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THIRD
SECTION
CASE OF
BRUDNICKA AND OTHERS v. POLAND
(Application
no. 54723/00)
JUDGMENT
STRASBOURG
3
March 2005
FINAL
03/06/2005
In the case of Brudnicka and Others v. Poland,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr G.
Ress, President,
Mr I. Cabral Barreto,
Mr R.
Türmen,
Mr J. Hedigan,
Mrs M. Tsatsa-Nikolovska,
Mr K.
Traja,
Mr L. Garlicki, judges,
and
Mr V. Berger, Section Registrar,
Having
deliberated in private on 1 February 2005,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 54723/00) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by sixteen Polish nationals, Irena Brudnicka,
Maria Janicka, Anna Korzeniowska, Gabriela Łastowska, Mieczysław
Okupiński, Bernadeta Olesz, Krystyna Ostrzyniewska, Stefania
Subicka, Urszula Lejbschand, Celina Wawrzak, Anna Szpilman, Maria
Pacek, Bożena Kolberg, Leonarda Cikota, Alicja Szczęśniak
and Maria Sobocińska (“the applicants”), on 11
January 2000.
- The
applicants were represented by Mrs R. Orlikowska-Wrońska, a
lawyer practising in Sopot. The Polish Government (“the
Government”) were represented by their Agent, Mr K. Drzewicki,
followed by Mr J. Wołąsiewicz, of the Ministry of
Foreign Affairs.
- The
applicants alleged, in particular, a violation of Article 6 § 1
of the Convention.
- A
hearing on the admissibility and merits (Rule 54 § 3 of the
Rules of Court) took place in public in the Human Rights Building,
Strasbourg, on 16 January 2003 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr K. Drzewicki,
Agent,
Mrs R. Kowalska,
Mr E. Jabłoński,
Mr J. Młynarczyk, Advisers;
(b) for the applicants
Mrs R.
Orlikowska-wrońska, Counsel,
Mr Z. Brodecki,
Adviser,
Mr P. Rybiński, Assistant.
- By
a decision of 16 January 2003, the Chamber declared the application
admissible with regard to Maria Janicka, inadmissible with regard to
Maria Pacek, Bożena Kolberg, Leonarda Cikota, Alicja Szczęśniak
and Maria Sobocińska and admissible, without prejudging the
merits, with regard to Irena Brudnicka, Anna Korzeniowska, Gabriela
Łastowska, Mieczysław Okupiński, Bernadeta Olesz,
Krystyna Ostrzyniewska, Stefania Subicka, Urszula Lejbschand,
Celina Wawrzak and Anna Szpilman, and joined the question of
their status as victims to the merits.
- The
applicants and the Government each filed observations on the merits
(Rule 59 § 1). The latter also filed additional observations on
6 August 2003 on the admissibility of the application.
- On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1), but this case remained with the Chamber
constituted within the former Third Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants are relatives of sailors who lost their
lives in a shipwreck.
- On
14 January 1993 the vessel Jan Heweliusz sank in the Baltic
Sea. It belonged to the company Polskie Linie Oceaniczne, whose
registered office is in Gdynia, and was operated by the company
Euroafrica, with its registered office in Szczecin. Of the 35
passengers and 29 crew members on board, 55 died in the shipwreck and
9 survived.
- Several
commissions of inquiry were set up to establish the cause of the
shipwreck.
The
commission set up by the Prime Minister suspended its inquiry in
March 1993 without producing a report.
The
commission set up by the Ministry of Transport and Maritime Affairs
submitted a report in April 1993 in which it found that the shipwreck
had been due to force majeure.
The
special commission set up within the National Labour Inspectorate
concluded in May 1993 that the owner of the vessel and the crew were
jointly responsible.
- The
Maritime Chamber attached to the Szczecin Regional Court (Izba
Morska przy Sądzie Wojewódzkim) instituted
proceedings seeking to establish the cause of the shipwreck. The
relatives of the crew members who had died took part in the
proceedings.
- On
11 January 1994 the Maritime Chamber delivered its decision,
attributing liability to the ship's captain, its technical team, the
Polish Shipping Registry, which had inspected the vessel before the
disaster, and the Polish rescue services.
- On
18 November 1994 the Maritime Appeals Chamber of the Gdańsk
Regional Court (Odwoławcza Izba Morska przy Sądzie
Wojewódzkim), sitting in Gdynia, set aside the decision of
11 January 1994 and referred the case to the Maritime Chamber for a
fresh examination.
