FOURTH SECTION
CASE OF
TOZICZKA v. POLAND
(Application no.
29995/08)
JUDGMENT
STRASBOURG
24 July 2012
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 Toziczka v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
David ThórBjörgvinsson, President,
LechGarlicki,
PäiviHirvelä,
GeorgeNicolaou,
ZdravkaKalaydjieva,
NebojšaVučinić,
Vincent A.De Gaetano, judges,
andFatoş Aracı, Deputy Section
Registrar,
Having deliberated in private on 3 July 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
29995/08) 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, Ms Bożenna Toziczka (“the
applicant”), on 2 June 2008.
The applicant was represented by Mr A. Sieradzki,
a lawyer practising in Kępa. The Polish Government (“the Government”) were
represented by their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
The applicant alleged, in particular, that her
civil case had not been determined by an impartial court.
On 26 September 2011the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Civil proceedings concerning compulsory sale
The applicant was born in 1943 and lives in Opole.
“Zgoda” Housing Cooperative in Brzeg brought a
civil case against the applicant before the Opole Regional Court. It sought a
judgment obliging her to sell to the co-operative a number of plots of land
which had been de facto occupied by the co-operative for a long period
of time.
By a judgment of 16 June 2003 the Opole Regional Court dismissed the claim. It held that the applicable provisions of the
Housing Co‑operatives Act provided for an obligatory sale of land
occupiedde facto by housing co-operatives only where a co-operative had
erected buildings thereon. In the present case, the plaintiff co-operative had
built roads and parking areas on the land concerned.
The plaintiff co‑operative appealed.
By a judgment of 26 November 2003 the Wrocław
Court of Appeal allowed the appeal, quashed the first-instance judgment and
remitted the case. It was of the view that the first-instance court had erred
in the application of section 35 of the Co-operatives Act. It had wrongly held
that an obligatory sale could be ordered to the benefit of a housing
co-operative only with respect to land owned by third parties on which a
co-operative had had houses built.The court was of the opinion that such a sale
could also be ordered when a co-operative had built infrastructuresother than
houses.
Judge D.Z. sat on the bench of the Supreme Court
as judge rapporteur.
The applicant’s case was subsequently examined
again. The Opole Regional Court allowed the plaintiff’s claim and ordered the
applicant to sell 2,000 sq. metres of land to the co-operative.It found that
the plaintiff co-operative had built a housing estate in the vicinity of the
applicant’s land and also partly on her land. Parking areas and roads had been
built on the land belonging to the applicant.Section 35 of the Housing
Co-operatives Act provided for the compulsory sale of privately owned land
occupied de factoby co-operatives.
The applicant appealed. She argued that the
court had erred in applying the substantive law in her case. Section 35 of the
Housing Co‑operatives Actprovided for a claim for compulsory sale only
where co‑operatives had built houses on privately owned land. The legal
interpretation of this provision by the court breached the principle that
exceptions had to be interpreted narrowly.She further argued that the judgment
ordering her to sell her land was in breach of Article 1 of
Protocol No. 1 to the Convention.
On 14 March 2007 the Wrocław Court of
Appeal dismissed the appeal, endorsing the legal view expressed in the judgment
of 26 November 2003.
The applicant lodged a cassation appeal against
this judgment with the Supreme Court. She reiterated the same argument which
she had already raised in her appeal and emphasised that the courts had
erroneously interpreted substantive law in her case.She submitted that
section 35 of the Housing Co-operatives Act allowed for a compulsory sale
of privately owned land only where a co-operative had built houses on it. The
court had erred in that it held that this provision should, by analogy, also be
applied to roads, parking areas and similar infrastructure. This interpretation
resulted from the functional interpretation of this provision according to
which its purpose was to make it possible for housing co-operatives to acquire
ownership of land owned by third parties. Thus, the courts had held that it
would be inconsistent with that object and purpose to allow a claim for a
compulsory sale order against the owner only with respect to the land on which
houses had been built. The applicant argued that this approach, which
disregarded the literal and clear text of the provision concerned and resorted
instead to a functional interpretation, was unlawful.
She also invoked Article 1 of Protocol No. 1 to
the Convention and submitted that her property rights had been excessively and
unlawfully restricted by the compulsory sale order.
The cassation appeal was examined by the Supreme
Court sitting in camera on 18 January 2008. Judge D.Z. (see paragraph 10
above), who had in the meantime been promoted to the Supreme Court, sat on the
bench. The court was of the view that the gist of the cassation appeal
concerned the interpretation of section 35 of the Housing Co-operatives Act and
that the case turned on the interpretation to be given to this provision.It
agreed with the legal view expressed on both occasions by the Wrocław
Court of Appealand dismissed the applicant’s cassation appeal.
B. Civil proceedings concerning use of the applicant’s
land by the electricity company
By a judgment of 1 February 2007 the Opole Regional Court awarded the applicant compensation in the amount of PLN 388,000 for the
use of her land by the local energy company which had in the past built
installations (a pipeline) on her land. The company appealed.
