideration at the different stages of the procedure because they are important elements of the same case. This sole fact is a sufficient basis to find a violation of Article 6 of the Convention.

The situation is different if the case is no longer identical at a subsequent stage or if the decisions rendered within the framework of a procedure in the same case concern different issues, such as pre-trial detention and the merits of a criminal case (see, for instance, Hauschildt v. Denmark, application no. 10486/83, § 51). In such situations, it is necessary to look at the links between the issues under consideration.

Furthermore, the other criterion is the distinctiveness of the stages of the proceedings: a judge should not examine the same case at different stages of the proceedings. If certain procedural developments may be regarded as a mere continuation of previous steps so that all of them can be considered as belonging to the same procedural stage, then the questions under consideration do not arise. This may be the case if a party lodges an opposition to a judgment delivered in absentia. The subsequent procedure may be regarded as a second part of the same procedural stage (compare, for instance, the judgment of 10 June 1996 in the case of Thomann v. Switzerland, Reports of Judgments and Decisions 1996-III).

I am aware that the approach proposed here is far from perfect and may raise substantive objections. In any event, in the specific circumstances of the present case there should be no doubt that the approach developed to date is highly problematic.

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You are here: BAILII >> Databases >> European Court of Human Rights >> KORZENIAK v. POLAND - 56134/08 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2017] ECHR 8 (10 January 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/8.html Cite as: ECLI:CE:ECHR:2017:0110JUD005613408, [2017] ECHR 8, CE:ECHR:2017:0110JUD005613408