FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13990/04 by MI Ę DZYZAK Ł ADOWA SP ÓŁ DZIELNIA MIESZKANIOWA WARSZAWSCY BUDOWLANI against Poland

The European Court of Human Rights (Fourth Section), sitting on 26 October 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr L. Garlicki , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , Ms L. Mijović , Mr D. Spielmann , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged on 7 April 2004 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Miedzyzakładowa Spółdzielnia Mieszkaniowa Warszawscy Budowlani , is a Polish housing co-operative, located in Warszawa.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, can be summarised as follows:

On 3 April 1998 the Warsaw Regional Court ordered the applicant housing co-operative to pay PLN 37,484 to T.D. and T.J. The applicant co-operative appealed. On 9 March 1999 the Warsaw Court of Appeal dismissed the appeal. On 13 August 1999 the applicant co-operative brought an appeal on points of law before the Supreme Court.

By an order of 13 November 2001 the Supreme Court refused to entertain the appeal. When doing so, the court relied on provisions of the Code of Civil Procedure as amended in May 2000 allowing it not to examin e manifestly ill-founded appeals or appeals in cases where no serious legal issue arose, even if these appeals had been brought before 1 July 2000 , the date on which the amendments of May 2000 entered into force.

Subsequently, on 27 June 2003 , the Constitutional Court examined a constitutional complaint in which the complainant ( not the applicant co ‑ operative) submitted that the May 2000 amendment s to the Code of Civil Procedure providing for the possibility to leave an appeal on points of law unexamined had come into force after her appeal had been lodged with the Supreme Court. She argued that, as a result, the May 2000 amendments to the Code breached the Constitution insofar as it guaranteed the rule of law , which encompassed , inter alia , the principle that law should not apply retrospectively. It was also argued that these provisions breached the complainant ' s right to a fair hearing in that she was deprived of her right to have an appeal on points of law examined in full by the Supreme Court.

The Constitutional Court held, in its judgment of 9 June 2003 (SK 12/03) that the May 2000 amendments were in breach o f Article 2 of the Constitution, referring to the rule of law as a fundamental constitutional principle . It further held that it was not necessary to determine whether they were compatible with Article 45 of the Constitution, guaranteeing a right to a fair hearing (see Relevant domestic law ).

On 28 July 2003 the applicant co-operative lodged a request for the re-opening of the proceedings before the Supreme Court, relying on this judgment of the Constitutional Court . It was argued that the Supreme Court ' s interlocutory order given in its case on 13 November 2001 had been issued on the basis of the May 2000 amendments, subsequently declared unconstitutional by the Constitutional Court . Therefore the judgment of the Constitutional Court provided grounds on which, in conformity with Article 190 § 4 of the Constitution, the proceedings in which a decision based on these provisions had been given should be re-opened and the order quashed.

On 9 October 2003 the Supreme Court dismissed the request for the re-opening of the proceedings. The Court stated that it was aware of the judgment of the Constitutional Court of 9 June 2003 . However, it observed that Article 4 0 1 1 of the Code of Civil Procedure provided that proceeding s could only be re-opened following a judgment of the Constitutional Court, if the unconstitutional provision had served as a basis for a decision on the merits. In the present case the unconstitutional provisions had served as a basis for an interlocutory order, i.e. for the Supreme Court ' s refusal to entertain the appeal on points of law. Therefore the proc eedings could not be re-opened, Article 4 01 1 of the Code of Civil Procedure not providing a legal basis for doing so.

B. Relevant domestic law and practice

1. Cassation appeal in civil proceedings

A p arty to civil proceedings can lodge a cassation appeal with the Supreme Court against a final judicial decision of a second-instance court which has terminated the proceedings.

Article 393 1 of the Code of Civil Procedure provides:

“The cassation appeal may be based on the following grounds:

1) a breach of substantive law by its erroneous interpretation or wrongful application,

2) a breach of procedural provisions, if that shortcoming could significantly affect the outcome of the case.”

Pursuant to Article 393 ¹³ the Supreme Court, having allowed a cassation appeal, may quash the challenged judgment in its entirety or in part and remit the case for re-examination.

2. Amendments to the Code of Civil Procedure of May 2000

On 24 May 2000 a law was enacted amending the Code of Civil Procedure. It introduced, inter alia , the following provision:

“1. The Supreme Court may refuse to entertain the cassation appeal, if:

i ) there is no appearance of any significant legal issue in the case,

ii) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts ' case-law,

iii) that appeal is manifestly ill-founded.

2. Paragraph 1 shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law ( zachodzi niewaznosc postepowania ).”

This provision entered into force on 1 July 2000 . However, Article 5 of the Law of 24 May 2000 provided, in so far as relevant:

“ 2. The provisions being in force so far shall apply to the lodging and examination of appeals against judicial decisions given before the day of entry into force of [this] law.”

