FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46015/99 by Jerzy TARTAK against Poland

The European Court of Human Rights ( Fourth Section) , sitting on 23 April 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mr J. Makarczyk , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 6 May 1998 and registered on 5 February 1999,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Jerzy Tartak, is a Polish national, who was born in 1944 and lives in Białystok, Poland.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

Until 1991 the applicant was employed as a journalist in the Białystok Branch of the Publishing Co-operative “Prasa-Książka-Ruch” (“PKR”). Apparently, on 7 January 1991 the Białystok branch of PKR was acquired by the Labor Co-operative “ Kurier Podlaski ” (the Co-operative”), and accordingly, all its employees became ex lege the employees of the Co-operative.

In 1996 the applicant brought a compensation claim against the Co-operative before the Białystok Regional Court. He submitted that since 1993 his salary had been reduced in comparison to his salary in Bia łystok Branch of PKR and that it was contrary to the provision of the Collective Agreement which was binding in PKR. The Co-operative became a legal successor of the Białystok Branch and therefore the rules of the Collective Agreement should have still applied to the former employees of PKR.

The Co-operative contended that the Collective Agreement was suspended by virtue of the resolution of the Board of 6 August 1993 and therefore the only legal basis for the salary of the applicant was an employment contract of 1 May 1993 concluded with the Co-operative.

The President of the Labour Section of the Białystok Regional Court Ms. Justice W.P.K. issued some administrative orders, but did not participate as a trial judge in the proceedings.

On 6 March 1997, the Białystok Regional Court composed of Ms M.K. and two lay judges E.K. and B.S. , dismissed the applicant’s claim, considering that by signing the employment agreement of 1993 the applicant had accepted new conditions of  employment notwithstanding that they differed from those provided for in the Collective Agreement.

The applicant appealed and on 28 May 1997 the Białystok Court of Appeal, composed, inter alia , of Ms. Justice W.P.K., who had in the meantime been promoted, upheld the contested decision.

The applicant lodged a cassation appeal, submitting, inter alia , that the proceedings should be declared null and void since the Białystok Regional Court requested the defendant Co-operative to submit certain documents, after the final hearing took place. In consequence the applicant was not given a possibility to state his views on all the evidence. The applicant also alleged a lack of impartiality on the part of the court of appeal as one of the judges sitting on the bench, namely Ms. Justice W.P.K., had previously indirectly dealt with the case in the first-instance court.

On 25 November 1997 the Supreme Court dismissed the applicant’s cassation appeal, considering his claims against the co-operative unfounded. The court rejected the applicant’s challenge of a judge for bias, finding no grounds of nullity for the reason that Ms. Justice W.P.K., who had issued some administrative orders in the case ( zarządzenia porządkowe ), did not decide on the merits at the first-instance court. The Supreme Court failed to respond to the applicant’s complaint regarding the failure of the opposing party to communicate to him all the relevant documents in the proceedings.

B. Relevant domestic law

A party 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 393¹ 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.

COMPLAINT

The applicant complains under Article 6 of the Convention that the proceedings before the courts in his case were unfair in that:

a) the Białystok Regional Court requested the opposing party to submit certain document within a three-day time limit after the final hearing took place. The applicant was never offered a possibility of  familiarising himself with the evidence and preparing his comments on it;

b) the court of appeal was not impartial as one of the judges sitting on the bench had been indirectly involved in the case to a certain extent in the first-instance court;

c) the  courts did not allow his well-founded claims.

THE LAW

The applicant complains under Article 6 of the Convention that he was never afforded the possibility of familiarising himself and commenting on certain documents the first-instance court had requested the opposing party to submit after the final hearing was closed.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with the Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

The applicant complains under Article 6 of the Convention that the proceedings before the courts in his case were unfair in that the court of appeal was not impartial as one of the judges sitting on the bench had been indirectly involved in the case in the first-instance court and that the courts did not allow his well-founded claims. Article 6 § 1 of the Convention provides, insofar as relevant, as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The existence of impartiality for the purposes of Article 6 § 1 must be determined according to the principles laid down in the Court’s case-law, namely according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see Wettstein v. Switzerland , no. 33958/96, § 42, ECHR 2000-XII [21.12.00]).

Under the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (cf. Bulut v. Austria judgment of 22 February 1996, Reports of Judgments and Decisions 1996-II, p. 356, § 32; Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, § 26). As to the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his or her impartiality (the Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, § 30).

As regards the subjective test, the applicant has adduced no evidence to suggest that the judge in question was personally biased.

As regards the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. The Court observes that Ms. Justice W.P.K. had issued administrative orders as to the organisation of the proceedings in the first-instance court. The Court considers that the participation of a judge in the activities of a procedural or administrative character which have no relevance  for the outcome of the dispute, but which have the aim of arranging the order of the proceedings, is not sufficient to cast doubts on his or her impartiality. The Court does not find it established that the judge was subjectively or objectively partial in deciding the case against the applicant.

It follows that this complaint manifestly ill-founded and must be rejected under Article 35 § 4 of the Convention.

Insofar as the applicant could be understood as complaining about the outcome of the proceedings or assessment of evidence in his case, the Court reiterates that according to Article 19 of the Convention, the Court’s duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). The Court finds no elements which would indicate that the national courts went beyond their proper discretion as to the assessment of the evidence before them.

It follows that this part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint  concerning the applicant’s right to have knowledge of and comment on all evidence adduced or observations filed ;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President