PROCEDURE

The case originated in an application (no. 2065/03) 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 Ms Barbara Warsicka.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The applicant was represented by Mr J. Hajduk, a lawyer practising in Zielona Góra.

On 26 September 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant, the owner of real property which she had been renting, filed a civil action for damages against the tenant. On 4 September 2000 her action was dismissed by a judgment of the Zielona Góra Regional Court. The applicant appealed against the judgment. On 19 June 2001 her appeal was dismissed by a judgment of the Poznań Court of Appeal. Judge S. G. was the judge rapporteur in the case.

The applicant lodged a cassation appeal against the judgment through a panel of the Poznań Court of Appeal. On 22 October 2001 her cassation appeal was rejected by a decision of that panel. In its written grounds for the decision, the panel stated that the cassation appeal did not comply with a procedural requirement set out in Article 393 3 § 1 (3) of the Code of Civil Procedure in that it did not include “arguments showing that its examination [by the Supreme Court] would be justified” within the meaning of this provision (see paragraphs 14-16 below). The mere fact that the cassation appeal contained arguments to show the grounds on which it had been lodged was insufficient for the appeal to be declared admissible. The panel further stated that this shortcoming was serious and as such could not be remedied. Judge S.G. presided over the panel which gave this decision and also acted as the judge rapporteur on the admissibility issue.

The applicant lodged an appeal with the Supreme Court against the decision of 22 October 2001, challenging inter alia the composition of the court. She submitted that the fact that the same judge had sat on a panel giving a second-instance judgment on the merits and subsequently on a panel rejecting a cassation appeal against that judgment rendered the proceedings unfair.

On 7 March 2002 her appeal was dismissed by a decision of the Supreme Court. The court first noted the case-law of the Supreme Court on the interpretation of Article 393 3 § 1 (3) of the Code. It referred to its numerous judgments to the effect that a shortcoming in a cassation appeal which took the form of a failure to enumerate the circumstances justifying its examination was of a serious and irreparable character, which could not be remedied by requesting the appellant to rectify it. It further noted that this requirement was closely linked to the examination of the grounds on which the Supreme Court could refuse to entertain a cassation appeal, as listed in Article 393 of the Code (see paragraph 18 below), namely if it considered that no significant legal issue arose in the case or where there were no legal issues involved which would give rise to serious doubts or to discrepancies in the case-law.

It referred to the applicant’s objection in one sentence only: “The fact that the judge, who took part in the judgment against which the cassation appeal was subsequently lodged, participated in a decision by which this appeal was found inadmissible is of no significance”.