A controversy arose over the latter provision, which led to the Supreme Court ' s resolution of 17 January 2001 (no. III CZP 49/00). The Supreme Court answered in the affirmative the question whether it may refuse to entertain a cassation appeal against a judicial decision given by the second instance court before 1 July 2000 . The court relied on the principle of the “immediate application” of procedural provisions, which it considered operative under Polish law since at least 1939. Pursuant to that principle, procedural provisions enter into force immediately and are applicable to proceedings regardless of the moment of their initiation. It found that Article 5 of the Law of 24 May 2000 provided for two exceptions to the application of that principle. One such exception concerned the examination of appeals against judicial decisions given before 1 July 2000 . However, that provision related to the “examination” of an appeal whereas, pursuant to the amended Code of Civil Procedure, the court could refuse the examination of certain cassation appeals. It further noted that mere assessment of whether an appeal is manifestly ill-founded or whether a serious legal issue arises cannot be regarded as an examination. Therefore, the Supreme Court considered that the exception to the principle of “immediate application”, in so far as it relates to the examination of appeals, does not cover cassation appeals.

The court further pointed out that the amendments to the Code of Civil Procedure made it possible for that court to carry out properly its tasks relating to the cassation procedure, which at that time were significantly hindered by the enormous backlog of trivial and manifestly ill-founded appeals. It stated:

“In addition, it must be noted that the backlog in the Supreme Court leads in concrete cases to a violation of Article 6 of the Convention (...), which, especially after the most recent judgments of the European Court of Human Rights in cases against Poland concerning the unreasonable length of proceedings, cannot be discounted.”

Finally, the court found the amendment at issue compatible with the Polish Constitution, in particular with the principle of a two instance judicial system, and Article 6 of the Convention, relying in this connection on the Brualla Gómez de la Torre v. Spain judgment of this Court.

3. Provisions relating to the constitutional complaint

Article 79 § 1 of the 1997 Constitution provides as follows:

“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”

At the material time, the complaint had to be lodged within 2 months from the date on which the individual decision was served (Article 46 § 1 of the Constitutional Court ' s Act). This time-limit was extended to 3 months with effect from 8 October 2000 .

4. Reopening of a civil case

Article 399 of the Code of Civil Proceedings provides that a civil case terminated by a final judgment on the merits can be reopened if applicable requirements set out in the Code are met.

5 . Relevant provisions of the Constitution

Article 2 of the Polish Constitution of 1997 reads:

“The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.”

Article 45 of the Constitution reads:

“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court. Exceptions to the public nature of hearings may be made for reasons of morality, State security, public order or protection of the private life of a party, or other important private interest. Judgments shall be announced publicly.”

Article 190 of the Constitution, insofar as relevant, provides as follows:

“1. Judgments of the Constitutional Court shall be universally binding and final.

2. Judgments of the Constitutional Court , ... shall be published without delay.

3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. Where a judgment has financial consequences not provided for in the Budget, the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned, after seeking the opinion of the Council of Ministers.

4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final jud icial decision , a final administrative decision or settlement of other matters was issued, shall be a basis for re-opening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings”.

Article 4 01 1 of the Code of Civil Procedure provides that a party to civil proceedings which have terminated with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution. Such a request can be lodged with the competent court within one month from the judgment of the Constitutional Court .

6 . The Constitutional Court ' s judgment of 9 June 2003 (SK 12/03)

On 9 June 2003 the Constitutional Court ruled on the compatibility with the Constitution of the May 2000 amendments to the Code of Civil Procedure. The Court held that the se provisions, taken together with their interpretation given by the resolution of the Supreme Court (referred to above at 2) were unconstitutional. This was so as the transitory provisions concerning the procedure to be followed in the examination of appeals on points of law lodged with the Supreme Court before 1 July 2000 , the date on which these amendments entered into force, lacked clarity. As a result, their interpretation could legitimately lead to opposite conclusions as to whether appeals lodged before 1 July 2000 were to be examined under the procedural provisions in force before, or after that date. On the ordinary meaning of the text, a reasonable interpretation was that the appeals lodged before 1 July 2000 should be examined under the provisions in force at the time when they were lodged with the Supreme Court. This, in the opinion of the Constitutional Court , was indeed the intention of the legislator. However, the interpretation given to these provisions by the Supreme Court led to a contrary conclusion. The failure of the legislator to formulate these transitional provisions in a clear and precise manner so as to allow the appellants to know which procedure would be followed by the Supreme Court when examining their appeals was in breach of Article 2 of the Constitution which provides that the rule of law is a fundamental constitutional principle. The rule of law n ot only requires that legal provisions be clear and precise, but it also imposes on the state an obligation not to enact laws which arbitrarily change the procedure to be applied in the examination of a case after that case had been launched.

