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FOURTH
SECTION
CASE OF POLEJOWSKI v. POLAND
(Application
no. 38399/03)
JUDGMENT
STRASBOURG
4 March 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Polejowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Stanislav Pavlovschi,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä, judges,
and
Lawrence Early, Section Registrar,
Having
deliberated in private on 12 February 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38399/03) 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 a Polish national, Mr Józef Polejowski
(“the applicant”), on 18 June 2003.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry
for Foreign Affairs.
- The
applicant alleged, in particular, that he had been deprived of his
right of access to a court, contrary to Article 6 of the
Convention.
- On
1 September 2006 the President of the Fourth Section decided to
communicate the application to the Government. Under the provisions
of Article 29 § 3 of the Convention, it was decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1939 and lives in Miechucino, Poland.
- In
1992 the applicant donated his agricultural property to his son. In
1996 the public notary prepared an amendment to the contract
concerning the transfer of certain items of property (agricultural
equipment) to the applicant's son. On 24 June 1997 the Gdańsk
Court of Appeal (Sąd Apelacyjny) confirmed that the
amendment was invalid.
- On
5 July 2001 the applicant sued his son, J.P., before the Gdańsk
Regional Court (Sąd Okręgowy) for restitution of the
items of property in question. The applicant indicated that the value
of the claim was almost 200,000 Polish zlotys (PLN). He also asked to
be exempted from court fees.
- On
18 September 2001 the Regional Court refused to exempt the applicant
from court fees. The court gave the following reasons for its
decision:
“The applicant submitted that his only income was
a disability pension in the amount of PLN 552.21 [approx. EUR 138].
He further claimed that he did not own any real estate or any other
assets, except for a car. However, he had been paying for it in
instalments: PLN 159.50 [approx. EUR 40] monthly. The plaintiff
estimated the amount of his monthly expenses for his flat at PLN 200
[EUR 50].
From the documents submitted by the applicant it appears
that the sum he spends monthly on his flat, and the loan for the car
customised for a disabled person, amounts to PLN 359.5. After he pays
for the flat and the loan, the plaintiff has PLN 192.5 left [approx.
EUR 48]. According to the court, it is not enough to cover his
maintenance costs such as food, clothes and medication...
This leads the court to the conclusion that the
plaintiff has other additional resources and he can afford to pay the
court fees in question. Consequently, considering that the plaintiff
failed to indicate all his assets, the court dismisses his
application for an exemption from court fees.”
- On
30 October 2001 the applicant filed an interlocutory appeal against
this decision. He also filed a new motion for an exemption from court
fees.
- The
Gdańsk Regional Court rejected the applicant's interlocutory
appeal as it had been lodged outside the prescribed time-limit. On 19
April 2002 the Gdańsk Court of Appeal upheld this decision.
- On
21 May 2002 the Regional Court ordered the applicant to supplement
his motion for an exemption from court fees.
- In
reply the applicant stressed that his financial situation had not
changed and was still very bad. His disability benefit had increased
by PLN 2, as shown by a pay slip he had attached.
- On
17 June 2002 the Gdańsk Regional Court rejected the applicant's
second motion for exemption from court fees. The court held that it
had already considered the applicant's financial situation and found
that it had not justified an exemption.
- The
applicant filed an interlocutory appeal. He submitted that he was
63 years old and in poor health. He was not even able to buy the
necessary medication as his monthly disability pension amounted to
PLN 556. For these reasons he believed that he should be exempted
from court fees.
- On
16 October 2002 the Gdansk Court of Appeal dismissed the applicant's
interlocutory appeal against this decision. The court repeated the
reasons given by the Regional Court.
- On
12 November 2002 the Regional Court ordered the applicant to pay PLN
11,305.5 [approx. EUR 2,826] for lodging his statement of claim on
pain of having it returned.
- As
the applicant failed to do so, his statement of claim was returned to
him on 3 February 2003.
II. RELEVANT DOMESTIC LAW
- The
legal provisions applicable at the material time and questions of
practice are set out in paragraphs 23-33 of the judgment delivered by
the Court on 19 June 2001 in the case of Kreuz v. Poland
(no. 28249/95, ECHR 2001-VI; see also
Jedamski and Jedamska v. Poland,
no. 73547/01), §§ 29-39).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 that, on
account of the excessive court fees required from him for proceeding
with his claim, he had been deprived of access to a court for the
determination of his civil rights.
Article
6 § 1 of the Convention, in so far as relevant, provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing ... by [a] ...
tribunal established by law. ...”
- The
Government contested that argument.
A. Admissibility
- The
Government submitted that the applicant had not exhausted the
available domestic remedies as he had not asked the Ombudsman to file
a cassation appeal on his behalf against the decision of the Court of
Appeal. They also stated that it had been open to the applicant to
lodge a constitutional complaint. Moreover, the Government submitted
that the applicant had failed to lodge an appeal against the decision
of 18 September 2001 in compliance with procedural requirements.
- The
applicant considered that he had not had any remedies to complain
about the amount of court fees imposed on him.
- The
Court firstly observes that the domestic courts examined the
applicant's motion for exemption from court fees on 18 September
2001. They re-examined the issue when the applicant lodged a second
application for exemption from court fees. The second application was
dismissed on 17 June 2002 and an interlocutory appeal against
that decision was lodged in compliance with formal requirements and
dismissed by the Court of Appeal on 16 October 2002. Accordingly, it
cannot be concluded that the applicant did not put before the
domestic authorities his request to be exempted from court fees
before submitting his complaints to the Court.
