JANUSZEWSKI AND WICHERKIEWICZ v. POLAND
Inadmissible
Matti Pellonpää
The applicants are Polish nationals. The first applicant was born in 1942, the second applicant was born in 1950. They both live in Warsaw. They are represented before the Court by Mr Ireneusz Zieliński, a lawyer practising in Warsaw. A. s, may be summarised as follows: The applicants are two businessmen running a non-commercial partnership (spółka cywilna). On an unspecified date in 1993 a trustee of an estate of a certain insolvent company sued the applicants in the Rzeszów Regional Court (Commercial Division) (Sąd Wojewódzki - Wydział Gospodarczy) for payment of a debt. On a further unspecified date the applicants filed a counter-claim. On 9 June 1994 the court held a hearing. During the hearing the applicants requested the court to fix a new hearing date for the end of the fruit season. The court granted their request and listed the next hearing for 8 September 1994, which was duly recorded in the minutes. Subsequently, during the same hearing, the applicants also requested the court to synchronise this hearing with a hearing before the same court, which was to be held in another case to which the applicants were parties. On 8 September 1994 the applicants were not present at the hearing as they considered that a summons should be served on them in order to confirm the hearing date. On 22 September 1994 the court gave judgment ordering the applicants to pay the sum sought by the plaintiff. It rejected their counter-claim. A copy of the judgment was not served on the applicants. They became aware of the judgment and its content as late as 11 October 1994. On this date they filed an appeal and a request to grant them retrospective leave to appeal out of time. They submitted that, to their understanding, on 9 June 1994 the court had not definitely fixed a new hearing date and therefore they had waited for a formal notification. The applicants also requested the court to rectify the minutes of the hearing of 9 June 1994 by inserting the following paragraph: “The court revises its order concerning the date of the next hearing and it will fix the date ex officio, synchronising it with a hearing in a case no. ... . The court shall notify the parties of that date.” On 29 November 1994 the Rzeszów Regional Court dismissed the applicants' request for leave to appeal out of time. The court found that the minutes of the hearing had unambiguously indicated that the date of the next hearing had been fixed for 8 September 1994 and the court had correctly considered that the applicants had been duly notified of the hearing. The court also took into account the fact that the plaintiff had had no doubts as to the date of the hearing in question. Moreover, the applicants had been represented by a lawyer and any potential misunderstanding could have not been considered as a plausible justification for their failure to appeal within the prescribed time-limit. The applicants appealed against this decision. On 28 April 1995 the Rzeszów Court of Appeal (Sąd Apelacyjny) upheld the contested decision. The court observed that a party to the proceedings was expected to act with all due diligence and if the applicants had had any doubts as to the definite hearing date, they could easily have verified them. On 28 February 1995 a single judge, sitting as the Rzeszów Regional Court dismissed the applicants' request to rectify the minutes of the hearing. The court based its decision on the same grounds as those contained in the decision dismissing the applicants' request for leave to appeal out of time. On 10 April 1995 the applicants' further appeal was dismissed by the same court, sitting as a panel of three judges. Subsequently, the applicants unsuccessfully requested the Minister of Justice for leave to file an extraordinary appeal. In letters of 19 January 1995 and of 17 March 1995 the Minister informed them that he would not examine the requests as both the proceedings concerning their request for leave to appeal out of time and the proceedings relating to their request for rectification of the minutes were still pending. In a letter of 31 October 1995 the Minister informed them that he could not rule on their request for leave to file an extraordinary appeal in respect of the judgment of 22 September 1994 because such a leave could not be granted in a commercial case after the expiry of six months from the date on which the judgment had become final. In respect of the second decision, the Minister found that there was no basis for granting the applicants leave to file an extraordinary appeal. B. Relevant domestic law and practice Section 149 § 2 of the Code of Civil Procedure reads, insofar as relevant: “The parties and the [other] persons concerned shall be notified of a hearing date; such notification is effected either by service of a summons or [in case of an adjournment of a hearing] by fixing a date during the hearing. A summons shall always be served on the party which has been absent at the hearing ... .” Section 168 § 1 of the Code of Civil Procedure reads, insofar as relevant: “If the party to proceedings fails to comply with the prescribed time-limit without its fault, the court shall, on that party's request, grant leave to appeal out of time ... .”