CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 janvier 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                         Application No. 26760/95                     by Mikolaj WERNER                     against Poland          The European Commission of Human Rights sitting in private on 19 January 1998, the following members being present:             MM    S. TRECHSEL, President                J.-C. GEUS                E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H. DANELIUS           Mrs   G.H. THUNE           MM    F. MARTINEZ                C.L. ROZAKIS           Mrs   J. LIDDY           MM    L. LOUCAIDES                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA                M. VILA AMIGÓ           Mrs   M. HION           MM    R. NICOLINI                A. ARABADJIEV             Mr    M. de SALVIA, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 15 November 1994 by Mikolaj Werner against Poland and registered on 20 March 1995 under file No. 26760/95;      Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      29 December 1995 and the observations in reply submitted by the      applicant on 27 March 1996 and on 28 January 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Polish citizen born in 1946, is a lawyer residing in Koszalin.        The facts of the case, as submitted by the parties, may be summarised as follows:        On 15 December 1993 the Koszalin District Court (S*d Rejonowy) appointed the applicant to the function of trustee in bankruptcy of a limited liability company H. located in Koszalin.        On 19 March 1994 judge M., who supervised the bankruptcy proceedings, requested 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 his employees and that the court had found against him.   Thus he did not comply with the legal requirements of a trustee of an estate in bankruptcy as 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; thus he had not carried out his obligations as a trustee in a satisfactory manner as required by the law.        On 21 March 1994 the Koszalin District Court, in a panel composed of three judges, including judge M., at a session held in camera, dismissed the applicant and appointed a new trustee.   No party to the bankruptcy proceedings attended the hearing and the applicant was, likewise, not present.        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 trustee, the law was not clear as to whether an appeal lay against that part of the decision by which he had been dismissed.   Furthermore, his good reputation as a lawyer and as an employer had been damaged both by the contents of judge M.'s motion and by the District Court's decision to dismiss him.   He submitted 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 allegation that he was untrustworthy and that he had not been carrying out his duties satisfactorily.   He further submitted that judge M., considering her own claim, had acted both as a claimant and as a member of the Court, which called into question the impartiality of the Koszalin District Court.        On 30 March 1994 the Koszalin District Court rejected the applicant's appeal.   The Court considered that the Bankruptcy Act did not provide for an appeal against dismissal of a trustee in bankruptcy. Judge M. was entitled to participate in the court panel as the Bankruptcy Act excluded participation of a judge-supervisor only where an appeal lay against a decision of that judge.        The applicant appealed to the Koszalin Regional Court (S*d Wojewódzki), submitting that the District Court was wrong to hold that there was no appeal against its decision.   He reiterated that he was deprived of a possibility to have the allegations against him reviewed by a court.        On 8 July 1994 the Koszalin Regional Court dismissed the applicant's appeal.   The Court considered that, according to the Bankruptcy Act, no appeal lay against the decision by which a previous trustee was dismissed and a new one appointed.        On 29 April 1996 the Koszalin Regional Court convicted the applicant of misappropriation of the "H." company's assets, sentenced him to one year's imprisonment and suspended the execution of the sentence for a period of two years.        On 26 September 1996 the Koszalin Court of Appeal (S*d Apelacyjny) quashed this judgment and ordered that the case be reconsidered.     COMPLAINTS        The applicant complains under Article 6 para. 1 of the Convention that he was denied access to a court.   He contends that the motion to dismiss him from the paid function of trustee in bankruptcy, submitted by judge M., contained disparaging statements and unfounded allegations against him.   As no appeal is possible against this decision, he was deprived of any possibility of challenging these allegations.   His dismissal has become publicly known and caused numerous unfavourable comments as regards his personal qualities and professional skills as a lawyer.   Thus his right to enjoy a good reputation has suffered.        The applicant complains under Article 6 para. 1 of the Convention that in the proceedings relating to his dismissal, the supervising judge M. had acted both as a claimant and as a judge, when participating in a court panel which decided to dismiss him.   This called into question the impartiality of the Koszalin District Court.        Also under Article 6 para. 1 of the Convention he complains that the court session at which he was dismissed was held in camera.   Thus he did not have any possibility of defending himself against the allegations and of presenting his arguments to the court.        He complains under Article 3 of the Convention that these allegations amounted to degrading treatment.        The applicant further complains under Article 13 of the Convention that he had no effective remedy to complain about his rights under Articles 3 and 6 being breached by persons acting in an official capacity.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 15 November 1994 and registered on 20 March 1995.        On 28 June 1995 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 29 December 1995, after an extension of the time-limit fixed for that purpose.   The applicant replied on 27 March 1996.   On 18 June 1996 the Government submitted additional observations to which the applicant replied on 28 January 1997.     THE LAW   1.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that he was denied access to court to refute disparaging statements and unfounded allegations against him contained in judge M.'s motion for his dismissal from the function of trustee in bankruptcy.        Article 6 para. 1 (Art. 6-1) of the Convention reads:        "1.   