Resolution CM/ ResDH (2012) 199 [1] Gajewski against Poland

Execution of the judgment of the European Court of Human Rights

(Application No. 27225/05, judgment of 27 December 2010, final on 21 March 2011)

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 the above case and to the violation established (see document DH-DD ( 2011)1010 );

Recalling that the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide to 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 its 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( 2 011)1010 );

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 [2]

Information about the measures to comply with the judgment in the case of

Gajewski against Polsce

Case description

Gajewski , application no. 27225/05, judgment of 21/12/2010, final on 21/03/2011

The case concerns the lack of impartiality of the court that determined the applicant ’ s claim in insolvency proceedings, in which the applicant had been appointed a trustee, on the ground that one of the judges on the bench submitted to the court a motion concerning calculation of the applicant ’ s remuneration (violation of Article 6 § 1 of the Convention).

The European Court of Human Rights observed that the mere fact that a judge had already taken pre-trial decisions cannot by itself be regarded as justifying concerns about his or her impartiality. However, in the present case the same issue, i.e. the amount of the applicant ’ s remuneration, was addressed by the judge in her motion and later by the court in its decision.

The Court further observed that, despite the fact that the court of second instance had all the powers to remedy the situation, it had failed to do so and the procedural defect had not been rectified.

I. Payment of just satisfaction and individual measures

1. Details of just satisfaction

P e c u niary da m age

N o n- p e c u niary da m age

C o st s a n d e x p e ns e s

T o tal

-

3,000 E U R

-

3,000 EUR

P aid o n 09/0 6 /2011

2 . Individual measures

The Court awarded the applicant just satisfaction in respect of non-pecuniary damage. It further found that there was not any casual link between the violation found and the pecuniary damage alleged.

In these circumstances, no other individual measure appears necessary.

II. General measures

The violation of Article 6 § 1 of the Convention in the present cases was rather of an isolated nature and resulted from failure of specific national courts. Therefore, it seems that publication and dissemination of the Court ’ s judgment would be appropriated in order to avoid similar violations in the future.

In this context it should be noted, that the Court ’ s judgment was translated into Polish and published on the website of the Ministry of Justice (www.ms.gov.pl). The information about its publication was sent to all courts of appeal and the General Prosecutor ’ s Office with request to disseminate it among judges and prosecutors. It was also sent to the National School of Judiciary and Public Prosecution.

In these circumstances, no other general measure appears necessary.

III. Conclusions of the responding state

The Government considers that other individual measures are not necessary in the present case and that the general measures adopted, in particular publication and dissemination of the judgment of the European Court of Human Rights, will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 6 December 2012 at the 11 57 th Meeting of the Ministers’ Deputies .

[2] Information submitted by the Polish authorities on 14 October 2011 .