CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I agree with the outcome in the instant case but I am unable to follow the reasoning. The case concerns a fundamental issue of procedural fairness, namely whether a judge who took cognizance of a case at a certain stage of civil judicial proceedings can sit on the bench in the same case at a subsequent stage of those proceedings. In my view, this case reveals the weaknesses of the approach adopted to date and demonstrates the need to revisit it.

2. Human-rights issues of procedural law are especially difficult because the applicable provisions of the Convention are very general and vague, whereas procedural law is not only highly complex but varies considerably from one State to another. In such a context, devising universal standards of procedural fairness for the purpose of assessing very different national judicial procedures is a perilous exercise.

The reasoning, which tries to follow the case-law of the Court, formulates the following test in paragraph 50:

“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 and, importantly, to the characteristics of the relevant rules of civil procedure applied to the case. In particular, it is necessary to consider whether the link between substantive issues determined at various stages of the proceedings is so close as to cast doubt on the impartiality of the judge participating in the decision-making at these stages (see Warsicka , § 40, cited above, and Toziczka , cited above, § 36).”

This test has to be placed in the broader context of the established case ‑ law, according to which the fact that a judge took part in examining a case at an earlier stage of proceedings does not mean that he is always prevented from examining the same case at a subsequent stage of proceedings (see, for instance, the judgment in the case of Ringeisen v. Austria , 16 July 1971, § 97 in fine , Series A no. 13 ; case of Mežnarić v. Croatia , no. 71615/01, § 33, 15 July 2005 ). It follows from this premise that the mere fact that substantive issues determined at various stages of the proceedings are part of the same case does not mean that the link between them is necessarily so close as to cast doubt on the impartiality of the judge participating in the decision-making at these stages. In other words: the mere co-existence of substantive issues forming complementary aspects of the same case is not sufficient; it is necessary to establish a closer link than this.

3. In the instant case it is important to clarify a few points of domestic law. The cassation appeal in Polish civil procedure is an extraordinary remedy lodged against a final judgment in a civil case. A cassation appeal lodged by a party may be based upon the following grievances:

(1) a violation of substantive law, through its incorrect interpretation or application;

(2) a violation of procedural law which might have had a substantial impact on the outcome of the case (Article 398 3 of the Code of Civil Procedure).

The Supreme Court may entertain a cassation appeal only if one of the following conditions is fulfilled:

(1) there is an important legal issue at stake in the case;

(2) there is a need to give interpretation of legal provisions raising serious [interpretative] doubts or causing inconsistencies in the case ‑ law in the courts;

(3) the procedure is void;

(4) the cassation appeal is manifestly founded (Article 398 9 § 1 of the Code of Civil Procedure).

The procedure for the examination of cassation appeals is designed to protect public interests and not only the private interests of the relevant party. Examination of the cassation appeal goes beyond the scope of the issues under consideration in the previous stages of the procedure and involves certain new questions, such the existence of inconsistencies in the case ‑ law. At the same time, the examination of the case is limited to specific issues of law and the cassation appeal cannot be based upon questions of facts or assessment. Nonetheless, when determining legal issues the Supreme Court has to take into account the individual circumstances of the case. In this context, there is a dispute among Polish lawyers as to whether the case as examined by the lower courts and the case as examined by the Supreme Court upon cassation appeal is one and the same case (see, for instance, the resolution of the Supreme Court of 5 June 20 08, III CZP 142/07 and the separate opinions attached to it). Under the case-law of the European Court of Human Rights, for the purpose of the Convention the examination of a cassation appeal seems to be considered as a stage in the examination of the same case (see, for instance, the judgment in the case of Bochan v. Ukraine (no. 2) [GC], no. 22251/08 , § § 51-53, ECHR 2015 ).

Article 398 20 of the Code of Civil Procedure stipulates:

“A court to which the case was remitted [ after the Supreme Court allowed a cassation appeal and set aside a second-instance judgment ] is bound by the interpretation of law carried out in this case by the Supreme Court. A cassation appeal agai nst a judgment given after a re ‑ examination of the case following a cassation appeal cannot be based on a grievance formulated contrary to the interpretation of law carried out in this case by the Supreme Court.”

I note that the application of this prov ision in certain cases may be a matter of subjective assessments as to whether a lower court correctly followed the view expressed by the Supreme Court.

4. The reasoning in the present judgment contains a number of inaccuracies. Firstly, paragraph 54 states as follows:

“Even if the remittal was due to the procedural shortcomings (the Court of Appeal found that in the applicant ’ s case there were no grounds for issuing a partial judgment), in the final part of the decision the Court of Appeal stated that, as to the merits of the case, the position of the Opole Regional Court on the substance of the case in its decision of 19 June 2000 had been well-founded.”