In the determination of his civil rights and      obligations ... everyone is entitled to a fair ... hearing      ... by an ... impartial tribunal ..."   a)    The Government concede that the applicant exhausted relevant domestic remedies in respect of his dismissal.   However, he failed to exhaust domestic remedies as regards the allegedly disparaging statements of judge M.   It was open to him to institute   proceedings before a civil court pursuant to Articles 23 and 24 of the Civil Code, requesting that these statements be rectified and apologised for and, in particular, that the judge make a public statement to the effect that they were erroneous.   If the applicant could show that he suffered financial prejudice as a result thereof, compensation could be awarded. The Government further submit that the fact that the person who made the allegedly disparaging statements acted in his or her official capacity does not amount to any impediment to such action being lodged. The Government further observe that the applicant did not adduce any evidence in support of his assertion that the statements concerned damaged his reputation.   They finally observe that, in fact, in the light of the applicant's criminal conviction for misappropriation of assets of the "H." company, which came to light following the Government's inquiry into the present case, the judge's submissions cannot be seen as unjustified, and that the applicant's argument to this effect is   unfounded.   Thus, it is not conceivable that an   action by the applicant for protection of his personal rights pursuant to Articles 23 and 24 of the Civil Code would stand any chances of success before the court.   They conclude that the applicant did not comply with the requirements of Article 26 (Art. 26) of the Convention.        The applicant submits that the Government's position is contradictory in that they state that the domestic remedies concerning the same complaint were in part exhausted and in part not.   His appeal against his dismissal related to the cause of damage to his reputation, i.e. to the judge's allegations, and to the result which they had caused, i.e. to his dismissal.   He emphasises that by way of appeal, he sought a possibility of refuting the statements before the court in the same proceedings which concerned his dismissal.   Had there been an appeal available against his dismissal, there would have been a possibility of a judicial review of both the cause and the result.   The civil claim under Articles 23 and 24 of the Civil Code relied on by the Government constitutes an entirely separate legal basis for seeking protection of reputation.   If the Government's argument was accepted, he would have to institute separate proceedings, which would relate only to the protection of his reputation.   This would put an undue burden on him.        The Commission recalls its case-law, according to which the burden of proving the existence of available and sufficient remedies lies upon the State invoking the rule (N. 23414/94, Dec. 28.11.95, D.R. 83-A, p. 31).          The Commission first observes that no appeal lay to a higher court against the Koszalin District Court's decision to dismiss the applicant.   It further notes that the remedy referred to by the Government would necessitate that the applicant institute separate proceedings before a civil court.   The Government have not shown that there is a remedy available under Polish law which would encompass an examination of both the allegations against the applicant put forward by judge M. and of the well-foundedness of his dismissal.   In these circumstances the Commission considers that it has not been established that the applicant had an effective remedy at his disposal.        It follows that this part of the application cannot be rejected for non-compliance with the requirement to exhaust domestic remedies.   b)    As regards the applicability of Article 6 para. 1 (Art. 6-1) of the Convention to the proceedings concerned, the Government first recall that Article 6 (Art. 6) is applicable where there is a serious and genuine dispute relating to rights and obligations recognised at least on arguable grounds in domestic law and that the outcome of the dispute must be directly decisive for the rights or obligations concerned.        The Government further submit that the jurisdiction of the court in the bankruptcy proceedings encompasses all aspects of the liquidation of assets of the bankrupt company.   The trustee is the court's assistant appointed to manage the estate in bankruptcy since the court cannot assume these duties.   Therefore the trustee performs a public function and he is supervised by the court in its exercise. Polish law does not set out the requirements that must be satisfied by a candidate for a post of trustee.   The decision is to be taken by the court following an appraisal of the competence of the person concerned. As a   consequence, as the law entrusts the court with a duty to appoint the trustee, it is likewise entitled to dismiss him or her if the relevant duties are not performed properly.        The Government further refer to the applicant's criminal conviction for misappropriation of assets of the bankrupt company, pronounced on 29 April 1996.   This proves, they emphasise, that the applicant's dismissal was well-founded, and that the judge's submissions in her motion to the court cannot be considered unjustified.        The Government consider that the assessment made by the court in the present case is similar to that which was examined by the European Court of Human Rights in the Van Marle judgment (Eur. Court HR, Van Marle v. the Netherlands judgment of 26 June 1986, Series A no. 101) in that the examination and evaluation of professional competence by a public authority is a matter which cannot be brought under the notion of civil rights.        The Government further emphasise that neither appointment nor dismissal of the trustee are governed by the provisions of labour law. In particular, the provisions of the Labour Code are not applicable thereto.   It is only the factual aspect of the trustee's duties that can be considered comparable to an employment, not the legal one. Further, the remuneration of a trustee is fixed on the basis of the Minister of Justice's by-law enacted pursuant to the Bankruptcy Act.        The Government further submit that there is no civil right or claim to be a trustee in bankruptcy.   Even assuming that such right exists in domestic law, the Convention does not guarantee a fair hearing in the determination of all the rights and obligations which an individual might arguably claim under domestic law.   