- The
Gdańsk Maritime Chamber, sitting in Gdynia, examined the case
between 20 March 1995 and 9 February 1996. On 23 February 1996 it
gave a decision in which it held that the crew had been partly
liable, that the vessel's operator had been at fault for failing to
undertake the necessary repair work, and that the natural elements
had also played a part.
- The
operator, the ship's owner, the representative of the Ministry of
Transport and Maritime Affairs and the other parties to the
proceedings appealed. In a decision delivered on 26 January 1999 and
served on the parties on 19 November 1999, the Gdańsk Maritime
Appeals Chamber partly upheld the finding of liability with regard to
the operator. It also upheld the finding that certain acts of
negligence on the part of the crew, in particular the captain and the
chief officer, had contributed to the disaster, as had the fact that
the rescue operation had not been properly coordinated.
The
relevant passages of the decision read as follows:
page
2
“The most likely cause of the capsize of the car
and train ferry the Jan Heweliusz and of the death by drowning
and hypothermia of 27 passengers and 18 crew members and the
disappearance of 8 passengers and 2 crew members was:
...
the fact that the ferry turned into the wind while
unevenly ballasted (towards the port side), resulting in the shifting
of the ballast towards the port side; violent gusts of wind on that
side; the shifting of the vehicles' loads and the vehicles themselves
to the port side; the discharge of bilge water to the outside on the
port side of the ferry.”
page
4
“The Jan Heweliusz left the port of
Świnoujście at 11.35 p.m. on 13 January 1993, bound for the
port of Ystad, in an unseaworthy condition, as the safety
requirements were not met in the following respects:
1. measures to stabilise the vessel in the
event of an accident;
2. measures to ensure that the rear door was
watertight;
3. the securing of the vehicles to the deck
in accordance with maritime best practice.”
page
6
“Irregularities have been found in the conduct of:
1. the operator of the Jan Heweiusz,
Euroafrica Shipping Lines, a limited liability company based in
Szczecin, which allowed the ferry to be operated while in an
unseaworthy condition owing to the damage sustained to the door on 10
January 1993 in Ystad, following which its class had been suspended
and the safety certificate had ceased to be valid, in that it
(a) omitted to declare the ferry to the
Szczecin Maritime Bureau for an interim inspection and to the Polish
Shipping Registry for immediate inspection;
(b) failed to take the agreed action to
repair the rear door in the proper manner;
2. the captain of the above-mentioned ferry,
a Master Mariner ... who, on 13 January 1993, left the port of
Świnoujście, bound for the port of Ystad, while the ferry
was in an unseaworthy condition, in that he
(a) omitted to declare the ferry to the
Consulate in Malmö and later to the Szczecin Maritime Bureau for
an interim inspection following the damage sustained to the rear door
on 10 January 1993 in Ystad, the suspension of class after the
accident and the cessation of validity of the ship's safety
certificate;
(b) allowed the vessel to depart without the
vehicles being secured to the deck, in spite of the gale warning that
had been issued;
3. the chief officer, a Master Mariner ...
who, on 13 January 1993, before the ferry left the port of
Świnoujście bound for Ystad, and despite the issuing of a
gale warning, did not supervise the securing of the vehicles to the
deck before the ferry left port.”
page
8
“The lack of effectiveness of the rescue operation
was the result of
...
3. the clothing of the passengers and some
crew members, which did not protect them against hypothermia;
4. the inadequate training of the crew in the
use of the life-saving equipment.”
page
109
“ ... In the Chamber's view, the evidence cited
demonstrates that
...
(ii) the cargo was not secured before the
vessel left dock despite the gale warning issued by the
meteorological office...”
pages
129-30
“... The causes of the vessel's having turned into
the wind can only be established with a high degree of probability;
the possibility that the persons steering the ferry failed to observe
the rules cannot be discounted ...”
page
162
“... The rescue operation revealed that, in a
situation of the utmost danger, some members of the crew did not know
how to use the lifejackets ...”
II. RELEVANT DOMESTIC LAW
- The
maritime chambers were introduced into the Polish legal system by an
Act of 18 March 1925 which provided for the establishment
of chambers at two levels of jurisdiction, attached to the courts and
with jurisdiction “in cases relating to maritime incidents and
accidents at sea”. The maritime chambers were considered as
maritime administrative bodies.
- The
Maritime Chambers Act of 1 December 1961 incorporated most of the
rules laid down in the 1925 Act and transferred powers to them which
had previously been vested in the courts. Its relevant provisions
read:
Section 7
“The maritime chambers shall be composed of a
president, one or more vice presidents and lay members.”
Section 8
“(1) The president and vice president
shall be appointed and removed from office by the Minister of
Justice, in agreement with the Minister of Transport and Maritime
Affairs, from among the judges of the ordinary courts who have
knowledge of the maritime issues dealt with in the cases before the
maritime chambers.
