Information Note on the Court’s case-law No. 93

January 2007

Warsicka v. Poland - 2065/03

Judgment 16.1.2007 [Section IV]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Judge on appellate court examines the merits of an appeal as well as the admissibility of a cassation appeal against that court's judgment, following which the appellant could appeal to the Supreme Court directly: no violation

Facts : A regional court dismissed a civil action brought by the applicant. She appealed unsuccessfully. Judge S. G. was the judge rapporteur in the case. The applicant lodged a cassation appeal against the judgment through a panel of the court of appeal. This panel, presided over by S.G. (also the rapporteur on the panel), rejected her appeal. The applicant then appealed to the Supreme Court challenging, among other things, 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 very judgment. The Supreme Court dismissed her appeal.

Law : The requirements of a fair hearing as guaranteed by Article 6(1) do not, in principle, automatically prevent the same judge from successively performing different functions within the framework of the same civil case. In particular, it is not incompatible with the requirements of that provision if the same judge is involved, first, in a decision on the merits of a case and, subsequently, in proceedings in which the admissibility of an appeal against that decision is examined. 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. In particular, it is necessary to consider whether the link between substantive issues determined in a decision on the merits and the admissibility of an appeal against that decision is close enough to cast doubt on the judge's impartiality.

It was crucial for the assessment of the applicant's case that a further recourse was available to her against the decision of the court of appeal's panel in that she was entitled to lodge an appeal directly with the Supreme Court. She did so, challenging both the composition of the panel and the lawfulness of its decision. The Supreme Court considered unfounded her objection to the composition of the panel. Like the panel, the Supreme Court also concluded that her appeal had failed to comply with applicable procedural requirements.

Moreover, the question for determination by the court of appeal's panel was not the same as the question which that court had determined by its judgment on the merits. The panel had to determine only the admissibility of the applicant's cassation appeal against the second-instance judgment given by that very court. The scope of the examination involved could not be said to have amounted to an assessment of the merits of the cassation appeal, which was the exclusive task of the Supreme Court. Hence S.G., when participating as the judge rapporteur in the panel deciding on the admissibility of the applicant's appeal, was not called upon to assess and determine whether, for example, the court of appeal had correctly applied the relevant domestic law to the applicant's case. In those circumstances, there was no such link between substantive issues determined by the judgment on the merits and the admissibility of the cassation appeal which would have cast doubt on the impartiality of S.G. Having regard to the circumstances of the case taken as a whole, it could not be said that the applicant's fears as to the impartiality of the Court of Appeal when examining the admissibility of her cassation appeal had been objectively justified.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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