EHRM, 16-01-2007, nr. 2065/03

The Government first submitted that Article 48 of the Code of Civil Procedure expressly provided that a judge who had already dealt with the merits of a case was excluded ex lege from examining the case in a higher instance.

They further submitted that the concept of an impartial tribunal, understandably, did not allow a judge who had already participated in the examination of the merits of a civil case to review the same case when sitting in a higher court. The legal prohibition on a judge deciding the same case in successive stages of the proceedings, laid down by Article 48 of the Code, should be regarded as a guarantee against the merits of the same case being examined twice by the same person.

However, in the Government's view, this rule should not be interpreted in such a way as to exclude a judge who dealt with the merits of a case from any subsequent judicial involvement in that case whenever only procedural issues were concerned.

They drew the Court's attention to the fact that the cassation appeal to the Supreme Court against a second-instance judgment of a civil court had to be, under the applicable provisions of the Code of Civil Procedure, lodged with the appellate court which had delivered the judgment. It fell to that court to carry out an examination of whether the formal conditions of admissibility of an appeal, provided for by Article 393 ³ of that Code, were met (see paragraph 16 above). These requirements were essentially of a technical character. When a court of appeal found that a cassation appeal complied with these requirements, its only task was to forward it, together with the file, to the Supreme Court. An appellate court, when verifying compliance with formal conditions, was not therefore engaged in any tasks linked to the merits of the judgment under appeal. Its role ceased at the point of assessing the pre-admissibility of the cassation appeal.

In the present case, the Poznań Court of Appeal, in its decision of 22 October 2001, had found that the applicant had failed to present arguments justifying the examination of the cassation appeal. Hence, her appeal failed to satisfy one of the essential conditions prescribed by law.

The Government finally noted that the applicant subsequently appealed against this decision to the Supreme Court, which dismissed her appeal. That court correctly observed that the fact that Judge S.G. had previously taken part in the examination of the merits of the case and had subsequently participated in the examination of the admissibility of the cassation appeal, had been irrelevant. The Government further referred to the Supreme Court's case-law to the effect that it could not be inferred from the provisions of the Code of Civil Procedure that a judge who had taken part in the second-instance proceedings on the merits was to be excluded from the subsequent examination of whether the procedural requirements for a cassation appeal against the judgment on the merits had been complied with.

The applicant submitted that there was a crucial difference between the examination of purely formal requirements for the admissibility of an appeal, such as whether the appeal had been lodged within the time-limit, whether the court fee had been paid, whether it had been signed, etc., and the examination of those substantive aspects of the appeal which fell within the scope of ‘arguments justifying its examination’. The latter type of assessment clearly went beyond purely technical considerations of the appeal. In order to safeguard the impartiality of a court, judges involved in the examination of cases on their merits should not examine appeals against such judgments.

The applicant further stressed the importance of judicial impartiality in a democratic society, as guaranteed by the Polish Constitution and the relevant provisions of the Code of Civil Procedure.

The applicant concluded that in her case the appearance of impartiality had not been preserved in that the same judge had first participated in the examination of the merits of the case and later on declared the appeal against the judgment on the merits inadmissible. Such a situation should not be seen as compatible with the authority and image of the judiciary.

The Court reiterates at the outset that the manner in which the requirements of Article 6 of the Convention apply in relation to appeal proceedings depends on the special features of the proceedings involved. Account must be taken of the entirety of the proceedings conducted in the domestic legal order and the court of cassation's role in them; the nature of those proceedings and their significance in the context of the proceedings as a whole must be considered (see, among other authorities, Brualla Gómez de la Torre v. Spain judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VII, p. 2956, § 37).

The Court further reiterates that it is of fundamental importance in a democratic society that the courts inspire confidence in the public (see the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, § 27). To that end Article 6 requires a tribunal falling within its scope to be impartial. Impartiality normally denotes 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, judgment of 1 October 1982, Series A no. 53, § 30 and Kyprianou v. Cyprus [GC], no. 73797/01, § 118–119, ECHR 2005–…).

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, judgment of 24 May 1989, Series A no. 154, p. 21, § 47). 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, judgment of 23 June 1981, Series A no. 43, p. 25, § 58).

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, judgment of 28 October 1998, Reports 1998-VIII, p. 3116, § 45 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, judgment of 7 August 1996, Reports 1996-III, pp. 951-52, § 58, and Wettstein v. Switzerland, no. 33958/96, § 44, CEDH 2000-XII).

In the present case, the Court observes that Judge S.G. exercised the function of judge rapporteur in the panel of the Poznań Court of Appeal which gave a judgment on the merits of the applicant's claim. Subsequently, he was also the rapporteur in the judicial panel of that same court which carried out an assessment of the admissibility of her cassation appeal against that judgment. Hence, he exercised the function of judge rapporteur in two successive stages of the same proceedings. He was, in addition, the president of the panel deciding on the admissibility of the applicant's appeal.

