WNUK v. POLAND
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
The applicant, Ms Mariola Wnuk, is a Polish national who was born in 1977 and lives in Trzebnica. The applicant lodged with the Wrocław Regional Court an action for payment against the State Insurance Company (“PZU”). On 8 October 1999 the Regional Court partly allowed the applicant’s claim. She appealed. On 29 March 2000 the Wrocław Court of Appeal slightly increased the amount awarded to the applicant. The applicant lodged a cassation appeal with the Supreme Court, alleging, inter alia, erroneous assessment of evidence and application of incorrect criteria by the lower courts in respect of the value of her claim. On 8 May 2002 the Supreme Court refused to entertain the cassation appeal. It relied on a provision of the newly amended Code of Civil Procedure (which entered into force on 1 July 2000) allowing it to leave without examination manifestly ill-founded appeals or appeals in cases where no serious legal issue arises. The decision was taken by a single judge sitting in camera. The written reasons provided as follows: According to Article 393 of the Code of Civil Procedure, when the challenged judicial decision does not manifestly breach the law or the proceedings are not invalid in law (§ 2), the Supreme Court may refuse to entertain a cassation appeal if there is no appearance of a significant legal issue in the case, there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law or the cassation appeal is manifestly ill-founded (§ 1). (...) In the present case none of the circumstances set out in Article 393 § 2 was present and consequently the Supreme Court, having considered the grounds set out in § 1, found it justified to refuse to entertain the cassation appeal. On 11 October 2002 the applicant lodged a constitutional complaint with the Constitutional Court, alleging, inter alia, a breach of her right of access to court and to a fair hearing on account of the retrospective application of new Article 393 of the Code of Civil Procedure to cassation appeals lodged before its entry into force. On 31 March 2005 the Constitutional Court delivered judgment no. SK 26/02, having joined several complaints, including the applicant’s complaint, in the same proceedings (see domestic law below). A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a secondinstance court. A party had to be represented by an advocate or a legal adviser. Article 3931 of the Code of Civil Procedure as applicable at that time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: 1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” Article 3933 specified the requirements of a cassation appeal. It read in its relevant part: “§ 1. A cassation appeal should include: 1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only; 2) an indication of the grounds for the cassation appeal; 3) arguments showing that its examination would be justified; 4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.” Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find non-conformity with the law, it dismissed the cassation appeal. Pursuant to Article 3937 a cassation appeal, in principle, was examined during a hearing by a panel of three judges; the court could, however, reject a cassation appeal on formal grounds at a sitting. The judgment or decision had to be accompanied by written reasons. On 24 May 2000 a law was enacted amending the Code of Civil Procedure. It entered into force on 1 July 2000. It introduced, inter alia, the following provision (amended Article 393) – the so-called “pre-judgment” (preliminary assessment of a cassation appeal): “§ 1. The Supreme Court may refuse to entertain the cassation appeal, if: 1) there is no appearance of any significant legal issue in the case, 2) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law, 3) the appeal is manifestly ill-founded. § 2. Paragraph 1 shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law.” Pursuant to amended Article 3937 the decision to refuse to entertain a cassation appeal or to reject it on formal grounds could be taken in camera in a single judge formation. Although the legal provisions did not expressly provide for such a possibility, usually the written reasons accompanying such decisions were limited to a simplified, schematic formula which did not contain any legal analysis, did not indicate the specific grounds for the decision, did not invoke grounds of appeal and did not refer to any facts or circumstances which would allow the identification of a particular case. On 6 February 2005 new provisions on a “cassation complaint” came into effect, replacing the provisions governing the cassation appeal. In its judgment of 31 March 2005 (SK 26/02) the Constitutional Court examined a number of constitutional complaints challenging the provisions of Article 393 of the Code of Civil Procedure. The Constitutional Court held that although the Constitution did not guarantee a right to cassation as such, the fact that it was provided for by the Code of Civil Procedure meant that it had to meet the requirements of the rule of law and procedural justice. The Constitutional Court observed, inter alia, that certain terms describing the conditions which a cassation appeal had to meet under Articles 393 et seq. of the Code (“significant legal issue”, “provisions raising serious doubts or causing discrepancies in the courts’ case-law”, “arguments showing that examination of the cassation appeal would be justified”) were drafted in the broadest terms. It noted that the judicial practice regarding their application had given rise to serious interpretational difficulties and discrepancies in the caselaw of the Supreme Court. The Constitutional Court considered the relevant requirements of Article 393 and their interpretation by the Supreme Court to be vague and subjective and, in practice, known exclusively to the Supreme Court but not to those who wished to lodge a cassation appeal. According to the Constitutional Court, if the conditions for admissibility of a claim (preliminary assessment of a cassation appeal) were formulated in imprecise terms, the right of access to a court could not be exercised effectively because of the risk of arbitrariness of the assessing body. In this context the court criticised, in particular, the practice of “simplified reasons”. It held that the use of open-ended concepts by the legislator could not be considered, in itself, as unconstitutional, as it allowed the courts a certain flexibility, to better tailor their decisions to circumstances at hand. However, in such case the obligation to substantiate the legal norm was shifted to the stage of its application. This gave the courts a certain discretion which was not to be confused with an absolute freedom from external supervision. Consequently, a general and imprecise procedural clause required a strong justification and indication of specific circumstances. The practice of formulaic justification in the preliminary assessment of a cassation appeal created a situation where nobody could identify how, if at all, the Supreme Court had performed the necessary assessment to substantiate those vague terms. The case-law providing guidance on their application was thus practically non-existent. The court informed the addressee of its decision that the requirements of the given article had not been met, but did not indicate any circumstances which justified this conclusion. As a result, a principle of trust has been breached. Moreover, it was impossible for lawyers in general to recognise the Supreme Court’s understanding of those requirements for the purpose of effectively lodging a cassation appeal in the future. Consequently, the “pre-judgment” did not guarantee procedural predictability to the party, who has lodged a cassation appeal meeting all formal requirements. The right of access to a court had thus been transformed into a pretence of this right. Nevertheless the Constitutional Court found that it was the practice of the Supreme Court that deserved disapproval and not the relevant provisions, and the wording of those provisions could not be considered unconstitutional. In this context the court observed that the practice was not uniform and certain chambers of the Supreme Court justified their decisions in a much more elaborate and substantive way. The court further observed that the challenged provisions had already ceased to exist prior to the delivery of the present judgment. Accordingly, the Constitutional Court refused to decide on the compatibility of those provisions with the Constitution and discontinued the proceedings in this respect. Article 79 § 1 of the Constitution, which entered into force on 17 October 1997, provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” Article 190 of the Constitution, insofar as relevant, provides as follows: “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court, ... shall be published without delay. 3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ... 4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.” Article 39 of the Constitutional Court Act reads: “1. The Court shall, at a sitting in camera, discontinue the proceedings: 1) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible; 2) in consequence of the withdrawal of the application, question of law or constitutional complaint; 3) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the Tribunal. 2. If these circumstances come to light at the hearing, the Tribunal shall take a decision to discontinue the proceedings. 3. Item 1 (3) of the present Article does not apply if giving a decision on the compatibility with the Constitution of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights.” Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution. Such a request can be lodged with the competent court within one month from the date of the judgment of the Constitutional Court.