This statement is not accurate. The Court of Appeal never stated in its judgment of 15 November 2000 that the position of the Opole Regional Court on the substance of the case in its decisio n of 19 June 2000 had been well ‑ founded. It addressed only one crucial issue concerning the substance of the case, completely refraining from addressing other substantive issues or making a global assessment concerning the Opole Regional Court ’ s position on the substance of the case. When addressing the crucial issue at stake it implicitly approved the view expressed by the Regional Court on this specific issue, stating that this view “finds support in the content of the Agreement between the Governments of the Republic of Poland and the Federal Republic of Germany on the secondment of workers of Polish companies to carry out construction work (Journal of Laws 1998/84, items 474 and 475) as well as in the hitherto interpretation of this agreement in judicial decisions (see, e.g., III A Pa 29/00 WrocÅ‚ aw Court of Ap peal, decision of 31 May 2000)”. (se e paragraph 11 of the judgment).

I note that the scope of this statement and the view expressed in the Court of Appeal ’ s judgment were a restatement of well-establ ished case ‑ law on the issue of the direct applicability of the Agreement between the Governments of the Republic of Poland and the Federal Republic of Germany. This is a very general statement concerning the content of applicable law, which might already have been expressed by the same judges in similar cases.

It is necessary to add that, in the instant case, the issue of the applicability of the Agreement between the Governments of the Republic of Poland and the Federal Republic of Germany was addressed at a subsequent stage of the proceedings by the Supreme Court in its judgment of 29 November 2005, which examined the cassation appeal and remitted the case, and subsequently in the judgment delivered by the Wrocł aw Court of Appeal on 8 December 2006. This is the final determination of the legal issue in question.

It is true that the applicant lodged a second cassation appeal, which was examined by the Supreme Court and dismissed on 14 May 2008. It is important to stress two points in this respect. Firstly, as mentioned above, the cassation appeal is a specific extraordinary remedy in the Polish civil procedure. Secondly, the Supreme Court, referring to Article 398 20 of the Code of Civil Procedure (quoted above), refrained from taking a new position on the issue of the applicability of the treaty, as this question has already been settled earlier.

5. Secondly, t he reasoning states further (in paragraph 56):

“The Court notes that, in consequence, in the decision of 14 May 2008 the Supreme Court had to examine whether the lower courts had correctly applied substantive law”.

This is not fully accurate, as the Supreme Court did not have the power to examine whether the lower courts had correctly applied substantive law in general, but could only address certain grievances concerning the application of substantive law insofar as the legal issues in question had not been addressed in the Supreme Court ’ s judgment of 29 November 2005 (see A rticle 398 20 of the Code of Civil Procedure, quoted above).             

6. Thirdly, the reasoning goes further in paragraph 57:

“The Court therefore concludes that there was a link between the significant elements examined by the Wrocław Court of Appeal dealing with the appeal against the first-instance judgments given in the case and subsequently by the Supreme Court”.

This statement triggers at least three objections. Primo , the test applied is whether a link exists; it is then necessary to identify correctly the judicial decisions that were reached with the participation of the same judge. The crucial question is not whether there was a link between the significant elements examined by the Wrocław Court of Appeal dealing with the appeal against the first-instance judgments in the case and subsequently by the Supreme Court, but whether there was a link between the significant elements examined by the Wrocław Court of Appeal in its judgment of 15 November 2000 dealing with the appeal against the first-instance judgment in the case and the judgment of the Supreme Court of 14 May 2008 examining the second cassation appeal.

Secundo , it is necessary to identify the specific issues which were determined at the two stages. These issues were referred to very generally as the substance of the case and whether the lower courts had correctly applied substantive law , which is a qualification lacking the necessary precision.

Tertio , the two judicial decisions deal with different legal issues of the substantive law that is applicable in the instant case. There is no doubt that there is a certain link between the elements dealt with in the two judicial decisions, in that the issues under consideration are different aspects of the same case. On the other hand, the link is remote, since in its decision of 14 May 2008 the Supreme Court merely stated that at this stage of the proceedings it was legally prevented from reconsidering the issue referred to by the Wrocław Court of Appeal in its judgment of 15 November 2000.