(2) The other members [pracownicy] of
the maritime chambers shall be recruited and dismissed by the
president of the chamber concerned.”
Section 9
“(1) The presidents and vice presidents
of the maritime chambers shall retain their judicial posts and,
unless the law stipulates otherwise, the rights and duties set out in
the legislation applicable to judges.
(2) The status of the other members of the
maritime chambers shall be governed by the legislation governing
officials of State administrative bodies.”
Section 10(2)
“The Minister of Justice, in agreement with the
Minister of Transport and Maritime Affairs, shall determine, by
decree, the extent of the participation of the presidents and
vice presidents of the maritime chambers in the activities of
the courts, taking account of the extent of their involvement in the
maritime chambers and the need to have working professional judges
involved in the administration of justice.”
Section 20
“Subject to contrary provisions of the present
Act, the provisions of the Code of Criminal Procedure shall apply to
proceedings in cases before the maritime chambers concerning
accidents at sea.”
Section 27(1)
“Once a case has been brought before the maritime
chamber, it shall be investigated by the president or the
vice president either directly or through the intermediary of
the harbourmaster's office.”
Section 28(1)
“The investigation shall be aimed at establishing
the sequence of events and the causes and circumstances of the
accident by gathering the necessary information and preserving the
evidence.”
Section 37(2)
“After the decision has been signed by the members
of the bench who decided the case, the president shall deliver the
decision, citing the main grounds. The grounds of the decision shall
then be set down in writing ...”
Section 39(1)
“The decision and the reasons shall be
communicated to the Minister of Transport and Maritime Affairs, his
or her deputy, the maritime department concerned and the individuals
concerned. In the cases referred to in section 15(4), they shall also
be communicated to the Labour Inspectorate.”
- The
regulations adopted by the Minister of Transport and Maritime Affairs
on 12 November 1996 incorporated the rules set down in the 1961 Act.
However, no express provisions were laid down concerning appeals to
the maritime appeals chambers against decisions given by the maritime
chambers at first instance. The chief task of the maritime chambers
remains the determination of cases concerning maritime incidents and
accidents at sea. Under the terms of the 1996 regulations, in cases
relating to accidents at sea not governed by the 1961 Act, the rules
of ordinary law and the Code of Criminal Procedure apply.
- On
12 July 2001 a preliminary question was referred to the Supreme Court
in a different case from the one before the Court, concerning the
possibility of an appeal on points of law against a decision given by
a maritime appeals chamber. The Supreme Court replied that no such
possibility existed (IIICZP 22/01 OSNC 2001, no. 158). It observed
that there had been a long running debate among Polish
commentators on the legal status of the maritime chambers, which were
sometimes regarded as administrative bodies and sometimes as judicial
bodies.
- On
18 December 2002 the Government communicated to the Court a bill on
maritime chambers, indicating that it would be put before the Council
of Ministers for approval in early 2003, before being tabled in the
Sejm.
The
Act of 5 March 2004 was published in the Official Gazette on 14 April
2004. It provides a detailed definition of maritime disasters,
listing in detail the conduct and facts falling within the remit of
the maritime chambers. The only possibility of appeal is with the
Gdańsk Court of Appeal against decisions of the maritime appeals
chamber withdrawing navigation rights. Finally, it includes a new
chapter on the procedure for enforcing decisions of the maritime
chambers concerning the withdrawal of navigation rights.
However,
the new legislation has not made provision for an appeal on points of
law against decisions of the maritime appeals chambers and has not
amended the procedure for appointing and removing from office the
presidents and vice presidents of the maritime chambers.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- Relying
on Article 6 § 1 of the Convention, the applicants complained
that the maritime chambers which had heard their case had not been
independent and impartial tribunals within the meaning of the
Convention.
Article
6 § 1, in its relevant parts, provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law. ...”
A. The Government's preliminary objections
1. Failure to exhaust domestic remedies
- On
6 August 2003 the Government submitted additional observations
challenging the decision of 16 January 2003 on the admissibility of
the application. They emphasised in particular the effectiveness of a
constitutional complaint, a remedy which, they argued, had to be
exercised in order to remedy the applicants' situation.
- The
Court notes first that it dismissed this objection on 16 January
2003. It also points out that, in the meantime, it has reaffirmed the
principles of its case-law concerning Poland with regard to the
effectiveness of constitutional complaints (see, conversely,
Szott Medyńska v. Poland (dec.), no. 47414/99, 9
October 2003; see also Międzyzakładowa Spółdzielnia
Mieszkaniowa Warszawscy Budowlani v. Poland (dec.), no. 13990/04,
26 October 2004). It sees no reason, therefore, to review its
decision.
