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FOURTH
SECTION
CASE OF GAJEWSKI v. POLAND
(Application
no. 27225/05)
JUDGMENT
STRASBOURG
21
December 2010
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 Gajewski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ledi Bianku,
Mihai
Poalelungi,
Vincent A. de Gaetano, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 30 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27225/05) 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 Władysław
Gajewski (“the applicant”), on 15 July 2005.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wolasiewicz of the Ministry for Foreign
Affairs.
- The
applicant alleged, in particular, that the civil proceedings in his
case had been unfair and that his claim had not been heard by an
impartial tribunal.
- On
21 September 2009 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (former Article 29 § 3 of the Convention, now
Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Rudnik.
- On
6 July 1995 the Zamość District Court declared the company
“Wojewódzkie Przedsiębiorstwo Przemysłu
Mięsnego” insolvent and appointed the applicant (a
practising lawyer) as an insolvency trustee. Judge M.B was
appointed as an insolvency judge.
- On
9 August 2000, the court discharged M.B. from his position and
appointed M.S as the new insolvency judge.
- On
6 September 2000 the applicant asked the insolvency judge to
determine the amount of his remuneration.
- At
the hearing held on 9 October 2000 the question of payment of the
applicant’s expenses was examined. The hearing was adjourned
since the court decided to wait for an opinion from an expert
accountant.
- On
11 September 2001 the applicant asked to be granted an advance
payment on his remuneration. The insolvency judge – M.S. –
submitted that the applicant had already been granted an advance
payment of 6,000 Polish zlotys (PLN) and he had already obtained PLN
8,650. In addition, he had obtained, for his alleged expenses, a
total of PLN 45,668.32.
- At
the hearing held on 5 October 2001 the Zamość District
Court sitting as a panel composed of three judges, including judge
M.S., granted the applicant an advance payment of PLN 6,000.
- On
8 April 2002 the applicant applied to the District Court in Zamość
and requested the sum of PLN 577,292 as payment for his eight years
of trustee duties.
- M.S.,
the insolvency judge, in her submissions to the court
(przedstawienie), asked it to grant the applicant remuneration
in a lower amount, namely PLN 317,989. She submitted that the
applicant had been responsible for a lengthy and expensive
liquidation proceedings. She also requested the offsetting of the sum
of PLN 200,600 that had already been paid to the applicant in the
form of advance payments.
- At
the hearing held on 28 September 2004 the court heard evidence from
the applicant. On 30 September 2004 the Zamość District
Court at a session held in camera granted the applicant’s
request in part, and awarded him 317,989. The sum of PLN 266,318.82
already paid to the applicant was offset from the amount. The bench
that gave this decision was composed of three professional judges
including both M.B and M.S.
- On
18 October 2004 the applicant appealed against this decision.
He disagreed with the court’s decision in general terms.
He further argued that the proceedings had been invalid since the
insolvency judge, M.S., had acted both as a claimant and as a member
of the court, which called into question the court’s
impartiality.
- On
5 January 2005 the Lublin Regional Court at a session held in
camera dismissed the applicant’s appeal. The court
considered that the first-instance court had correctly calculated the
trustee’s remuneration, in particular because the applicant was
responsible for delays in the proceedings. It referred to the fact
that the applicant was heard at the hearing held on 28 September 2004
and he was able to present his arguments. In the court’s
opinion, judge M.S. was entitled to sit on the bench of the
commercial court deciding on the applicant’s remuneration,
given that the Insolvency Act did not provide for any limitations in
this respect.
- The
applicant filed a cassation appeal with the Supreme Court.
- On
3 March 2005 the Lublin Regional Court rejected his cassation appeal
as inadmissible in law.
- On
16 March 2005 the applicant appealed against this decision. On 14
September 2005 the Supreme Court dismissed his appeal confirming that
a second-instance court’s decision on trustee’s
remuneration could not be the subject of an appeal.
- Meanwhile,
on 10 February 2005 the applicant asked to be paid further partial
remuneration in the amount of PLN 66,945 for the period between 7
June 2003 and 6 February 2005.