- The Court also notes, and it was not contested by the
Government, that domestic law did not provide for a possibility to
appeal against a decision to return a statement of claim or to lodge
directly a cassation appeal against a decision given by the Court of
Appeal. As to the possibility of asking the Ombudsman to file a
cassation appeal against the decision of the Court of Appeal, the
Court notes that the Ombudsman's decision as to whether to grant such
request was dependent on his discretionary powers (see Zawadka v.
Poland (dec.), no. 48542/99, 7 November 2002). With
regard to the Government's contention that the applicant should have
lodged a constitutional complaint, the Court notes that this argument
has not been in any way substantiated or supported by examples of
cases in which a constitutional complaint was shown to be an
effective remedy in respect of a complaint such as the applicant's.
- The
Court thus considers that the applicant did not have to avail himself
of any other domestic remedies (see Kozłowski v. Poland,
no. 23779/02, § 24, 23 January 2007).
- The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government submitted that the right of access to a court was not
absolute and the requirement to pay fees in connection with civil
claims could not be regarded as incompatible per se with
Article 6 of the Convention. They further maintained that the fee
required from the applicant in the present case had been neither
excessive nor arbitrary.
The
Government considered that the applicant had failed to substantiate
to the satisfaction of the domestic authorities his allegedly poor
financial situation. In sum, the Government invited the Court to find
that there had been no violation of Article 6 of the Convention.
- The
applicant generally contested the Government's submissions.
2. The Court's assessment
(a) Principles deriving from the Court's
case-law
- The
Court recalls that in its judgment in Kreuz v. Poland
(cited above, § 60) it dealt with the question whether the
requirement to pay substantial fees to civil courts in connection
with claims can be regarded as a restriction on the right of access
to a court.
- In
this connection the Court held that the amount of the fees assessed
in the light of the particular circumstances of a given case,
including the applicant's ability to pay them, and the phase of the
proceedings at which that restriction has been imposed, are factors
which are material in determining whether or not a person enjoyed his
right of access and had “a ... hearing by [a] tribunal”.
(b) Application of the above principles to
the present case
- The
Court will now determine whether, in the particular circumstances of
the present case, the fee actually required constituted a restriction
that impaired the very essence of the applicant's right of access to
a court.
- In
the instant case the applicant had to desist from pursuing his case
before the civil courts because he had been unable to pay the court
fee of PLN 11,305.5.
- The
Court firstly notes that the case concerned the applicant's property
rights and his request for some items of property to be returned to
him. There is no evidence to suggest that the domestic courts
considered the applicant's action to be devoid of prospects of
success or of a vexatious nature.
Furthermore,
the Court considers that restrictions on access to a court which are
of a purely financial nature and which, as in the present case, are
completely unrelated to the merits of the claim or its prospects of
success, should be subject to a particularly rigorous scrutiny from
the point of view of the interests of justice (see Teltronic-CATV
v. Poland, no. 48140/99, § 61, 10 January 2006).
It is thus of significance for the Court that the refusal to grant
exemption took place at the preliminary stage of the proceedings
before the first-instance court and resulted in the applicant's claim
never being examined on the merits.
- The
Court also observes that under Polish law an exemption from payment
of court fees can at any time be revoked by the courts if the basis
thereof has ceased to exist. Allowing the applicant to proceed with
his claim at the initial phase of the proceedings would not therefore
have prevented the Polish courts from collecting court fees if at
some further stage his financial situation had improved (see Kreuz,
cited above, § 65).
- The
Court further observes that the applicant was unemployed and received
a monthly disability pension equivalent to EUR 138. It is apparent
from the reasons for the Regional Court's decision of 18 September
2001 that the domestic authorities were aware of the applicant's
financial standing and considered that the amount of money left to
him after deduction of maintenance expenses was very low.
Nevertheless, the authorities assumed that the applicant had
additional resources to support himself and was thus able to pay
court fees in the full amount. The Court notes that this assessment
was not supported by any evidence and it does not find it persuasive,
in particular when weighed against the importance of securing to the
applicant an “effective” access to a court.
- The
Court finally observes that the domestic courts did not envisage a
partial exemption from court fees and failed to take into
consideration the fact that the fees required from the applicant
represented twenty times his documented monthly income.
- In
those circumstances and having regard to the prominent place held by
the right to a court in a democratic society, the Court considers
that the judicial authorities failed to secure a proper balance
between, on the one hand, the interest of the State in collecting
court fees for dealing with claims and, on the other hand, the
interest of the applicant in pursuing his civil claim.
- For
the above reasons, the Court concludes that the refusal to exempt the
applicant from fees for lodging his claim, or to reduce their amount,
constituted a disproportionate restriction on his right of access to
a court. It accordingly finds that there has been a breach of
Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant, invoking Article 1 of Protocol No.
1 to the Convention, complained, in essence, that he had been
deprived of his property due to the actions of the public notary and
courts.
The
Court, having examined this complaint, and regardless of other
possible grounds of inadmissibility, finds nothing in the case file
which might disclose any appearance of a violation of this Convention
provision.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
III. 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
applicant claimed 259,110 Polish zlotys (PLN) in respect of pecuniary
damage and PLN 60,000 for non-pecuniary damage.
- The
Government contested these claims and considered them irrelevant and
excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant 6,000 euros (EUR) in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed PLN 2,008 for the costs and expenses incurred
before the domestic courts and the Court. That sum included EUR 130
for translation costs incurred in the proceedings before the Court.
- The
Government submitted that only claims actually and reasonably
incurred should be reimbursed by the Court.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 130 for the proceedings before the
Court.
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
- Declares the complaint concerning access to a
court admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 6,000 (six thousand euros) in respect of
non-pecuniary damage and EUR 130 (one hundred and thirty euros) for
costs and expenses, plus any tax that may be chargeable, to be
converted into Polish zlotys at the rate applicable at the date of
the settlement;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 4 March 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
