FOURTH SECTION
 
 
 
 
 
 
CASE OF KORZENIAK v. POLAND
 
(Application no. 56134/08)
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
10 January 2017
 
 
 
 
FINAL
 
10/04/2017
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. 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 39820 of 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,

Outcome for Article 6: violation