7 . The Constitutional Court ' s judgment of 2 March 2004 (SK 53/03)

On 2 March 2004 the Constitutional Court gave a judgment in two joined cases, in which the complainants had essentially submitted that Article 4 01 1 of the Code of Civil Procedure was unconstitutional. The complainants relied on the fact that their cases the courts had refused to re-open civil proceedings given on the basis of a provision which had subsequently been declared unconstitutional. The courts considered that they could not re-open the proceedings, as the cases had been terminated by interlocutory decisions, not by judgments on the merits.

The Constitutional Court held that Article 4 01 1 of the Code of Civil Procedure was compatible with the Constitution. However, it criticised the legislator for the manner in which this provision had been inserted into the context of provisions concerning the re-opening of proceedings. While this provision was clearly designed to rescind decisions given on the basis of laws subsequently declared unconstitutional, it was so formulated as to allow the erroneous conclusion that such re-opening could only be effected in respect of proceedings terminated by a final decision on the merits. Such interpretation inevitably led to a conclusion that interlocutory decisions based on provisions subsequently declared unconstitutional could be left intact. This, in the Constitutional Court ' s conclusion, was manifestly unreasonable. However, there were no grounds on which to find this provision as such unconstitutional. It was not so much the provision itself which failed to meet the constitutional standards. It was rather the failure of the c ourts to interpret it correctly in such a way as to allow for the re - opening of all proceedings based on unconstitutional provisions, regardless of whether the final decision given in such proceedings was an interlocutory order or a judgment on the merits. The courts had at their disposal an array of such measures. It was not for the Constitutional Court to indicate which measures should be applied in this respect, and in what manner.

8. The c onstitutional complaint SK 1/04

A case SK 1/04 is currently pending before the Constitutional Court in which that court was invited to review whether Article 401 1 of the Code of Civil Procedure is compatible with Article 190 § 4 of the Constitution. The complainant submitted that the Supreme Court ' s interpretation of Article 401 1 has not changed despite the suggestions contained in the Constitutional Court ' s judgment of March 2, 2004 . Since it led to consistent refusals to re-open civil proceedings terminated by interlocutory decision s given on the basis of a provision subsequently found unconstitutional, the provisions of Article 190 § 4 of the Constitution have thereby been rendered ineffective.

COMPLAINT S

The applicant co-operative complains under Article 6 of the Convention about the Supreme Court ' s refusal, given on 13 November 2001 , to examine its cassation appeal. It submits that the May 2000 amendment to the Code of Civil procedure providing for the possibility to leave the cassation appeal without examination came into force after its cassation appeal had been lodged with the Supreme Court. As a result, the applicant co-operative was deprived of its right to have access to a court.

The applicant co-operative further complains under Article 6 of the Convention that the May 2000 amendments were later declared unconstitutional by the Constitutional Court ' s judgment of 9 June 2003 . It argues that under Article 190 § 4 of the Constitution a judgment of the Constitutional Court on the non-conformity with the Constitution of laws on the basis of which a final judicial decision has been given should constitute a basis for the re-opening of the proceedings. The applicant co-operative submitted the request for the re-opening to the Supreme Court, arguing that the refusal to entertain their cassation appeal had been based on provisions subsequently declared unconstitutional, but its request was refused on of 9 October 2003 .

The applicant co-operative submits that the Supreme Court referred to the provision of the Code of Civil Procedure which provided for such re-opening only in situations in which the final decision based on such unconstitutional provisions was a judgment on the merits. As in the applicant ' s case the decision of 13 November 2001 was not a judgment, but an interlocutory decision, the re-opening of the proceedings was impossible.

The Supreme Court, when refusing to re-open the proceedings, breached the applicant ' s right of access to a court in that its decision rendered impossible for the applicant to have access to an effective remedy and to have their case re-opened. Moreover, this decision of the Supreme Court circumvented the judgment of the Constitutional Court of 9 June 2003 and deprived it of any practical effect. As a result of the Supreme Court ' s refusal to re-open the proceedings, its own previous interlocutory order, that of 13 November 2001 , based on unconstitutional May 2000 amendments, remains valid, despite the fact that it was given on the legal basis which had subsequently been declared unconstitutional.

The applicant further invokes Article 13 of the Convention in respect of the proceedings conducted after 13 November 2001 .

THE LAW

1. The applicant co-operative complains under Article 6 of the Convention about the Supreme Court ' s refusal, given on 13 November 2001 , to examine its appeal on points of law. It submits that the amendment to the Code of Civil P rocedure providing for the possibility to leave unexamined the appeal on points of law came into force after its appeal had been lodged with the Supreme Court. As a result, the applicant co-operative was deprived of its right to have access to a court.