2. Lack of “victim” status of the
applicants Irena Brudnicka, Anna Korzeniowska, Gabriela
Łastowska, Mieczysław Okupiński, Bernadeta Olesz,
Krystyna Ostrzyniewska, Stefania Subicka, Urszula Lejbschand, Celina
Wawrzak and Anna Szpilman
- The
Government noted at the outset that the applicants had been unable to
quote any passages from the decisions implicating members of the crew
by name. The Government considered that nobody had been found guilty
of the shipwreck and that irregularities had simply been noted in the
conduct of, among others, the captain and the chief officer. In their
view, that did not give rise to a presumption that other members of
the crew had contributed to it directly or indirectly. They took the
view that, as the crew members had individual liability,
irregularities in the professional conduct of one or more members
could not be attributed to the others.
- The
applicants pointed out that the only members of the crew mentioned by
name had been the captain (whose widow had not made an application to
the Court) and the chief officer. However, the maritime chambers had
not held either of them liable for any act or omission, but had
called them to account in their supervisory and inspection capacity.
Hence, the decision of the Gdańsk Maritime Chamber, without
naming each crew member, had held the crew collectively liable
through those who had been in charge. That had been borne out by the
fact that the decision of the maritime appeals chamber had listed in
detail the charges against the crew.
- The
Court reiterates that, in order to rely on Article 34 of the
Convention, an applicant must meet two conditions: he or she must
fall into one of the categories of petitioners mentioned in Article
34 and must be able to make out a case that he or she is the victim
of a violation of the Convention. According to the Court's
established case-law, the concept of “victim” must be
interpreted autonomously and irrespective of domestic concepts such
as those concerning an interest or capacity to act. In addition, in
order for an applicant to be able to claim to be a victim of a
violation of the Convention, there must be a sufficiently direct link
between the applicant and the harm which they consider they have
sustained on account of the alleged violation (see, among other
authorities, Tauira and Others v. France, no. 28204/95,
Commission decision of 4 December 1995, Decisions and Reports (DR)
83-B, p. 112; Association des amis de Saint-Raphaël et de
Fréjus and Others v. France, no. 38192/97, Commission
decision of 1 July 1998, DR 94-B, p. 124; Comité des
médecins à diplômes étrangers v. France
and Ettahiri and Others v. France (dec.), nos. 39527/98
and 39531/98, 30 March 1999; and Gorraiz Lizarraga and Others v.
Spain, no. 62543/00, ECHR 2004-III).
- In
its admissibility decision, the Court joined to the merits the
question of whether the applicants Irena Brudnicka, Anna
Korzeniowska, Gabriela Łastowska, Mieczysław Okupiński,
Bernadeta Olesz, Krystyna Ostrzyniewska, Stefania Subicka,
Urszula Lejbschand, Celina Wawrzak and Anna Szpilman could claim
the status of victims.
- The
Court considers that the proceedings did not concern only the
liability of the crew members and were not aimed solely at
determining whether each member was individually liable. The crew
came under criticism for, among other things, not having secured the
load correctly and having been inadequately trained in rescue
operations. Some of its members were also criticised for failing to
comply with the rules when steering the vessel and not knowing how to
use the lifejackets.
- The
Court is of the opinion that the status of victim cannot be made
conditional solely on a finding that an applicant's reputation has
been harmed. Everyone has the right to defend his or her reputation
if there is a possibility that it may be compromised. The Court also
considers that the applicability of the Convention in this case
should not depend on establishing whether each individual crew member
was at fault.
- In
the instant case, the Court accepts that the final decision of the
maritime appeals chamber upheld the charges against the crew as a
whole, although it mentioned only certain members by name.
- Accordingly,
having regard to the particular circumstances of the case, the Court
considers that the applicants Irena Brudnicka, Anna Korzeniowska,
Gabriela Łastowska, Mieczysław Okupiński, Bernadeta
Olesz, Krystyna Ostrzyniewska, Stefania Subicka, Urszula Lejbschand,
Celina Wawrzak and Anna Szpilman, the heirs of sailors who died in
the shipwreck, can claim to be victims within the meaning of Article
34 of the Convention of the violation which they alleged.
B. The merits
1. Applicability of Article 6 § 1
- The
Government contested the applicability of Article 6 to the impugned
proceedings, taking the view that they did not relate to a civil
right or obligation or to the determination of a criminal charge. The
applicants disputed that argument.
