CASE OF KORZENIAK v. POLAND
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal)
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1953 and lives in Krosno. 6. From 29 April 1997 to 29 April 1999 he was employed by a Polish company which was carrying out construction work in Germany. The Polish workers were employed on the basis of the international agreement signed on 31 January 1990 between Poland and Germany on the secondment of workers of Polish companies to carry out construction work (Umowa między Rządem Rzeczypospolitej Polskiej a Rządem Republiki Federalnej Niemiec o oddelegowaniu pracowników polskich przedsiębiorstw do realizacji umów o dzieło z 31 stycznia 1990 r., Dz.U. 1994, Nr 98, Poz. 474). The rates of the applicant’s pay were determined by an employment contract and the regulations which the contract referred to. 7. On 16 July 1999 the applicant lodged a civil claim against his former employer for payment. He claimed that, instead of the rate of 8 or 8,5 German Marks (DEM) per hour which he had been receiving under his employment contract in the period from 29 April 1997 to 29 April 1999, he should have been receiving a higher rate of pay. Relying on the provisions of the above-mentioned international agreement, he claimed that he should have been receiving a rate comparable to that of the German workers occupying the same positions. 8. On 19 June 2000 the Opole Regional Court gave a partial judgment in which it established that the applicant was entitled to the rates of pay fixed in the employment contract. The court observed that the essential issue in the case was whether the applicant was entitled to a higher rate of pay, equivalent to that paid to the German employees working in similar positions at the material time. It was noted in this connection that the parties had not chosen to regulate the employment contract under German law. Instead Polish labour law was applicable. In so far as the applicant relied on the provisions of the international agreement of 1990 (see paragraph 6 above) and argued that it should serve as the basis for setting his rate of pay, the court observed that this agreement was of a public-law character. Its object and purpose was to regulate relations between Poland and Germany in the construction market with a view to preventing unfair competition by Polish companies setting wages of construction workers working in Germany at too low a level, and to protect Polish workers against being paid too low a rate. 9. The applicant appealed. He argued that the Opole Regional Court had violated the provisions of the Labour Code. In the applicant’s opinion, the court’s finding that the applicant’s rates of pay were fixed in his employment contract was erroneous, because that contract did not contain any rates (only symbols which were not understood by the applicant). Besides, in his view, the court had violated the provisions of the abovementioned international agreement, according to which the rates of the applicant’s pay should be comparable to those received by the German workers occupying the same positions. 10. On 15 November 2000 the Court of Appeal quashed the first-instance partial judgment on account of its procedural shortcomings and remitted the case to the lower court. The Court of Appeal comprised three judges. Judge H.Sz. sat on the bench. He was not a judge rapporteur and he did not preside. 11. The Court of Appeal found that in the applicant’s case there were no grounds for delivering a partial judgment. It noted that a partial judgment could be delivered only when a part or some of the claims in a lawsuit had been sufficiently clarified for the decision. In the applicant’s case there was only one claim and thus there had been no grounds for delivering the partial judgment. In the final part of the written grounds for the judgment the Court of Appeal stated that the position of the Opole Regional Court as to the substance of the case was supported by the wording of the international agreements and existing domestic case-law. This part of the court’s reasoning read as follows: “As to the substantive grounds for the court’s legal view expressed in the judgment under appeal, it should be stated that it 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 Wrocław Court of Appeal, decision of 31 May 2000).” 12. On 10 December 2002 the applicant challenged one of the judges, alleging his partiality. He further requested that the case be transferred to another town because, in his view, the judges were not impartial and the defendant company “had enjoyed considerable influence in Opole.” 13. On 20 March 2003 the Wrocław Court of Appeal dismissed the applicant’s request. 14. On 5 April 2003 the applicant appealed. 15. On 16 January 2004 the Supreme Court dismissed the applicant’s appeal, finding no grounds for the judges of the Opole Regional Court to step down. 16. On 24 May 2004 the Opole Regional Court gave judgment granting the applicant’s claim in part and dismissing the remainder. The Regional Court ordered the defendant company to pay the applicant the sum of 11,934 Polish zlotys (PLN) for unused leave. As to the rate of the applicant’s pay, the court reiterated the reasoning of the judgment of 19 June 2000 and dismissed the claim (see paragraph 8 above). 17. The applicant appealed. 18. On 25 November 2004 the Wrocław Court of Appeal dismissed the appeal. The court accepted the reasoning of the first-instance court. 19. On 20 January 2005 the applicant’s lawyer lodged a cassation appeal on his behalf. 20. On 29 November 2005 the Supreme Court examined the cassation appeal, quashed the challenged judgment and remitted the case to the Court of Appeal. 