As regards the subjective test, it has not been shown or argued that Judge S.G. when he participated in the panel which ruled on the admissibility of the applicant's appeal on 22 October 2001, held or manifested any personal convictions such as to cast doubt on his subjective impartiality.

As regards the objective test, the Court is of the view that the requirements of a fair hearing as guaranteed by Article 6 § 1 of the Convention do not automatically prevent the same judge from successively performing different functions within the framework of the same civil case. In particular, it is not prima facie incompatible with the requirements of this provision if the same judge is involved, first, in a decision on the merits of a case and, subsequently, in proceedings in which the admissibility of an appeal against that decision is examined (Eur. Comm. HR, R.M.B. v. the United Kingdom, No. 37120/97, dec. 9 September 1998). 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 in a decision on the merits and the admissibility of an appeal against that decision is so close as to cast doubt on the impartiality of the judge.

Turning to the circumstances of the present case, the Court is of the view that it is crucial for the assessment of the case that a further recourse was available to the applicant against the decision of the Court of Appeal. The applicant availed herself of this possibility and lodged an appeal with the Supreme Court. She challenged the composition of the panel which had examined the admissibility of her cassation appeal in so far as Judge S.G. had participated in it. The Supreme Court examined her objection and concluded that it was unfounded.

Irrespective of the challenge to the composition of the panel, it is further to be stressed that in her appeal the applicant requested the Supreme Court to review whether the decision of the panel had been lawful. Accordingly, the Supreme Court examined the decision of the panel on the admissibility of the applicant's cassation appeal and, like the panel, concluded that it failed to comply with applicable procedural requirements. The Court notes that the applicant has not contested the impartiality of the Supreme Court.

The Court would further observe that the present case is different from the Oberschlick v. Austria case in which a lack of impartiality of a court was found where domestic law prohibited the participation of appeal judges in both the first and the second set of proceedings (Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, § 50). In that connection, the Court emphasises that the issues concerned in the present case have already been addressed by Poland's highest courts.

The Supreme Court was of the view that the examination of the admissibility of a cassation appeal against a judgment of a civil court could not be said to have anything in common with the examination of the merits of the case (see paragraphs 11–13 above).

For its part, the Supreme Administrative Court had regard, inter alia, to the nature of the issues involved in the examination of the admissibility of cassation appeals in administrative proceedings. It was, likewise, of the view that the fact that the same judge gave a judgment on the merits of a case and subsequently participated in the examination of the admissibility of a cassation appeal against such a judgment was in compliance with the provisions of domestic law insofar as it guaranteed the impartiality of a court (see paragraphs 20–21 above).

The Court also notes that the present case differs from the Indra v. Slovakia case. In the latter, the applicant complained that the court which had heard his appeal on points of law was not impartial, because one of the judges of the Supreme Court who had rejected this appeal had previously been on the panel of judges who dismissed his appeal against the first-instance judgment. The Court emphasised the close link between the substantive issues examined by the appellate court and the issues involved in the subsequent examination of the applicant's appeal on points of law. It concluded that the situation complained of could therefore have raised legitimate fears in the applicant that the judge in question would not have approached his case with the requisite impartiality (Indra v. Slovakia, no. 46845/99, 1 February 2005, §§ 51–54).

In the present case, however, the question for determination by the panel was not the same as the question which the Court of Appeal had determined by its judgment of 19 June 2001. On the latter occasion the court was examining the substance of the applicant's appeal against the first-instance judgment on the merits of the case. On the former, the panel had to determine only the admissibility of the applicant's cassation appeal against the second-instance judgment given by that court. In the Court's view, the scope of the examination involved cannot be said to amount to the assessment of the merits of the cassation appeal, which is the exclusive task of the Supreme Court.

Hence, the Court considers that Judge S.G., when participating as the judge rapporteur in the panel deciding on the admissibility of the applicant's appeal, was not called upon to assess and determine whether, for example, the Court of Appeal, sitting as a bench in which he had previously participated in the same capacity, had correctly applied the relevant domestic law to the applicant's case (Stepinska v. France, no. 1814/02, 15 June 2004, mutatis mutandis). There was no such link between substantive issues determined by the judgment on the merits and the admissibility of the cassation appeal which would cast doubt on the impartiality of that judge (see paragraph 40 in fine, above).

Having regard to the circumstances of the case taken as a whole, the Court is of the view that it cannot be said that the applicant's fears as to the impartiality of the Court of Appeal when examining the admissibility of her cassation appeal were objectively justified.

Accordingly, there has been no violation of Article 6 § 1 of the Convention.