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1. The author of the
communication is Zdzislaw Bator, an American and Polish citizen, currently
residing in the United States of America. He claims to be a victim of
violations of articles 2, paragraph 3 (a) and (b), and 14, paragraph 1, by
Poland, of the International Covenant on Civil and Political Rights. He is
represented by counsel: the law firm of Winston and Strawn in Switzerland
and Mr. Sloan and Leon Zelechowski, United States of America.
FACTUAL BACKGROUND
2.1 In 1986 the author formed a joint venture company with his brother
Waldemar Bator ("Waldemar"), a Polish citizen residing in Plock, Poland. The
business was named Capital Ltd. ("Capital") and its principal place of
business was Plock. The author owned 81% and Waldemar 19% of the shares of
the company. The author provided the funding for the company and Waldemar
operated Capital's day-to-day operations in Poland. The author resided in
the United States but travelled to Poland several times a year to assist in
the running of the business.
2.2 In 1994, the author allegedly discovered that Waldemar and his wife were
embezzling money from the company. The author spent several months in Poland
trying to "save the business". However, in 1995, he decided that Capital
should be dissolved. On 6 November 1995, in a meeting with Waldemar, the
author, as the majority shareholder, passed a resolution dissolving Capital
and elected himself as liquidator. At the meeting, Waldemar voted against
the author's candidature and threatened that he would have the author
removed as liquidator.
2.3 The author took several steps to liquidate Capital's assets, including
selling some of Capital's real estate. On 18 December 1995, the Plock
District Court sent the author notice that the liquidation should be entered
immediately into the Commercial Registry. Waldemar obtained this notice from
the Court on the same day that it was issued and faxed it to the author. The
original notice arrived at Capital's offices in Plock on 27 December 1995.
In response to this notice, the author filed a petition informing the Court
that the liquidation had taken place on 3 January 1996.
2.4 On 18 December 1995, Waldemar filed his first motion to replace the
author as liquidator. On 15 March 1996, the Plock District Court held a
"closed hearing" on the motion to change liquidators. The hearing was not
held in open Court but in the judge's chambers and according to the author
neither he nor his lawyer were notified of the time and place of the
hearing. As a result, neither was present to contest the motion. In
addition, the case was heard by the Commerce Law Division of the District
Court as a "registry case", allegedly in violation of applicable rules of
Polish civil procedure. As such, according to the author, the Court's
jurisdiction was incorrectly invoked. The judge ruled that Waldemar should
replace the author as Capital's liquidator. Her reasons for this ruling
included the author's failure to register the liquidation until 3 January
1996, and his U.S residence, which rendered him less able to carry out the
duties of liquidator (either personally or through his agents).
2.5 Pursuant to this ruling, the author's name was immediately deleted from
the Commercial Register, and Waldemar's name was inserted as liquidator.
According to the author, this was contrary to Polish law, because the
District Court's ruling should not have been officially recognised until the
author had had an opportunity to pursue an appeal. On 27 May 1996, the judge
of the District Court reversed her ruling of 15 March 1996, admitting that
she had exceeded her authority by entering Waldemar's name as liquidator in
the Commercial Register. On 21 October 1996, an appeal by Waldemar was
denied and in January 1997, the Registry was amended to show the author as
liquidator.
2.6 In early 1997, Waldemar filed a second motion to change liquidators. On
11 July 1997, the same judge heard his application without any
representation from the author and found for Waldemar. She provided almost
identical reasoning to that provided in her ruling of 15 March 1996 ruling.
On 30 October 1997, this decision was reversed by the Circuit Court as the
author had not been properly informed of the date of the hearing and
therefore the principle of equality of arms between the parties had not been
respected. The Circuit Court returned the case to the District Court for
reconsideration.
2.7 Prior to the reconsideration of this matter in the District Court on 15
October 1998, the author's lawyer had filed a motion requesting an
adjournment, as the author was ill and unable to travel, and his lawyer
could not represent him on the date in question. The Court did not
acknowledge receipt of the motion to delay the hearing. According to the
author, this request was delivered to the Court by 8:00 a.m. on the day of
the hearing. A different judge presided over the proceedings and ruled in
favour of Waldemar reiterating the reasoning of the District Court. [FN1] On
6 July 1999, the Circuit Court affirmed the District Court's ruling. The
Court allegedly refused the author's request to testify and to present
documentary evidence. The author filed several procedural motions to reopen
the proceedings and to appeal before the Supreme Court. All these requests
were denied.
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[FN1] According to the judgment, the Court gave several reasons for its
decision and determined that the author had failed to fulfill his
responsibilities as liquidator under the Commercial Code.