In the present case there is no possibility for anyone to exercise a right "to be a trustee" and no corresponding obligation of the State to ensure that such right be exercised.        The Government conclude that in view of the special character of the legal rules pertaining to the function of trustee in bankruptcy, Article 6 (Art. 6) of the Convention is not applicable to the proceedings relating to his dismissal as they do not concern the applicant's civil rights and obligations within the meaning of this provision.        The applicant submits that the scope of Article 6 (Art. 6) of the Convention extends to the determination of civil rights and obligations and of criminal charges.   This should be understood in such a manner that the proceedings which are not covered under the criminal head of this provision fall within its scope of application under its civil head.   Thus, cases concerning civil rights, as well as rights originating from the provisions of administrative law, labour law, intellectual property law, family law and, ultimately, bankruptcy law, would be subject to the guarantees of this provision of the Convention. The restrictive interpretation of the scope of application of Article 6 (Art. 6) of the Convention, relied on by the Government, would run counter to   the Convention organs' case-law.   The conclusion that there are legal relations which do not fall within the scope of either of the domains of Article 6 para. 1 (Art. 6-1) would not be compatible with the Convention's character and purpose.        The applicant emphasises that the Government failed to indicate any procedure, either of a judicial or a non-judicial character, in which he could seek redress.   He further submits that the Government's submissions, in their part relating to his criminal conviction, contain a negative assessment of his personal qualities.   He emphasises that the central issue of the present case is the complaint about his rights being breached, not the assessment of him as a person.   He states that he did not participate in the enquiry concerning the present case, referred to by the Government.   He finally submits that the Government's   argument based on his criminal conviction amounts to defamation as on 26 September 1996 the Court of Appeal quashed this judgment.   Moreover, the charges against him in the criminal proceedings do not correspond to the contents of judge M.'s motion.        The Government further address the question of whether the Koszalin District Court was acting as a court within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention when it decided on the applicant's dismissal.   They submit that in the bankruptcy proceedings the court, when dismissing the applicant, exercised its discretionary power with which it was entrusted by the relevant legal provisions. The court did not act in its judicial capacity in which it is called upon to rule on civil claims submitted by parties to proceedings.   It is obvious that the court's jurisdiction in the bankruptcy proceedings is of an administrative character and, as such, includes the supervision of the acts of a trustee, acting as a public organ.   The Government thus state that the nature of relations between the court and the trustee in the bankruptcy proceedings must lead to the conclusion that the court in the proceedings concerned   was not carrying out any judicial functions.        The applicant submits that the court acted pursuant to the Bankruptcy Act, which entrusts the courts with the handling of bankruptcy cases.   The procedural provisions applicable are those of a judicial procedure.   The applicant concludes that the court was acting in its judicial capacity.        The Commission considers that this part of the application raises serious issues of fact and law under the Convention the determination of which should depend on an examination of the merits.   It follows that this part of the application cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.   2.    The applicant complains under Article 3 (Art. 3) of the Convention that the allegations contained in the judge's motion for his dismissal amounted to degrading treatment.        The Commission recalls that according to the case-law of the Convention organs, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Art. 3) of the Convention (Eur. Court HR, Ireland v. United Kingdom judgment of 18 January 1979, Series A No. 25, p. 65, para. 162).   In the present case the treatment complained of consisted in the judge's disparaging submissions in the motion for the applicant's dismissal from the function of trustee in bankruptcy.   The Commission   considers that the treatment complained of did not reach the threshold of severity required to bring the matter within the ambit of Article 3 (Art. 3) of the Convention.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant further complains under Article 13 (Art. 13) of the Convention that he had no effective remedy to complain about his rights under Article 3 (Art. 3) being breached.   However, the case-law of the Convention organs establishes that Article 13 (Art. 13) does not require a remedy in domestic law for all claims alleging a breach of the Convention; the claim must be an arguable one (Eur. Court HR, Boyle and Rice v. United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, para. 52). In the light of the above conclusion concerning the applicant's complaint under Article 3 (Art. 3) of the Convention, the Commission finds that the applicant does not have an arguable claim of a breach of this provision which warrants a remedy under Article 13 (Art. 13). This part of the application must, therefore, also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicant finally complains under Article 13 (Art. 13) of the Convention that he had no effective remedy as regards his complaint under Article 6 (Art. 6) of the Convention.   The Commission recalls that where the right claimed is of a civil character the guarantees of Article 13 (Art. 13) are superseded by those of Article 6 para. 1 (Art. 6-1) (No. 13021/87, Dec. 8.9.88, D.R. 57 p. 268).   Therefore no separate issue arises in connection with this complaint.        For these reasons, the Commission, by a majority,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaint that he was denied access to a court      to challenge his dismissal from the function of manager of      the estate in bankruptcy;        DECLARES INADMISSIBLE the remainder of the application.               M. de SALVIA                         S. TRECHSEL           Secretary                            President       to the Commission                    of the Commission