CASE OF WERNER v. POLAND
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
Antonio Pastor Ridruejo
9. On 15 December 1993 the Koszalin District Court appointed the applicant to the function of a judicial liquidator of a limited liability company H. located in Koszalin. 10. On 19 March 1994 the insolvency judge M. requested the commercial division of the Koszalin District Court to dismiss the applicant from his function. She submitted that the applicant had been involved in civil proceedings relating to his failure to pay salaries to employees of a company that he owned and that the court had found against him. Therefore he did not comply with the legal requirements that a judicial liquidator had to satisfy since he could not be considered trustworthy. Furthermore, until the end of January 1994 he had failed to give notice to all the employees of the H. company. Consequently, he had not been performing his obligations in a satisfactory manner as required by law. 11. On 21 March 1994 the Koszalin District Court, at a session held in camera, dismissed the applicant and appointed a new liquidator. The insolvency judge sat on the bench composed of three professional judges that gave this decision. No party to the insolvency proceedings attended the session and the applicant was, likewise, not present, not having been informed of the session or summoned to attend it, as the law did not provide for it. 12. On 28 March 1994 the applicant appealed against this decision. He submitted that, while it was true that no appeal could be filed against the decision to appoint a new liquidator, the law was not clear as to whether an appeal was available against his dismissal from his function. Furthermore, his good reputation as a lawyer and as an employer had been damaged both by the contents of judge M.’s motion of 19 March 1994 and by his subsequent dismissal. He argued that certain statements in the motion were incorrect as to the facts. Therefore he had to lodge an appeal in order to challenge them. He contested both the allegations that he was untrustworthy and that he had not been carrying out his duties properly. He further submitted that the insolvency judge, considering her own motion for his dismissal, had acted both as a claimant and as a member of the court, which called into question the court’s impartiality. 13. By a decision of 30 March 1994 the Koszalin District Court rejected the applicant’s appeal. The court considered that the Insolvency Act did not provide for an appeal against a dismissal of the judicial liquidator. Judge M. was entitled to sit on the bench of the commercial court, deciding about the applicant’s dismissal, because the Insolvency Act excluded participation of the insolvency judge in that court only in cases in which an appeal was available against a decision of that judge given in the insolvency proceedings. 14. The applicant appealed to the Koszalin Regional Court, submitting that the District Court was wrong to hold that there was no appeal against his dismissal. He reiterated that he had been denied a possibility to have the allegations against him reviewed by an impartial court. 15. On 8 July 1994 the Koszalin Regional Court dismissed the applicant’s appeal, considering that under the Insolvency Act, no appeal was possible against a decision by which a liquidator was dismissed and a new one appointed. 16. On 29 April 1996 the Słupsk Regional Court convicted the applicant of misappropriation of the H. company’s assets, sentenced him to one year’s imprisonment and stayed the enforcement of the sentence for two years. 17. On 26 September 1996 the Koszalin Court of Appeal quashed this judgment and ordered that the case be reconsidered. 18. On 10 March 1997 the Słupsk Regional Court convicted the applicant of misappropriation of the assets of H. company, sentenced him to one year imprisonment and stayed the enforcement of the sentence for a probationary period of one year. 19. On 16 October 1997 the Gdańsk Court of Appeal upheld this judgment. 20. The Ordinance of the President of Republic of Poland of 24 October 1934 on Insolvency Act, as amended, sets out the rules governing insolvency proceedings. Article 1 of the Insolvency Act, insofar as relevant, provides: “1. Any business enterprise which is unable to pay its debts shall be declared insolvent.... 3. Any public enterprise, co-operative ... [or] joint-stock company shall be declared insolvent if its assets are not sufficient to cover its liabilities." 21. According to Article 8 of the Insolvency Act, proceedings relating to an insolvency petition shall be instituted before the district commercial court, sitting as a bench of three professional judges, in whose jurisdiction the insolvent debtor has its registered office. 22. Pursuant to Article 14 of the Insolvency Act, the commercial court in insolvency proceedings shall call on creditors to submit their claims within a fixed time-limit and assign the insolvency judge to the case. The insolvency judge shall, first, appoint the judicial liquidator of the company, who shall take possession of the insolvent company’s assets and, subject to certain prior decisions of the insolvency judge, distribute it among creditors so as to ensure that their debts be paid to the highest possible degree. The judge shall conduct the subsequent insolvency proceedings, supervise the actions of the liquidator of the company and determine in which instances the liquidator shall not be authorised to act without the judge’s prior permission. 23. According to Article 60 of the Insolvency Act, the liquidator alone has the capacity to sue or to be sued in all proceedings concerning claims against an insolvent estate.