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THE COMPLAINT
3.1 The author claims that his rights under articles 2 and 14 were violated,
as he did not receive a fair and public hearing to defend himself against
repeated attempts to dismiss him as liquidator. Each time the District Court
dismissed the author as liquidator it did so in the author's absence, and
allegedly refused to allow the submission of evidence to support his case.
Similarly, during the hearing on 6 July 1999, the Circuit Court refused to
allow the author to testify or to otherwise participate in the hearing. The
author also claims that by hearing these motions in the absence of the
author, the District Court violated article 379, para. 5, of the Civil
Proceedings Code.
3.2 The author claims that the judges of the Plock District Court were
neither independent nor impartial. In support of his claim, he observes that
the District Court found in Waldemar's favour every time a motion to remove
the author was before it, that the author was never informed of the time or
place of the hearings; that the Court proceeded with the hearing on the
third motion even though it was informed that the author was ill and could
not attend; and that on the same day of each hearing the Court issued a full
written judgment, which to the author suggests that the outcome was
pre-determined.
3.3 In addition, the author infers from the fact that Waldemar received the
District Court's notice to register the liquidation on 18 December 1995,
i.e. the same day it was issued, that Waldemar had prior knowledge from the
Court that this notice would be issued. He also refers to the fact that
after the District Court's ruling on the first motion, Waldemar's name was
immediately entered in the Commercial Registry as liquidator. This was
against Polish law and allowed Waldemar to act on Capital's behalf without
authority. Even though the District Court reversed its decision, the
Registry was not corrected until January 1997, three months after Waldemar's
appeal to the Circuit Court had been finally determined and denied by that
Court.
3.4 The author affirms that he was told by the District Court judge, who had
presided over the first two motions, that she had been told what decision to
make in this case by the judge who was supervising her. He claims that this
supervising judge was having a romantic relationship with one of Waldemar's
friends and that Waldemar's friend admitted to this relationship during a
defamation suit which he filed against the author and three other
individuals. During this hearing, he referred to the judge as his "fiancée".
3.5 To support his argument that the judges were neither impartial nor
independent, the author refers to a World Bank report of 1999, which
outlines the problems of corruption generally among the judiciary in Poland.
Finally, the author admits that while all these allegations of corruption in
paragraphs 3.2 to 3.4 do not constitute direct evidence, the combination of
these events raise a strong inference of bias or at least unfairness against
the author. The actions of the judiciary as a whole are said to have cost
him "hundreds of thousands of dollars in losses".
STATE PARTY'S RESPONSE ON ADMISSIBILITY AND THE MERITS
4.1 On 8 July 2001, the State provided its submission on admissibility and
the merits. It clarified the facts as follows: Waldemar had filed the first
motion on 18 December 1995, on the grounds that the author lived in the
United States and was thus unable to carry out the liquidation process in a
proper manner, and that in the event of misuse of company funds, it would be
practically impossible to sue him before Polish judicial authorities. On 25
January 1996, Waldemar informed the District Court that the author had sold
real estate belonging to the company to the latter's wife on 20 January
1996. For these reasons, on 26 January 1996, the court held a hearing at
which the author, albeit duly summoned, did not appear. Another hearing was
set for 9 February 1996, at which the author also did not appear. As a
consequence, the court postponed the hearing until 23 February 1996 and
ordered the author's compulsory appearance at the hearing. On 23 February
1996, the author was present and the court ordered that information about
the commencement of the liquidation proceedings be entered into the
Commercial Register. At the next hearing on 8 March 1996, the author's
lawyer was present.
4.2 On 15 March 1996, the Plock District Court erroneously ordered changes
to be made to the Commercial Register, without waiting for a final and
enforceable order, in accordance with the Polish Commercial Code. As a
result, on 27 May 1996, the same court ordered that the changes already
introduced be removed. The decision of 11 July 1997 to dismiss the author as
liquidator was quashed on 30 October 1997 by the Circuit Court, which sent
the case back to the District Court, as the author had not been properly
summoned and was unrepresented at the hearing. On 15 October 1998, after
re-examining the case, the Plock District Court dismissed the author as
liquidator and appointed Waldemar. The Circuit Court dismissed the author's
appeal of this decision and concluded that he had been duly summoned to the
hearing even if he was unable to attend and that the court had had ample
opportunity to formulate an informed opinion on the petition in his absence.
In the appeal to the Supreme Court, his claim was similarly dismissed.