7. Fourthly, paragraph 58 of the judgment states:

“The Court is of the view that this situation is to some extent similar to those it examined in the cases of San Leonard Band Club v. Malta, no. 77562/01, §§ 63- 64, ECHR 2004-IX, and of Toziczka, cited above, §§ 40 43, where the same judges had been called upon to decide whether or not they themselves had committed an error of lega l interpretation or application . ”

There is no doubt that there are certain similarities with the above-mentioned cases, but their nature has not been explained in the reasoning. There is, however, also an important difference: in the instant case the same judges did not have to decide whether or not they themselves had committed an error of legal interpretation or application.

8. To sum up: the crucial criterion applied in the reasoning is the existence of a link between the significant elements examined by the same judge at two different stages of the proceedings. In the instant case the judgment of the Wrocław Court of Appeal of 15 November 2000 determined procedural issues and contained a brief obiter dictum concerning a general point of law, established in the case-law. The decision of the Supreme Court of 14 May 2008 determined different legal issues. A link between the substantive issues actually determined in each judicial decision seems rather remote. Thus, the application of the test formulated in paragraph 50 should have led to the finding of no violation of Article 6 of the Convention in the instant case.

9. The case-by-case approach developed in the Court ’ s case ‑ law undermines legal certainty and, where there has been a violation of the Convention, delays the final examination of the case at domestic level. In many cases it is difficult for the domestic courts and the parties to the proceedings to predict from the outset where the approach developed by the Court will lead. Through such detrimental effects, the test adopted diminishes the effectiveness of the guarantees of Article 6. In my assessment, the test currently applied requires revision. Instead of a case ‑ by ‑ case consideration, it would be preferable to adopt a more principle-based approach.

In so far as possible, a case should be examined by judges who hold no pre-judged views on it. The purpose of an appeal or a cassation appeal is to examine the entire case, or certain aspects of the case, with a “fresh eye” free of predetermined views. This requirement must distinguish between the two premises of the legal syllogism: the major premise (general rules of law) and the minor premise (the individual facts of the case). It is impossible to avoid a judge examining a case without predetermined views on the content of the general rules of law to be applied in a specific case. He must know the law ( iura novit curia ) and he might have applied the same general rules in a number of similar cases, stating his views about their precise content. New important issues of legal interpretation appear in only a limited number of cases, mainly in the so-called “hard cases”. The fact that a judge has already interpreted a specific provision in earlier cases and expressed views as to their correct interpretation in previous cases should not raise doubts as to his impartiality; on the contrary, it may be seen as a factor reinforcing his impartiality. On the other hand, it is true that in judicial application of the law the content of the general rules of law is determined for the purpose adjudicating in the individual factual circumstances of a given case. The content of a general legal rule achieves its final substantiation in the context of specific cases.

When a judge examines a case, be it at first or higher instance, he necessarily takes cognizance of the entire case, with all its factual and legal elements, whatever the scope of the judgment he will subsequently render. The issue of which questions were explicitly addressed by the court is not relevant. A judge necessarily forms certain views, not only about the issues he specifically determines, but also about other issues that he does not have to determine at the specific stage of the proceedings. What matters is the fact that the same case was examined twice by the same judge at different stages of the proceedings. The decisive criteria are the identity of the case and the distinctiveness of the stages in the proceedings.

The identity of the case means that the same judge twice takes a decision concerning or affecting the merits of the same case, i.e. the same legal dispute with the same claims between the same parties. In such a situation there is necessarily a sufficient link between the different elements under consideration at the different stages of the procedure because they are important elements of the same case. This sole fact is a sufficient basis to find a violation of Article 6 of the Convention.

The situation is different if the case is no longer identical at a subsequent stage or if the decisions rendered within the framework of a procedure in the same case concern different issues, such as pre-trial detention and the merits of a criminal case (see, for instance, Hauschildt v . Denmark , application no. 10486/83, § 51). In such situations, it is necessary to look at the links between the issues under consideration .

Furthermore, the other criterion is the distinctiveness of the stages of the proceedings: a judge should not examine the same case at different stages of the proceedings. If certain procedural developments may be regarded as a mere continuation of previous steps so that all of them can be considered as belonging to the same procedural stage, then the questions under consideration do not arise. This may be the case if a party lodges an opposition to a judgment delivered in absentia. The subsequent procedure may be regarded as a second part of the same procedural stage (compare, for instance, the judgment of 10 June 1996 in the case of Thomann v. Switzerland , Reports of Judgments and Decisions 1996-III).

I am aware that the approach proposed here is far from perfect and may raise substantive objections. In any event, in the specific circumstances of the present case there should be no doubt that the approach developed to date is highly problematic.