By a judgment of25 April 2007 the Wrocław
Court of Appeal quashed the first-instance judgment and dismissed the
applicant’s claim.
The applicant lodged a cassation appeal with the
Supreme Court, complaining that the electricity company had been using her
property for years without paying any compensation.
By a decision of 14 December 2007, served on the
applicant’s lawyer on 14 March 2008, the Supreme Court refused to accept her
cassation appeal for examination.
II. RELEVANT DOMESTIC LAW
Article 3983 of the Code of Civil
Procedure lists the grounds on which a cassation appeal (skarga kasacyjna)
can be lodged. It reads, in so far as relevant, as follows:
“1. 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 401 of the Code of Civil Procedure
provides that a request for re-opening of civil proceedings can be based on
invalidity of proceedings caused, inter alia,by an improper composition of the
court or on the participation of a judge who was disqualified by law from
sitting on the bench.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant complained that her first civil
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
The Government submitted that the applicant had
not exhausted domestic remedies. She should have lodged a petition to have the
proceedings re-opened, 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 her cassation appeal had lacked impartiality
because of his earlier involvement in the examination of the merits of her
case, such a petition should be considered as an adequate remedy. The applicant
could not have requested that judge’s withdrawal earlier than after the Supreme
Court’s judgment had been given essentially because she had learned that he sat
on the bench of that court only after she had been served with its final
judgment of 18 January 2008.
The applicant disagreed.
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). 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 Lakatos v. Czech Republic
(dec.), no. 42052/98, 23 October 2001).
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, Orchowski
v. Poland, no. 17885/04, § 105, 22 October
2009; Norbert
Sikorski v. Poland, no. 17599/05,
§ 108, 22 October 2009). The development and 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 (Mikolajová v. Slovakia, no. 4479/03, § 34, 18 January 2011).A Government’s
arguments clearly carry more weight if relevant examples from national case‑law
are provided(Sakhnovskiy
v. Russia [GC], §§ 43‑44).
Turning to the circumstances of the present
case, the Court notes that the decision in the applicant’s case became 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 re-opening 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). Moreover, 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 petitions to re‑open
civil proceedings which had already come to an end 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. It has not therefore been shown that in the circumstances
of the case the remedy relied on by the Government offered any prospects of
success.
The Court accordingly finds that the Government
have failed to show, with reference to demonstrably established case-law in
cases similar to the applicant’s, that the petition for re-opening of the civil
proceedings was sufficiently certain not only in theory but also in practice.
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
The applicantsubmitted that her case had not
been determined by an impartial court.
She argued that in the circumstances of the case the
involvement of Judge D.Z. in the examination of the merits of her cassation
appeal, taken together with the fact that, as a judge rapporteur of the court
of appeal, he had previously expressed a legal view which was subsequently
followed by the first- and second-instance court, meant that the Supreme Court
lacked impartiality.
The Government abstained from making submissions
on the merits of that complaint.
1. General principles
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)).
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). 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).
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). 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).
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, and Wettstein v. Switzerland,
no. 33958/96, § 44, ECHR 2000‑XII).
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
v. Poland, no. 2065/03, § 40, 16 January 2007, mutatis
mutandis; Indra v. Slovakia, no. 46845/99, § 51054, 1
February 2005).
2. Application of the above principles to the present
case
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, D.Z., who had
previously examined the merits of the applicant’s appeal, 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.
However, the Court has to decide whether those
doubts were objectively justified. The answer to this question depends on the
circumstances of the case.
As in the case of Indra v. Slovakia, cited above,
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 appeals against the first-instance judgments given in the case and
subsequently by the Supreme Court.
The Court observes that on 26 November 2003 the
Wrocław Court of Appeal quashed the first-instance judgment.It found that
the first-instance court had erred in the application of the substantive law.
It was of the view that the first-instance court had wrongly held that under
section 35 of the Housing Co-operatives Act an obligatory sale could be
ordered only with respect to plots of land owned by third parties on which a
housing co‑operative had had houses built. It expressed the opinion that
a compulsory sale could be ordered also in respect of roads and other
constructions.Subsequently, both the first- and second-instance judgments in
the casefollowed the interpretationgiven by the Court of Appeal.
The applicant lodged a cassation appeal against
the second-instance judgment given by the Wrocław Court of Appeal on
14 March 2007. She argued that that judgment was flawed because of a
substantive law error. She submitted that section 35 of the Housing
Co-operatives Act allowed for the compulsory sale of privately owned land only
where a co-operative had built houses on it.The courts had erred in law in
holding that this provision could, by analogy, be applied also to roads,
parking areas and similar infrastructure.The applicant argued that this
approach, which disregarded the literal and clear text of that provision and
resorted instead to a functional interpretation, was unlawful.
The Court notes that the task of the Supreme
Court was to examine whether the lower courts had correctly interpreted
applicable substantive law (see paragraph 21 above).In its judgment of
18 January 2008 that court opined that the gist of the applicant’s
cassation appeal concerned the interpretation of section 35 of the Housing
Co-operatives Act.It shared the view on the meaning to be given to this provision
expressed on both occasions by the Wrocław Court of Appeal.Consequently,
it dismissed the applicant’s cassation appeal.
