Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26760/95

by Mikolaj WERNER

against Poland

The European Commission of Human Rights sitting in private on

19 January 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 November 1994

by Mikolaj Werner against Poland and registered on 20 March 1995 under

file No. 26760/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

29 December 1995 and the observations in reply submitted by the

applicant on 27 March 1996 and on 28 January 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1946, is a lawyer

residing in Koszalin.

The facts of the case, as submitted by the parties, may be

summarised as follows:

On 15 December 1993 the Koszalin District Court (S*d Rejonowy)

appointed the applicant to the function of trustee in bankruptcy of a

limited liability company H. located in Koszalin.

On 19 March 1994 judge M., who supervised the bankruptcy

proceedings, requested the Koszalin District Court to dismiss the

applicant from his function. She submitted that the applicant had been

involved in civil proceedings relating to his failure to pay salaries

to his employees and that the court had found against him. Thus he did

not comply with the legal requirements of a trustee of an estate in

bankruptcy as he could not be considered trustworthy. Furthermore,

until the end of January 1994 he had failed to give notice to all the

employees of the H. company; thus he had not carried out his

obligations as a trustee in a satisfactory manner as required by the

law.

On 21 March 1994 the Koszalin District Court, in a panel composed

of three judges, including judge M., at a session held in camera,

dismissed the applicant and appointed a new trustee. No party to the

bankruptcy proceedings attended the hearing and the applicant was,

likewise, not present.

On 28 March 1994 the applicant appealed against this decision.

He submitted that, while it was true that no appeal could be filed

against the decision to appoint a new trustee, the law was not clear

as to whether an appeal lay against that part of the decision by which

he had been dismissed. Furthermore, his good reputation as a lawyer

and as an employer had been damaged both by the contents of judge M.'s

motion and by the District Court's decision to dismiss him. He

submitted that certain statements in the motion were incorrect as to

the facts. Therefore he had to lodge an appeal in order to challenge

them. He contested both the allegation that he was untrustworthy and

that he had not been carrying out his duties satisfactorily. He

further submitted that judge M., considering her own claim, had acted

both as a claimant and as a member of the Court, which called into

question the impartiality of the Koszalin District Court.

On 30 March 1994 the Koszalin District Court rejected the

applicant's appeal. The Court considered that the Bankruptcy Act did

not provide for an appeal against dismissal of a trustee in bankruptcy.

Judge M. was entitled to participate in the court panel as the

Bankruptcy Act excluded participation of a judge-supervisor only where

an appeal lay against a decision of that judge.

The applicant appealed to the Koszalin Regional Court (S*d

Wojewódzki), submitting that the District Court was wrong to hold that

there was no appeal against its decision. He reiterated that he was

deprived of a possibility to have the allegations against him reviewed

by a court.

On 8 July 1994 the Koszalin Regional Court dismissed the

applicant's appeal. The Court considered that, according to the

Bankruptcy Act, no appeal lay against the decision by which a previous

trustee was dismissed and a new one appointed.

On 29 April 1996 the Koszalin Regional Court convicted the

applicant of misappropriation of the "H." company's assets, sentenced

him to one year's imprisonment and suspended the execution of the

sentence for a period of two years.

On 26 September 1996 the Koszalin Court of Appeal (S*d

Apelacyjny) quashed this judgment and ordered that the case be

reconsidered.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

that he was denied access to a court. He contends that the motion to

dismiss him from the paid function of trustee in bankruptcy, submitted

by judge M., contained disparaging statements and unfounded allegations

against him. As no appeal is possible against this decision, he was

deprived of any possibility of challenging these allegations. His

dismissal has become publicly known and caused numerous unfavourable

comments as regards his personal qualities and professional skills as

a lawyer. Thus his right to enjoy a good reputation has suffered.

The applicant complains under Article 6 para. 1 of the Convention

that in the proceedings relating to his dismissal, the supervising

judge M. had acted both as a claimant and as a judge, when

participating in a court panel which decided to dismiss him. This

called into question the impartiality of the Koszalin District Court.

Also under Article 6 para. 1 of the Convention he complains that

the court session at which he was dismissed was held in camera. Thus

he did not have any possibility of defending himself against the

allegations and of presenting his arguments to the court.

He complains under Article 3 of the Convention that these

allegations amounted to degrading treatment.

The applicant further complains under Article 13 of the

Convention that he had no effective remedy to complain about his rights

under Articles 3 and 6 being breached by persons acting in an official

capacity.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 November 1994 and registered

on 20 March 1995.

On 28 June 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

29 December 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 27 March 1996. On 18 June 1996 the

Government submitted additional observations to which the applicant

replied on 28 January 1997.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he was denied access to court to refute disparaging

statements and unfounded allegations against him contained in judge

M.'s motion for his dismissal from the function of trustee in

bankruptcy.