The applicant co-operative further complains that the May 2000 amendments were later declared partly unconstitutional by the Constitutional Court ' s judgment of 9 June 2003 . The applicant co-operative subsequently submitted the request for the re-opening of the case to the Supreme Court, arguing that the refusal to entertain their appeal had been based on unconstitutional provisions, but its request was refused on of 9 October 2003, only on the ground that the refusal had not been a decision on the merits of the case, but had only an interlocutory character.

In the applicant co-operative ' s submission, the Supreme Court, when refusing to re-open the proceedings, breached its right of access to a court and deprived the judgment of the Constitutional Court of 9 June 2003 of any practical effect.

Article 6 § 1 of the Convention provides, in so far as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

a) The Court first observes that the complaints made by the applicant co-operative relate to a set of events, initiated in 1998 by the lodging of the civil action against the co-operative. In November 2001 the Supreme Court refused , by way of the interlocutory order, to entertain the applicant ' s co-operative appeal on points of law against the second-instance judgment and this was a final decision given in the civil proceedings concerned. The Court notes that the applicant co-operative did not lodge a constitutional complaint to challenge the provisions of the Code of Civil Procedure on which the Supreme Court ' s decision was based. Later on, in June 2003, in an attempt to benefit from the change in legal situation brought about by the judgment of the Constitutional Court of 9 June 2003 , the applicant co-operative requested that the civil proceedings in its case be re-opened.

I nsofar as the applicant co-operative complains about the lack of access to a court in the proceedings , terminated by the Supreme Court ' s decision of 13 November 2001 , the Court notes that the application was introduced on 7 April 2004 . The applicant ' s co-operative has therefore fail ed to comply with the six-month time-limit set out in Article 35 §§ 1 Convention . Consequently, this part of the application has to be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

b ) The applicant co-operative further complains under Article 6 of the Convention that the subsequent proceedings in which it tried to have the Supreme Court ' s interlocutory order of 13 November 2001 overturned were unfair in that they failed to rectify the refusal of access to the S upreme C ourt . This was so because u nder Article 190 § 4 of the Constitution a judgment of the Constitutional Court on the non-conformity with the Constitution of a law on the basis of which a final judicial decision has been given should constitute a basis for the re-opening of the proceedings. However, in the applicant co-operative ' s case the Supreme Court refused to do so .

The Court first observes that this part of the application is based on the premise that the May 2000 amendments to the Code of Civil Procedure were incompatible with the right to a fair hearing within the meaning of Article 6 of the Convention insofar as it guarantees the right to access to a court . However, the Court recalls that it has already examined whether the operation of these amendments complied with the guarantees of Article 6 of the Convention and found it to be the case (see Zmali Å„ ski v. Poland ( dec .) , no. 52039/99, referred to above). T he Court considers that the conclusion it reached in its decision r emains valid.

Nonetheless , the Court will leave open the question whether the facts of the present case, in the light of the subsequent judgments given by the Constitutional Court and the Supreme Court, raise an issue under Article 6 of the Convention, since this part of the application must be declared inadmissible for the following reasons.

T he Court observes that the applicant co-operative unsuccessfully sought to have the Supreme Court ' s interlocutory order of 13 November 2001 quashed and the proceedings re-opened. The applicant co-operative, when lodging its request to have reopened the proceedings previously terminated by that order , relied on Article 190 § 4 of the Constitution. It provides that a judgment of the Constitutional Court on the incompatibility of a legal provision with the Constitution constitutes a basis for the re-opening of proceedings in which a final decision was given on the basis of such a unconstitutional provision. However, such re-opening can only be carried out on the basis of specific statutory provisions governing a given type of procedure, i.e. the Code of Civil Procedure in respect of the present case. The applicant co-operative also relied on Article 401 1 of the Code of Civil Procedure .

T he Court re iterates in this connection that neither Article 6 nor any other provision of the  Convention or its Protocols guarantee a right to have a civil case heard by three judicial instances. Neither does the Polish Constitution guarantee such a right. The Court also reiterates that the Article 6 § 1 of the Convention does not provide for a right to have a civil case terminated by a valid judicial decision subsequently re-opened.

The Court further recalls that guarantees of Article 6 of the Convention do not apply to proceedings in which re-opening of the proceedings terminated by a final decision are sought (see, among many other authorities, Rudan v. Croatia ( dec .), no. 45943/99, 13 September 2001; Wierciszewska v. Poland, no. 41431/98 , § 35, 25 November 2003). The Court therefore concludes that Article 6 of the Convention is not applicable to this part of the proceedings.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The applicant further invokes Article 13 of the Convention in respect of the proceedings conducted after 13 November 2001 .

The Court recalls that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see for example Kud ł a v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).

Referring to the foregoing considerations under Article 6 § 1, the Court notes that in the present case the applicant association has no “arguable complaint” under that provision.

It follows that the complaint under Article 13 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O ' Boyle Nicolas Bratza Registrar President