4.3 The State party submits that the communication is manifestly ill-founded
and contests the claim that the author was prevented from presenting
documentary evidence or participating in the court proceedings. Except for
the hearing on 11 July 1997, at which the court erroneously assumed that the
author was properly informed about the hearing, an error remedied by the
Circuit Court, there is no evidence that the author was not duly summoned to
all other court hearings in his case. As a result of the decision of the
Circuit Court, the case was remitted back to the first instance court. The
author did not appear at this hearing, even though he was duly summoned. The
State party argues that in his absence, the court was able to examine the
case on the basis of the written arguments provided.
4.4 The State party recalls that the author and his counsel were repeatedly
summoned to the court hearings, and that both testified before the courts.
In fact, for the greater part of the proceedings, the author was represented
by two lawyers. Thus, it cannot be said that the author had no opportunity
to present his position to the court. In addition, the author's lawyers
filed numerous procedural writs with the court, in which they presented
their client's position in detail. In the State party's view, it cannot be
held responsible for the author's inability to attend each court hearing.
The mere fact that the courts decided against him does not mean that he was
deprived of fair proceedings.
4.5 As to the allegations of corruption in the District Court, the State
party submits that they are unsubstantiated, that the report of the World
Bank on corruption is of no relevance and cannot be considered direct
evidence of corruption in the District Court of Plock. It adds that the
allegations with respect to certain judges of the Plock District Court are
defamatory and constitute an abuse of the right of submission. In addition,
by failing to make an application under articles 77 and/or 417 of the Civil
Code for harm caused by public officials, the author has not exhausted
remedies available with respect to the alleged losses caused as a result of
the judiciary's misconduct. Should the Committee consider the case
sufficiently substantiated, the State party submits that the author has
failed to demonstrate a violation of any of the provisions of the Covenant.
THE AUTHOR'S COMMENTS ON THE STATE PARTY'S SUBMISSION
5.1 On 10 October 2002, the author commented on the State party's
submission. He submits that his failure to be present at the hearing on 26
January 1996, was due to his son's illness, of which he informed the Court.
He highlights the State party's failure to refer to the following issues:
the author's request, due to his illness, to adjourn the hearing on 15
October 1998; the judge's decision to consider the case on 15 October 1998
"privately", outside the courtroom, despite her alleged initial decision to
adjourn the case; the Circuit Court's refusal, on 6 July 1999, to permit the
author to participate in the proceedings and its threat to have the author
arrested if he continued to insist on participating; and the fact that the
same judge who had dismissed his appeal in the Supreme Court considered and
dismissed an application to reopen the case.
5.2 The author submits that on hearing his motion to reopen the proceedings,
both the Circuit Court and the Supreme Court focused on the distinctions
between "registry cases" and "commercial cases", glossing over the due
process issues highlighted by the author. The author challenges the State
party's view that the author's failure to participate in the hearing on 15
October 1998, due to his illness, is of no consequence, as the court was in
possession of his written arguments. As to the claim that he failed to
exhaust domestic remedies in his claim against individual judges, the author
notes that such a claim would have been futile, since he had already failed
to receive relief from the Circuit Court and the Supreme Court for the same
due process violations, there is therefore no reason to expect a different
result in proceedings under these articles. In addition, he had already
spent five years attempting to protect his rights before the Courts and the
pursuit of further proceedings would be unreasonably prolonged.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
6.2 As to the author's claim that he did not receive a fair and public
hearing to defend himself against repeated attempts to dismiss him as
liquidator, the Committee observes that the author's allegations relate
primarily to the evaluation of facts and evidence by the courts. It recalls
that it is in principle for the courts of States parties, and not for the
Committee, to evaluate facts and evidence in a particular case, unless it is
apparent that the courts' decisions are manifestly arbitrary or amount to a
denial of justice. [FN2] In the instant case, the Committee notes that both
the Circuit Court and Supreme Court considered the author's claims and it
finds no evidence that these court decisions suffered from such defects. The
Committee therefore concludes that the author has not substantiated his
claim and that this part of the communication is inadmissible under article
2 of the Optional Protocol.
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[FN2] See Communication No. 541/1993, Errol Simms v. Jamaica,
inadmissibility decision of 3 April 1995, paragraph 4.3.
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6.3 In relation to the author's claim that the judges involved in the
adjudication of his case were neither impartial nor independent, the
Committee considers that by failing to raise these issues in any forum or
pursuing other available remedies the author has not exhausted domestic
remedies and the claim is thus inadmissible under article 2 of the Optional
Protocol.
7. Accordingly, the Committee decides:
(a) that the communication is inadmissible, under article 2 of the Optional
Protocol;
(b) that this decision be transmitted to the State party and to the author.
______________________
Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.
Pursuant to rule 90 of the Committee's rules of procedure, Committee member
Mr. Roman Wieruszewski did not participate in the adoption of the present
decision. |
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