Article 6 para. 1 (Art. 6-1) of the Convention reads:

"1. In the determination of his civil rights and

obligations ... everyone is entitled to a fair ... hearing

... by an ... impartial tribunal ..."

a) The Government concede that the applicant exhausted relevant

domestic remedies in respect of his dismissal. However, he failed to

exhaust domestic remedies as regards the allegedly disparaging

statements of judge M. It was open to him to institute proceedings

before a civil court pursuant to Articles 23 and 24 of the Civil Code,

requesting that these statements be rectified and apologised for and,

in particular, that the judge make a public statement to the effect

that they were erroneous. If the applicant could show that he suffered

financial prejudice as a result thereof, compensation could be awarded.

The Government further submit that the fact that the person who made

the allegedly disparaging statements acted in his or her official

capacity does not amount to any impediment to such action being lodged.

The Government further observe that the applicant did not adduce any

evidence in support of his assertion that the statements concerned

damaged his reputation. They finally observe that, in fact, in the

light of the applicant's criminal conviction for misappropriation of

assets of the "H." company, which came to light following the

Government's inquiry into the present case, the judge's submissions

cannot be seen as unjustified, and that the applicant's argument to

this effect is unfounded. Thus, it is not conceivable that an action

by the applicant for protection of his personal rights pursuant to

Articles 23 and 24 of the Civil Code would stand any chances of success

before the court. They conclude that the applicant did not comply with

the requirements of Article 26 (Art. 26) of the Convention.

The applicant submits that the Government's position is

contradictory in that they state that the domestic remedies concerning

the same complaint were in part exhausted and in part not. His appeal

against his dismissal related to the cause of damage to his reputation,

i.e. to the judge's allegations, and to the result which they had

caused, i.e. to his dismissal. He emphasises that by way of appeal,

he sought a possibility of refuting the statements before the court in

the same proceedings which concerned his dismissal. Had there been an

appeal available against his dismissal, there would have been a

possibility of a judicial review of both the cause and the result. The

civil claim under Articles 23 and 24 of the Civil Code relied on by the

Government constitutes an entirely separate legal basis for seeking

protection of reputation. If the Government's argument was accepted,

he would have to institute separate proceedings, which would relate

only to the protection of his reputation. This would put an undue

burden on him.

The Commission recalls its case-law, according to which the

burden of proving the existence of available and sufficient remedies

lies upon the State invoking the rule (N. 23414/94, Dec. 28.11.95, D.R.

83-A, p. 31).

The Commission first observes that no appeal lay to a higher

court against the Koszalin District Court's decision to dismiss the

applicant. It further notes that the remedy referred to by the

Government would necessitate that the applicant institute separate

proceedings before a civil court. The Government have not shown that

there is a remedy available under Polish law which would encompass an

examination of both the allegations against the applicant put forward

by judge M. and of the well-foundedness of his dismissal. In these

circumstances the Commission considers that it has not been established

that the applicant had an effective remedy at his disposal.

It follows that this part of the application cannot be rejected

for non-compliance with the requirement to exhaust domestic remedies.

b) As regards the applicability of Article 6 para. 1 (Art. 6-1) of

the Convention to the proceedings concerned, the Government first

recall that Article 6 (Art. 6) is applicable where there is a serious

and genuine dispute relating to rights and obligations recognised at

least on arguable grounds in domestic law and that the outcome of the

dispute must be directly decisive for the rights or obligations

concerned.

The Government further submit that the jurisdiction of the court

in the bankruptcy proceedings encompasses all aspects of the

liquidation of assets of the bankrupt company. The trustee is the

court's assistant appointed to manage the estate in bankruptcy since

the court cannot assume these duties. Therefore the trustee performs

a public function and he is supervised by the court in its exercise.

Polish law does not set out the requirements that must be satisfied by

a candidate for a post of trustee. The decision is to be taken by the

court following an appraisal of the competence of the person concerned.

As a consequence, as the law entrusts the court with a duty to appoint

the trustee, it is likewise entitled to dismiss him or her if the

relevant duties are not performed properly.

The Government further refer to the applicant's criminal

conviction for misappropriation of assets of the bankrupt company,

pronounced on 29 April 1996. This proves, they emphasise, that the

applicant's dismissal was well-founded, and that the judge's

submissions in her motion to the court cannot be considered

unjustified.

The Government consider that the assessment made by the court in

the present case is similar to that which was examined by the European

Court of Human Rights in the Van Marle judgment (Eur. Court HR, Van

Marle v. the Netherlands judgment of 26 June 1986, Series A no. 101)

in that the examination and evaluation of professional competence by

a public authority is a matter which cannot be brought under the notion

of civil rights.

The Government further emphasise that neither appointment nor

dismissal of the trustee are governed by the provisions of labour law.

In particular, the provisions of the Labour Code are not applicable

thereto. It is only the factual aspect of the trustee's duties that

can be considered comparable to an employment, not the legal one.

Further, the remuneration of a trustee is fixed on the basis of the

Minister of Justice's by-law enacted pursuant to the Bankruptcy Act.

The Government further submit that there is no civil right or

claim to be a trustee in bankruptcy. Even assuming that such right

exists in domestic law, the Convention does not guarantee a fair

hearing in the determination of all the rights and obligations which

an individual might arguably claim under domestic law. In the present

case there is no possibility for anyone to exercise a right "to be

a trustee" and no corresponding obligation of the State to ensure that

such right be exercised.

