Resolution CM/ ResDH ( 2013) 248 Bar- Bau Sp. z o. o. against Poland

Execution of the judgment of the European Court of Human Rights

Application No.

Case

Judgment of

Final on

11656/08

BAR-BAU SP. Z O. O.

10/04/2012

10/04/2012

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)1242 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

ACTION REPORT

Information about the measures to comply with the judgment in the Bar- Bau v. Poland case

( anglais uniquement )

Case description

Bar- Bau , application N o. 11656/08, judgment of 10/04/2012, final on 10/04/2012

The case concerns the Supreme Court`s refusal in 2007 to allow a cassation appeal in the civil proceedings initiated by the applicant, a limited liability company, against the State Treasury for damages caused by criminal proceedings instituted against its president..

The Regional Court refused the civil claim and this judgment was upheld on appeal; the applicant lodged a cassation appeal on points of law. The Supreme Court sitting as a single judge in camera refused to allow it, concluding that none of the conditions of admissibility of a cassation appeal was met in this case. However, it made a full analysis only of one of the grounds for admissibility of the cassation appeal - the alleged problem of the existence of an important question of law, leaving without further consideration the second ground that was of crucial importance for the applicant in the particular circumstances of the case – a need for interpretation of the question of law. The Supreme Court confined itself to finding that there was no need to proceed with interpretation of the provisions governing the responsibility of the state (Article 417 and 418 amended former Civil Code) and no issue arose as to its application.

The European Court noted that such a choice of the Supreme Court had placed the applicant in a situation of legal uncertainty. Indeed, the facts in support of the second ground and the proceedings that followed had taken place during a transitional period between the finding of invalidity of the legal framework governing the responsibility of the Treasury and its amendment by the legislature. The legislative change had placed the applicant at a disadvantage and therefore it had seemed legitimate for the applicant to get a clear answer to a new question of law, suffering from a lack of uniform interpretation by the courts. In such circumstances the Court noted that the merits of the second ground of cassation appeal were of some importance to the applicant company.

In light of these considerations, and taking into account the particular circumstances of the case, the European Court found that the failure to give reasons for refusing the cassation appeal to the applicant company was not proportionate to the aim of ensuring legal certainty and proper administration of justice (violation of Article 6 § 1 of the Convention).

I. Individual measures

1. Details of just satisfaction

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

-

4,000 EUR

-

4,000 EUR

Due on: 10/07/2012 Paid on 28/06/2012

2. Other individual measures

Reopening of the domestic civil proceedings in order to lead to restitutio in integrum is not possible in this case because of the importance attached by the domestic legislation to the principle of the legal security, also protected by the European Convention.

In any case, the Government recalls that the applicant has not requested any just satisfaction for pecuniary damage, and that the Court has granted a just satisfaction for the non-pecuniary damage sustained. If nevertheless, in the applicant`s opinion, the consequences of violation found in this case are not adequately remedied by the award of just satisfaction by the European Court it may submit a claim for compensation against the State Treasury for the so-called “court unlawfulness” in relation to the Supreme Court`s decision on refusal to allow the applicant`s cassation appeal, pursuant to articles 4171 § 2 and 4241b of the Civil Code. This claim would refer to the Supreme Court`s decision of 08/08/2007, which “unlawfulness” was confirmed by the European Court in the judgment of 10/04/2012.

In these circumstances, no other individual measure appears necessary.

II. General measures

The violation in this case arose from an isolated decision by a single Supreme Court`s judge. The President of the National Council of the Judiciary of Poland received the judgment and was asked to disseminate it amongst the judges of the Supreme Court.

In addition, the judgment, as many of the other European Court ’ s judgments, was included in the curricula of the trainings for judges and prosecutors carried out by the National School of Judiciary and Public Prosecution.

In this regard, particular attention should be drawn to the set of systemic trainings held in 2012. These trainings were organized for judges of appellate courts and designed to inform about the most common violations of the Convention concerning the Polish justice system. Approximately 700 judges took part in these trainings so far. The trainings will continue throughout 2013 and in subsequent years. It is estimated that in five to seven years all judges should have undergone such training.

Moreover, the European Court`s judgment in the case of Bar- Bau was translated and published at the website of the Ministry of Justice (www.ms.gov.pl).

In these circumstances, no other general measure appears necessary.

III. Conclusions of the responding State

The Government consider that further individual measures are not necessary in the present case and that the general measures adopted will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention.