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FOURTH
SECTION
CASE OF GOSPODARCZYK v. POLAND
(Application
no. 6134/03)
JUDGMENT
STRASBOURG
17 February 2009
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 Gospodarczyk v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 27 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6134/03) 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, Mirosław Gospodarczyk
(“the applicant”), on 12 February 2003.
- The
applicant, who had been granted legal aid, was represented by
Mr S. Kwietniowski, a lawyer practising in Zielona Góra.
The Polish Government (“the Government”) were represented
by their Agent, Mr J. Wołąsiewicz of the Ministry
of 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
7 July 2006 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948 and lives in Zielona Góra, Poland.
- On
26 October 1998 the applicant purchased a house and a plot of land
located in Niedoradz in the Otyń municipality, for which he paid
28,684 Polish zlotys (PLN).
- In
December 1999 the applicant discovered that the plot in question was
36 sq. m smaller than the size specified in the contract.
- On
an unspecified date in 2002 the applicant lodged a claim against the
municipality with the Zielona Góra Regional Court, seeking
PLN 412,666 in compensation for the alleged difference between
the actual size of the property and the one declared in the notarial
deed. He claimed that due to the fact that the plot was in fact
smaller he could not construct a special sanitary tank there and
consequently could not open a bakery, which he had originally planned
to do. He also sought exemption from the entire amount of court fees
which were set at PLN 22,233.30. The applicant claimed that his
monthly income was only an invalidity pension of PLN 449.51. He
submitted that after paying rent for his cooperative flat, his net
income amounted to PLN 200.
- The
Regional Court requested the applicant to supplement his declaration
of means. Subsequently, the applicant submitted that he owned a house
in Niedoradz which according to him had a value of PLN 120,000, and
that he had a cooperative flat in Zielona Góra, a plot of land
(570 sq. m), a small retail outlet and a van (valued at PLN 10,000)
used for temporary work. He claimed that he had purchased the
Niedoradz property using his savings and family loans, and that he
intended to use it to create employment for him and his family. He
also informed the court that he had invested PLN 92,000 of his own
money in the house.
- On
22 July 2002 the Regional Court refused his application for exemption
from court fees. It held, in so far as relevant:
“Pursuant to Article 113 § 1 of the Code of
Civil Procedure exemption from court fees may be sought by a party
who is unable to bear them without entailing a substantial reduction
in his or her standard of living. The plaintiff does not satisfy this
requirement. It is evident to the court that the plaintiff has a
substantially higher income than the declared pension which he
knowingly does not disclose, in that his retail outlet and his van
must generate profits. These profits must be substantial because
otherwise he could not have a cooperative flat and three other
properties and could not invest nearly PLN 100,000 in other business
projects and maintain them. The plaintiff continuously conceals his
real profits and they are substantial, because nobody could believe
that he lives on PLN 200 per month.
Exemption from court fees is a privilege serving to
legally protect the indigent, and the plaintiff is a very affluent
person in Polish terms”.
- The
applicant appealed against that decision and pleaded that he was in
an exceptional situation. He submitted that he had acquired the
Niedoradz property, which was the subject of his dispute with the
municipality, and had invested PLN 92,000 in it with a view to
conducting business activity there. However, he could not execute his
business plans since the property did not conform to certain
unspecified requirements and as a result his financial situation had
worsened. He further submitted that he had to pay back a loan of PLN
40,000 obtained from his brother for renovation of the house. He
produced a statement signed by his brother which attested that the
applicant had received the loan and had not paid it back as of 1
August 2002.
- The
applicant further submitted that he had a cooperative flat, but that
he was in arrears of rent in the amount of PLN 3,532.35. In addition,
he maintained that his and his wife's retail outlet was making
losses. He produced their joint tax return which attested that in the
2001 tax year he had sustained a loss of PLN 14,628.23. Furthermore,
the applicant claimed that he was financially supported by his
family, in particular his mother who provided him with PLN 600 each
month. He produced a statement from his mother to that effect.
- On
14 August 2002 the Poznań Court of Appeal upheld the contested
decision. It held, in so far as relevant:
“The appeal should be considered unfounded. In
particular, the first-instance court was right when holding that the
applicant's declaration of means was unreliable. In that declaration
of means the applicant did not state, inter alia, that he was
conducting a business activity, and he explained that circumstance
only in the appeal proceedings. It is also not difficult to notice
the differences between the applicant's declared income and the value
of his assets. It is a well-established principle in the case-law
that being an owner of a[n immovable] property excludes the
possibility of granting exemption from court fees (judgments of the
Supreme Court of 23 October 1934, no. C II 1441/34 and of 1 February
1937, no. C II 2379/36).