The Court observes that Judge D.Z. sat on the
panel of the Supreme Court.The Supreme
Court was called upon todetermine whether the judgment by which the
Wrocław Court of Appeal had followed the legal view previously expressed
bythe judgment of that court in which Judge D.Z. sat as judge rapporteur. The
Court is of the opinion that this legal view was decisive for the outcome of
the case and the Supreme Court acknowledged it in its judgment (see paragraph
16 above). Thus, the same judge sitting on the bench of the Supreme Court was
called upon to decide whether or not his legal interpretation or application of
substantive law made in the previous decision given in the same case was to be
upheld or not.
The Court is of the view that this situation is
akin to that in the case of San Leonard Band Club v. Malta,
no. 77562/01, §§ 63‑64, ECHR 2004‑IX, where the same
judges had been called upon to decide whether or not they themselves had
committed an error of legal interpretation or application.
These circumstances are sufficient to hold that
the applicant’s fears as to the lack of impartiality of the Supreme Court can
be considered to be objectively justified.
There has accordingly been a breach of
Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1OF THE
CONVENTION
The applicant further complained under Article 6
of the Convention that the judgments given in her civil cases had been
erroneous, that the courts had wrongly applied substantive law and that, as a
result, her rights had been breached. She further argued that the courts had
committed errors in the assessment of evidence and that their reasoning had
been illogical and contradictory.
The Court reiterates that, while Article 6
of the Convention guarantees the right to a fair hearing, it does not lay down
any rules on the admissibility of evidence or the way in which it should be
assessed, which are therefore primarily matters for regulation by national law
and the national courts (seeSchenk v. Switzerland,
12 July 1988, §§ 45-46, Series A no. 140, and García
Ruiz v. Spain [GC], no. 30544/96, ECHR 1999-I, § 28).
It follows that this part of the application is
manifestly ill‑founded and must be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant further relied on Article
1 of Protocol No. 1 to the Convention and submitted that as a result of the
judgment given in both cases her ownership rights had been significantly and
unlawfully restricted.
The Court observes that Article 1 of Protocol
No. 1 does not concern the regulation of civil law rights between parties under
private law. In the instant case, therefore, the courts’ decisions against the
applicant, according to the rules of private law, cannot be seen as an
unjustified State interference with the property rights of the losing party.
Indeed, it is the very function of the courts to determine such disputes, the
regulation of which falls within the province of domestic law and outside the
scope of the Convention (see, Eur. Comm. HR, Kuchar
and Stis v. Czech Republic (dec.), no. 37527/97, 21
October 1998; mutatis
mutandis, see also S.Ö.,
A.K., Ar.K. and Y.S.P.E.H.V. v. Turkey (dec.),
no. 31138/96, 14 September 1999;Trela v. Poland (dec.),
no. 28853/02, 6 February 2007; Garzičić v. Montenegro,
no. 17931/07, § 37, 21 September
2010).
Therefore, this complaint is incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 35 § 3 (a) and must be rejected in accordance with
Article 35 § 4 thereof.
IV. 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 150,000 euros
(EUR) in respect ofpecuniary damage and 50,000 euros in
respect of non‑pecuniary damage.
The Government contested these claims.
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 3,300under this head.
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.
B. Costs and expenses
The applicant also claimed 39,723 Polish zlotys
(PLN) for the costs and expenses incurred before the domestic courts. This
amount was broken down as follows: PLN 6,600 in legal fees and
PLN 33,123 in judicial costs which she had been obliged to pay under the
judgments given in her civil case.
The Government contested the applicant’s claims.
The Court observes that for an award to be made
it has to be satisfied that the costs and expenses were actually incurred, were
necessarily incurred and were also reasonable as to quantum (see, among other
authorities, Zimmermann and Steiner v. Switzerland, 13 July
1983, § 36, Series A no. 66). The Court observes that the applicant
did not submit any invoices in respect of the legal fees. On the other had,
having regard to the documents in its possession, the Court is satisfied that
the judicial costs had actually been incurred. It therefore awards the
applicant EUR 7,540 in this respect.
C. Default interest
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 applicationpartly admissible
as regards the issue of impartiality and inadmissible as to the remainder;
2. Holdsthat 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 monthsfrom the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the
following amounts, to be converted intothe currency of the respondent Stateat
the rate applicable at the date of settlement:
(i) EUR 3,300 (three thousand
three hundred euros), plus any tax that may be chargeable,in respect of non-pecuniary
damage;
(ii) EUR 7,540 (seven
thousand five hundred and forty euros), plus any tax that may be chargeable, in
respect ofcosts and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts 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 24 July 2012,
pursuant to Rule77§§2 and3 of the Rules of Court.
Fatoş Aracı David
Thór Bjorgvinsson
Deputy Registrar President