21. The Supreme Court considered that the Polish-German agreement of 1990 was not a source of universally binding law and did not contain provisions applicable to labour relations. The agreement could not be regarded as constituting the legal basis for claims of employees concerning remuneration for their work. Moreover, Poland’s accession to the European Union did not have an impact on the applicability of that agreement. Furthermore, the European Union law did not apply retroactively to situations predating Poland’s accession. The fact that employees’ claims concerning the applicable minimum wages could not be regarded as having their legal basis in the said PolishGerman agreement did not mean, in the court’s opinion, that those claims could not be raised upon the basis of employment contracts. In the Supreme Court’s view, the Court of Appeal had not sufficiently clarified the meaning of those contracts in the light of statements made by the Polish company concerning the applicant’s employment conditions and the obligations imposed on the company by the provisions of German law to which those statements referred. 22. On 8 December 2006 the Wrocław Court of Appeal, having taken into account the recommendations of the Supreme Court, again dismissed the applicant’s appeal lodged against the Regional Court’s judgment of 24 May 2004. The court reiterated that the applicant was entitled to the rates of pay fixed in his employment contract. 23. On 28 March 2007 the applicant lodged a further cassation appeal with the Supreme Court. He first raised substantive arguments. He averred that the Opole Regional Court had disregarded the provisions of the Labour Code. In the applicant’s opinion, the court’s finding that his hourly rate of pay had been fixed in his employment contract had been erroneous, because that contract had not contained any rates (only symbols which the applicant had not been able to understand). Besides, in his view, the court had disregarded the provisions of the applicable international agreement (see paragraphs 6 and 8 above), according to which the applicant’s rate of pay should have been comparable to that received by the German workers occupying the same positions. He further complained that the appellate court had failed to take heed of the interpretation of the applicable law expressed by the Supreme Court in its previous judgment as to the applicable rate of the applicant’s salary. It was further argued that the court had failed to take into consideration the evidence gathered in the case. The court had also erred when refusing to allow certain requests for evidence to be taken. The applicant further complained that in the written grounds for its judgment the Court of Appeal had failed to provide reasons for which it had disregarded the interpretation of relevant applicable provisions made in the past by the Supreme Court – a substantive question which had been crucial for the outcome of the case. 24. On 14 May 2008 the Supreme Court, sitting as a bench of three judges, dismissed the applicant’s cassation appeal. Judge H.Sz., who had sat on the bench of the Court of Appeal deciding the case on 15 November 2000, had in the meantime been promoted to the Supreme Court. He sat on the bench of the Supreme Court. He was not a judge rapporteur and he did not preside. The Supreme Court noted that the appellate court, contrary to the applicant’s objection, had followed the interpretation of the applicable law expressed by the earlier judgment of the Supreme Court (pronounced on 29 November 2005) given in the same case. In this judgment the Supreme Court had confirmed that the international agreement referred to by the applicant could not be regarded as a legal source of employees’ and employers’ rights and obligations. The appellate court’s decision had followed this view and it had confirmed that the substantive provisions of that agreement had not applied to the setting of the applicant’s rate of pay, which had been fixed by his employment contract. 25. The Supreme Court stressed that in his cassation appeal the applicant raised the same complaint which had already been made in his earlier cassation appeal. This was inadmissible as under section 39820 of the Code of Civil Procedure (see paragraph 33 below) it was not allowed to found a cassation appeal against a judgment rendered after a new examination of a case upon complaints contrary to the interpretation previously established by the Supreme Court dealing with the earlier cassation appeal lodged in the same case. 26. Additionally, the Supreme Court noted that the interpretation made by the lower courts of the applicant’s contract of employment, seen as a whole, had taken into account the applicant’s employer’s declarations submitted to the German authorities and also a wealth of other evidence in so far as it had been relevant for the determination of the applicant’s working conditions and remuneration. 27. The Supreme Court further observed that the applicant’s remuneration had been set at the level of the minimal remuneration of German employees performing similar work determined on the basis of the Law on Collective Bargaining. 28. In so far as the applicant complained in his cassation appeal of the alleged failure of the courts to take further evidence and of the assessment of the evidence they had carried out, those complaints could not be examined in the context of those proceedings. It was not the task of the Supreme Court in cassation proceedings to act as an ordinary court of appeal and to examine issues concerning the admissibility and assessment of evidence and the factual findings made by the lower courts.