- On
20 December 2005 the Zamość District Court held a hearing
in that case. The panel of judges was composed of three professional
judges, including judge M.S. The applicant challenged judge M.S. In
reply, on 24 March 2006 the Lublin Regional Court ordered judge
M.S. to withdraw from the panel. The court noted that the insolvency
judge, who had already made her submission regarding the applicant’s
remuneration, would have pre-conceived notions about the issues in
the case.
- On
27 April 2006 the Zamość District Court granted the
applicant partial remuneration in the amount of PLN 22,000.
- On
9 October 2007 the Zamość District Court declared the
liquidation procedure to be terminated.
II. 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.
- Under
section 8 of the Insolvency Act, proceedings relating to an
insolvency petition were to be instituted before the District
Commercial Court, sitting as a bench of three professional judges, in
whose jurisdiction the insolvent debtor had its registered office.
- Under
section 67 § 4 the insolvency judge was not to be on the bench
of the court that heard a complaint against a decision given by that
judge.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the proceedings were unfair, the judges had
been biased and his claim had not been heard by an impartial
tribunal. He invoked Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
- The
Government contested that argument.
A. Admissibility
- The
Government firstly submitted that the applicant had failed to exhaust
the available domestic remedies. They argued that in the proceedings
concerning the applicant’s claim for remuneration, he had
failed to lodge a motion to challenge the judges from the Commercial
Section of the Zamość District Court. The applicant had
complained that the judges had been biased and in particular judge
M.S. had acted both as a claimant and as a member of the court.
However, he had never requested the removal of judge M.S. from the
court’s panel dealing with his case.
- The
Government further stressed that as it had been proved by subsequent
proceedings for remuneration (instituted on 10 February 2005) there
had been an effective and accessible legal way to challenge the
insolvency judge. They referred to the fact that on 24 March 2006 the
Lublin Regional Court admitted that the participation of an
insolvency judge in the court’s panel could have resulted in
the fact that the judge would not be free from preconceived ideas.
- The
applicant replied that judge M.S.’s submission (przedstawienie)
had been filed with the court after 28 September 2004 and he had not
been aware of it. Since the decision was given on 30 September 2004
at a session held in camera he had no real opportunity to
comment on M.S.’s submission. He had further no
possibility to challenge her, since he had not been aware of the
composition of the panel. The applicant argued that in the subsequent
proceedings for remuneration, the situation had been different since
the insolvency judge M.S. had submitted her opinion to the court
before the hearing held on 20 December 2005. Accordingly, at the
moment when she had been nominated to sit in the panel he had become
aware that she would be deciding in her own case and accordingly he
could challenge her.
- The purpose of Article 35 § 1, which sets out the
rule on exhaustion of domestic remedies, 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, among other authorities, Selmouni v.
France [GC], no. 25803/94, § 74, ECHR 1999-V). The
Court observes that Article 35 § 1 must be applied with some
degree of flexibility and without excessive formalism. The rule
of exhaustion of
domestic remedies contained in that provision requires that normal
recourse should be had by an applicant to remedies which are
available and sufficient to afford redress in respect of the breaches
alleged. (see, among other authorities,
Akdivar and Others v. Turkey,
judgment of 16 September 1996, Reports
of Judgments and Decisions
1996-IV, § 65).
- In
so far as the Government rely on the possibility of challenging the
judges of the Commercial Section of the Zamość District
Court, the Court observes that the applicant was not aware
that judge M.S. had earlier filed her submission with the court. He
had therefore no possibility to respond and could not have
effectively challenged her.
- Consequently,
the Government’s objection should be dismissed.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 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.
- The
Government agreed that the judge M.S. had sat as a member of the
Zamość District Court when the applicant’s request of
15 June 2004 was examined. They further confirmed that in the course
of the proceedings judge M.S. had filed with the court her submission
under section 122 § 1 of the Insolvency Act in which she
presented her own calculation of the amount due to the applicant.
However, the Government stressed that unlike in the case of Werner v.
Poland (see, Werner v. Poland, no. 26760/95, 15 November
2001) in the present case the applicant had a possibility to appeal
against the first instance’s decision. In addition, the
applicant’s request for partial remuneration was examined in
the so-called incidental procedure (postepowanie wpadkowe). In
such a procedure, the court only assessed in a preliminary way the
trustees’ future remuneration, to which he would be entitled
after termination of the liquidation proceedings.