The applicant can pay the court fees for his action
since he has considerable assets and given that he has recently, as
he claims, invested PLN 124,000 in one of his properties. What is
more, the fact at the origin of the dispute, namely that the property
acquired by the applicant from the municipality is in fact smaller
than declared in a notarial deed, has been known to the applicant
since 1999. Thus, he could have made savings with a view to funding
his litigation.”
- Consequently,
the applicant was summoned to pay the court fees for proceeding with
his claim against the municipality. On 21 October 2002 the Zielona
Góra Regional Court returned the applicant's statement of
claim since he had not paid the fees in question. The applicant
appealed against that decision. However, he was informed that his
appeal would not be considered until he had paid PLN 4,446.70 in
court fees.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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 the excessive
court fees required from him in order to proceed with his claim had
been in breach of his right of access to a court for the
determination of his civil rights. The relevant part of Article 6 §
1 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 Court notes that the application 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
(a) The applicant
- The
applicant maintained that the sum required from him for proceeding
with his claim had been unusually high and disproportionate to his
means. He submitted that the first-instance court had considered his
declaration in an arbitrary way since it had not requested him to
provide additional explanations.
- The
applicant stressed that the sole fact that he had had assets could
not have deprived him of his right to be exempted from court fees.
He
further could not have been asked to sell his property as it would
have been detrimental to the maintenance of his family.
- The
applicant concluded that his right of access to a court had been
breached.
(b) The Government
- The
Government firstly recapitulated the general rules concerning
exemption from court fees.
- They
secondly noted that the court fee was justified and calculated with
reference to the value of the claim. The applicant should have
realised that the value of his claim would have influenced the court
fee required from him.
- They
further stressed that the applicant's claim had been of a speculative
nature, since it had been much higher than the original value of the
property. Furthermore, the applicant had not provided the court with
any evidence that he had indeed invested PLN 92,000 in the house.
- They
also noted that the value of the applicant's assets had been high and
totally disproportionate to the declared income. The domestic courts
confirmed that his declarations had been unreliable since they had
not included information about the applicant's conduct of a business
activity.
- It
was true that the Poznań Court of Appeal had relied on an old
legal doctrine which had been developed in the context of different
socio-economic conditions. However, this principle had not been
decisive in this case, as the main reason for the Court of Appeal's
decision was the difference between the applicant's declared income
and the value of his assets.
- In
sum, the Government invited the Court to find that there had been no
violation of Article 6 of the Convention.
2. The Court's assessment
(a) Principles deriving from the Court's
case-law
- The
Court observes 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 could 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 had been imposed, were factors
which were material in determining whether or not a person had
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 requested constituted a
restriction that impaired the very essence of the applicant's right
of access to a court.
- The
Court firstly notes that the case concerned the applicant's claim for
compensation against the Otyń municipality. The fee in the case
was determined as a fraction of the value of the claim, namely the
amount of compensation sought.
- The
Court observes that the applicant was ordered to pay PLN 22,233.30.
- The
Court further notes that it is true that the taking and assessment of
evidence are primarily matters for the domestic courts and that the
Court's role is to ascertain whether those courts, when exercising
their power of appreciation in that sphere, acted in accordance with
Article 6 § 1. In this respect it observes that the judicial
authorities refused to accept the applicant's argument that he was
unable to pay the court fees, given the difference between the value
of his various assets and the declared income. They further stressed
that the applicant could not be considered indigent given the fact
that he owned a house, a cooperative flat, a plot of land, a retail
outlet and a van (see paragraphs 9 and 10). They were of the
opinion that his declaration of means had been unreliable and that he
had not disclosed all his income. On that basis, they concluded that
the applicant had sufficient funds to pay the court fee in question.
- The
Court agrees with the Government's position that the applicant
himself was responsible for the fact that he had been ordered to pay
the sum in question in court fees, as he had claimed an amount very
significantly higher than the original value of his property.
- The
Court further observes that even conceding that the applicant's
income was small, he had assets (see paragraphs 9 and 10).
- Consequently, in accordance with the principle of
subsidiarity, the Court is of the opinion that
it does not appear that in the present case the domestic
courts' approach when assessing the applicant's financial situation
and his ability to pay the fees was arbitrary or discriminatory.
- For
the above reasons, the Court concludes that the refusal to exempt the
applicant from the fee for lodging his claim was not a
disproportionate restriction on his right of access to a court.
- It
accordingly finds that there has been no violation of Article 6
§ 1 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 17 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