- The
Court reiterates that the “civil” nature of the right to
enjoy a good reputation is not in dispute and has been established in
its case-law (see Golder v. the United Kingdom, judgment of 21
February 1975, Series A no. 18, p. 13, § 27).
- In
the instant case, given that it dismissed the Government's
preliminary objection, finding that the proceedings before the
maritime chambers related to the right of the victims of the disaster
to enjoy a good reputation, the Court considers that Article 6 §
1 applies to the proceedings before the maritime chambers.
2. Compliance with Article 6 § 1
- The
applicants contended that the maritime chambers which had heard the
case had not been independent and impartial tribunals within the
meaning of the Convention. They argued that the lack of fairness was
a direct result of the provisions of the 1961 Maritime Chambers Act.
- The
Government argued that the application was manifestly ill founded.
They submitted that, during the proceedings before the maritime
chambers, the applicants had enjoyed all the guarantees of a fair
trial. That was borne out by the fact that the proceedings had
provided the guarantees laid down in the Code of Criminal Procedure.
- The
Court notes that the decisions given by the maritime chambers are
final, and that they are not amenable under Polish law to any form of
judicial review. Its task is therefore to determine whether, in the
instant case, the independence and impartiality of the maritime
chambers were open to question.
- In
order to establish whether a tribunal can be considered to be
“independent” within the meaning of Article 6 § 1,
regard must be had, inter alia, to the manner of appointment
of its members and their term of office, the existence of guarantees
against outside pressures and the question whether the body presents
an appearance of independence (see, among many other authorities,
Findlay v. the United Kingdom, judgment of 25 February
1997, Reports of Judgments and Decisions 1997 I, p. 281,
§ 73).
- There
are two aspects to the requirement of “impartiality”.
Firstly, the tribunal must be subjectively impartial, that is, no
member of the tribunal should hold any personal prejudice or bias.
Secondly, the tribunal must also be impartial from an objective
viewpoint, that is, it must offer sufficient guarantees to exclude
any legitimate doubt in this respect (see Pullar v. the United
Kingdom, judgment of 10 June 1996, Reports 1996 III,
p. 792, § 30).
- As
the concepts of independence and objective impartiality are closely
linked, the Court will consider them together as they relate to the
instant case.
- In
maintaining confidence in the independence and impartiality of a
tribunal, appearances may be important. Given that the members
of the maritime chambers (the president and vice president) are
appointed and removed from office by the Minister of Justice in
agreement with the Minister of Transport and Maritime Affairs, they
cannot be regarded as irremovable, and they are in a subordinate
position vis-à-vis the Ministers. Accordingly, the
maritime chambers, as they exist in Polish law, cannot be regarded as
impartial tribunals capable of ensuring compliance with the
requirement of “fairness” laid down by Article 6 of the
Convention. In the Court's view, the applicants were entitled to
entertain objective doubts as to their independence and impartiality
(see, mutatis mutandis, Sramek v. Austria, judgment of
22 October 1984, Series A no. 84, p. 20, § 42). There has
therefore been a violation of Article 6 § 1 of the Convention.
- The
Court notes that Poland has recently amended its legislation on the
maritime chambers (see paragraph 20 above). However, it also notes
that the new legislation still makes no provision for an appeal on
points of law against the decisions of the maritime appeals chamber;
nor has it altered the manner in which the presidents and
vice presidents of the maritime chambers are appointed and
removed from office. Accordingly, the legislation does not answer the
applicants' complaint concerning the lack of independence and
impartiality of these tribunals.
- The
conclusion reached by the Court in paragraph 41 above makes it
unnecessary for it to examine the other complaints under Article 6 §
1, set forth in its admissibility decision of 16 January 2003.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 4,600 euros (EUR) each in respect of non pecuniary
damage.
- The
Government requested the Court to hold, should it find that there has
been a violation, that such a finding would constitute sufficient
just satisfaction.
- Making
its assessment on an equitable basis, the Court considers that the
applicants should be awarded EUR 4,600 each in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicants, who received legal aid from the Council of Europe, did
not submit any claim for the reimbursement of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the Government's preliminary objection
of failure to exhaust domestic remedies;
- Dismisses the Government's preliminary objection
regarding the lack of victim status of the applicants Irena
Brudnicka, Anna Korzeniowska, Gabriela Łastowska, Mieczysław
Okupiński, Bernadeta Olesz, Krystyna Ostrzyniewska,
Stefania Subicka, Urszula Lejbschand, Celina Wawrzak and Anna
Szpilman;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 4,600
(four thousand six hundred euros) in respect of non-pecuniary damage,
to be converted into Polish zlotys at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in French, and notified in writing on 3 March 2005, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Georg Ress
Registrar President