- The
Government further stressed that the applicant made use of the
possibility to appeal to a second-instance court. His appeal was
subsequently examined by a panel of three professional judges of the
Lublin Regional Court, none of who could have been considered
partial.
- They
concluded that the applicant’s right to a fair hearing was not
violated. Even if the participation of judge M.S. was not compatible
with the guarantees of Article 6 of the Convention, the appellate
procedure before the Lublin Regional Court “made reparation”
for that breach.
- The
applicant replied that his appeal against the decision of
30 September 2004 had been examined by the Lublin Regional Court
at a session held in camera. Therefore he could not have
effectively presented his case. In his opinion the appellate
procedure had not remedied the lack of impartiality of the
first-instance court.
2. The Court’s assessment
- The
Court recalls that there are two tests for assessing whether a
tribunal is impartial within the meaning of Article 6 § 1: the
first consists in seeking to determine the personal conviction of a
particular judge in a given case and the second in ascertaining
whether the judge offered guarantees sufficient to exclude any
legitimate doubt in this respect (see, among other authorities, the
Gautrin and Others v. France judgment of 20 May 1998, Reports
1998-III, pp. 1030-1031, § 58).
- As
regards the subjective test, the Court first notes that the personal
impartiality of a judge must be presumed until there is proof to the
contrary (Wettstein v. Switzerland, no. 33958/96, § 43,
ECHR 2000-XII). In the instant case, the Court is not convinced that
there are sufficient elements to establish that any personal bias was
shown by judge M.S., when she sat as a member of the Zamość
District Court when the applicant’s request of 15 June
2004 for his partial remuneration was heard.
- As
regards the objective test, the Court observes that in the present
case the criteria applicable for this test overlap with those which
are relevant for the subjective test, as it is the stand taken by the
insolvency judge which is examined in both tests.
- It
is true that the mere fact that a judge had already taken pre-trial
decisions cannot by itself be regarded as justifying concerns about
his or her impartiality. What matters is the scope and nature of the
measures taken by the judge before the trial (see, Werner
cited above § 43). However, in the present case the same issue,
i.e. the amount of the applicant’s remuneration, was addressed
by the judge in her motion and later by the court in its decision. In
her submissions filed under section 122 § 1 of the Insolvency
Act, judge M.S. had presented her own calculation of the amount due
to the applicant which in her view should have been substantially
lower.
- In
this respect the Court notes that in the second set of the
proceedings the Lublin Regional Court confirmed that an insolvency
judge who had already made a submission as regards for example the
amount of the applicant’s remuneration would not be free from a
“prior attitude towards the case” (see, paragraph 21
above).
- Consequently,
the fact that the judge who submitted to the court a motion
concerning calculation of the applicant’s remuneration could be
regarded as giving objective grounds for believing that the court
deciding on this motion lacked impartiality.
- The
Court must now determine whether the Regional Court made reparation
for the violation of the applicant’s
right to an impartial tribunal (see De
Cubber v. Belgium, 26 October 1984,
§ 33, Series A no. 86).
- The
Government submitted that, even if the participation of the
insolvency judge on the panel of the Zamość District Court
was not compatible with Article 6 of the Convention, this procedural
defect had been rectified since the relevant appeal procedure
provided him with the necessary guarantees (see, paragraph 33 above).
- In
this respect the Court observes that the applicant raised the issue
of the alleged lack of impartiality in his appeal against the first
instance decision (see, paragraph 15 above). It further observes
that, despite the fact that the Lublin Regional Court had all the
powers to remedy the situation, it had failed to do so and the
procedural defect had not been rectified (see, Dorozhko and
Pozhaskiy v. Estonia, nos.
14659/04 and 16855/04, § 58, 24 April 2008).
- In
the light of the above, the Court considers that there had been a
violation of Article 6 § 1 of the Convention on the grounds of
the lack of impartiality of the tribunal that determined the
applicant’s claim.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 200,000 Polish zlotys (PLN) in respect of pecuniary
damage and PLN 75,000 non-pecuniary damage.
- The
Government contested this claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 3,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant did not make any claims for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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 3,000 (three thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Polish zlotys at the rate
applicable at the date of settlement;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