The Government conclude that in view of the special character of

the legal rules pertaining to the function of trustee in bankruptcy,

Article 6 (Art. 6) of the Convention is not applicable to the

proceedings relating to his dismissal as they do not concern the

applicant's civil rights and obligations within the meaning of this

provision.

The applicant submits that the scope of Article 6 (Art. 6) of the

Convention extends to the determination of civil rights and obligations

and of criminal charges. This should be understood in such a manner

that the proceedings which are not covered under the criminal head of

this provision fall within its scope of application under its civil

head. Thus, cases concerning civil rights, as well as rights

originating from the provisions of administrative law, labour law,

intellectual property law, family law and, ultimately, bankruptcy law,

would be subject to the guarantees of this provision of the Convention.

The restrictive interpretation of the scope of application of Article

6 (Art. 6) of the Convention, relied on by the Government, would run

counter to the Convention organs' case-law. The conclusion that there

are legal relations which do not fall within the scope of either of the

domains of Article 6 para. 1 (Art. 6-1) would not be compatible with

the Convention's character and purpose.

The applicant emphasises that the Government failed to indicate

any procedure, either of a judicial or a non-judicial character, in

which he could seek redress. He further submits that the Government's

submissions, in their part relating to his criminal conviction, contain

a negative assessment of his personal qualities. He emphasises that

the central issue of the present case is the complaint about his rights

being breached, not the assessment of him as a person. He states that

he did not participate in the enquiry concerning the present case,

referred to by the Government. He finally submits that the

Government's argument based on his criminal conviction amounts to

defamation as on 26 September 1996 the Court of Appeal quashed this

judgment. Moreover, the charges against him in the criminal

proceedings do not correspond to the contents of judge M.'s motion.

The Government further address the question of whether the

Koszalin District Court was acting as a court within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention when it decided on the

applicant's dismissal. They submit that in the bankruptcy proceedings

the court, when dismissing the applicant, exercised its discretionary

power with which it was entrusted by the relevant legal provisions.

The court did not act in its judicial capacity in which it is called

upon to rule on civil claims submitted by parties to proceedings. It

is obvious that the court's jurisdiction in the bankruptcy proceedings

is of an administrative character and, as such, includes the

supervision of the acts of a trustee, acting as a public organ. The

Government thus state that the nature of relations between the court

and the trustee in the bankruptcy proceedings must lead to the

conclusion that the court in the proceedings concerned was not

carrying out any judicial functions.

The applicant submits that the court acted pursuant to the

Bankruptcy Act, which entrusts the courts with the handling of

bankruptcy cases. The procedural provisions applicable are those of

a judicial procedure. The applicant concludes that the court was

acting in its judicial capacity.

The Commission considers that this part of the application raises

serious issues of fact and law under the Convention the determination

of which should depend on an examination of the merits. It follows

that this part of the application cannot be dismissed as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring it inadmissible has been

established.

2. The applicant complains under Article 3 (Art. 3) of the

Convention that the allegations contained in the judge's motion for his

dismissal amounted to degrading treatment.

The Commission recalls that according to the case-law of the

Convention organs, ill-treatment must attain a minimum level of

severity if it is to fall within the scope of Article 3 (Art. 3) of the

Convention (Eur. Court HR, Ireland v. United Kingdom judgment of

18 January 1979, Series A No. 25, p. 65, para. 162). In the present

case the treatment complained of consisted in the judge's disparaging

submissions in the motion for the applicant's dismissal from the

function of trustee in bankruptcy. The Commission considers that the

treatment complained of did not reach the threshold of severity

required to bring the matter within the ambit of Article 3 (Art. 3) of

the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant further complains under Article 13 (Art. 13) of the

Convention that he had no effective remedy to complain about his rights

under Article 3 (Art. 3) being breached. However, the case-law of the

Convention organs establishes that Article 13 (Art. 13) does not

require a remedy in domestic law for all claims alleging a breach of

the Convention; the claim must be an arguable one (Eur. Court HR, Boyle

and Rice v. United Kingdom judgment of 27 April 1988, Series A no. 131,

p. 23, para. 52). In the light of the above conclusion concerning the

applicant's complaint under Article 3 (Art. 3) of the Convention, the

Commission finds that the applicant does not have an arguable claim of

a breach of this provision which warrants a remedy under Article 13

(Art. 13). This part of the application must, therefore, also be

rejected as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

4. The applicant finally complains under Article 13 (Art. 13) of the

Convention that he had no effective remedy as regards his complaint

under Article 6 (Art. 6) of the Convention. The Commission recalls

that where the right claimed is of a civil character the guarantees of

Article 13 (Art. 13) are superseded by those of Article 6 para. 1

(Art. 6-1) (No. 13021/87, Dec. 8.9.88, D.R. 57 p. 268). Therefore no

separate issue arises in connection with this complaint.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint that he was denied access to a court

to challenge his dismissal from the function of manager of

the estate in bankruptcy;

DECLARES INADMISSIBLE the remainder of the application.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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WERNER v. POLAND

WERNER v. POLAND

LEXI