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FOURTH
SECTION
CASE OF KANIA v. POLAND
(Application
no. 59444/00)
JUDGMENT
STRASBOURG
10 May 2007
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 Kania v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 12 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 59444/00) 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 a Polish national,
Mr Dariusz Kania (“the applicant”), on
15 November 1999.
- The
applicant, who had been granted legal aid, was represented by
Mr W. Osipacz, a lawyer practising in Wrocław. 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 due to the excessive amount of
the court fees imposed on him, his right of access to a court as
provided by Article 6 § 1 of the Convention had been
violated.
- On
13 September 2005 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning
access to a court to the Government. Under the provisions of
Article 29 § 3 of the Convention, it 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 1962 and lives in Wrocław, Poland.
A. Claim for payment and subsequent proceedings
- In
October 1970 the applicant, at that time a schoolboy, was a victim of
an accident at his primary school as a result of which he lost the
sight in his right eye. In 1983 a court granted him compensation and
a monthly pension in the amount of 2,000 old Polish zlotys.
- On
12 August 1994 the applicant lodged with the Wrocław Regional
Court (Sąd Wojewódzki) a civil action in which he
sought an increase in the amount of the invalidity pension. The
applicant submitted that the amount of the monthly pension had not
been changed since 1984. After the change in the denomination of the
national currency which took place on 1 January 1995 the amount
of the applicant's monthly pension was 0.2 Polish zlotys (PLN).
He further sought compensation in connection with the further
deterioration of his health in the amount of PLN 10,000,000.
- Subsequently,
the applicant was exempted from court fees and granted legal aid.
- The
trial court held several hearings and on 17 December 1998 it
gave judgment. The Regional Court partly allowed the action and
awarded the applicant a monthly pension in the amount of PLN 1,220.
It ordered the defendant to make back payments of the pension as
adjusted to the date of the lodging of the claim. The back payment
amounted to PLN 43,000 and the interest to PLN 100,000. The
court dismissed the applicant's claim for non pecuniary damage
(zadośćuczynienie) as time barred as well as
the remainder of his compensation claims, in particular the claim for
pecuniary damage incurred in connection with a new eye operation.
- The
applicant lodged an appeal against this judgment with the Wrocław
Court of Appeal (Sąd Apelacyjny).
- On
18 May 1999 the Court of Appeal partly allowed the appeal in that it
quashed the part of the judgment which dismissed the remainder of the
applicant's claims and remitted this part of the case. The appeal
court found, inter alia, that the first instance court
had breached the law in deciding, ex officio, not to examine
the merits of the applicant's claim for non pecuniary damage on
the ground that the claim was time barred, despite the fact that
the issue of prescription had not been raised by the defendant.
- On
21 December 1999 the Wrocław Regional Court (Sąd
Okręgowy), after reconsideration of the case, gave a
judgment. It partly allowed the applicant's action and awarded him
PLN 8,000 for pecuniary damage. As regards the claim for
non pecuniary damage, the defendant raised the objection that
the limitation period had elapsed. The court dismissed the
applicant's claim for that reason.
- The
applicant appealed submitting inter alia that the limitation
period had not elapsed as his compensation claim related to a further
deterioration of his health.
- On
11 April 2000 the Wrocław Court of Appeal dismissed the appeal.
With regard to the claim for non pecuniary damage, the court
reiterated that an objection that an action was time barred
could be dismissed only if the application of the limitation period
would violate “the principles of co existence with others”
contained in Article 5 of the Civil Code. According to the
judicial practice such an exception had only been granted in
exceptional circumstances, which were not present in the instant
case. The court also dismissed his appeal in so far as it challenged
the amount of pecuniary damage awarded by the Regional Court. The
court further withdrew the applicant's exemption from court fees and
the grant of legal aid and ordered the applicant to pay PLN 5,000
for court fees in the appellate proceedings and PLN 4,000 for
the legal aid lawyer's fee. It considered that the applicant was
able to pay those fees as he had received compensation in a total
amount of PLN 140,000.
B. Application for an exemption from court fees for
proceeding with his cassation appeal
- On
13 July 2000 the applicant lodged a cassation appeal with the Supreme
Court (Sąd Najwyższy). In the cassation appeal the
applicant complained about the dismissal of his claim for
compensation for non pecuniary damage and about the withdrawal
of the exemption from court fees and the grant of legal aid. The
applicant lowered the amount of the compensation sought to PLN
500,000.
- On
26 July 2000 the Wroclaw Court of Appeal ordered the applicant to pay
PLN 26,600 in court fees for the cassation proceedings.
- On
the same date the applicant lodged an application for exemption from
court fees. He argued that he could not bear such costs as his only
income was the monthly pension ordered by the Regional Court in the
amount of PLN 1,220. He further submitted that the compensation
ordered by the same court in 1998 had been spent on buying an
apartment in which he and his family were living. The applicant,
handicapped as a result of the accident, was married and had three
children. His wife was unemployed. In consequence, the applicant
submitted that he could not pay the court fees without serious harm
being caused to the well being of his family.
- On
8 August 2000 the Wrocław Court of Appeal dismissed the
application for exemption from court fees for the cassation
proceedings. The court gave no reasons for the decision.
- The
applicant lodged an appeal. However, it appears that the domestic law
did not provide any remedy against such a decision and that the
appeal was never examined.
- On
20 September 2000 the Wrocław Court of Appeal rejected the
applicant's cassation appeal on the grounds that the applicant had
failed to pay court fees.
- The
applicant lodged an appeal against this decision.
- Subsequently,
the Court of Appeal ordered the applicant to pay PLN 5,320 in
court fees for lodging an appeal.
- On
17 October 2000 the applicant applied for exemption from court fees,
reiterating his argument about his personal situation and arguing
that he was unable to bear the costs.
- On
17 November 2000 the Wrocław Court of Appeal rejected the
applicant's appeal against the decision rejecting his cassation
appeal on the grounds of his failure to pay court fees pertaining to
that appeal.
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, §§ 23 33,
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 that, on account of the excessive court fees
required from him for proceeding with his cassation appeal against
the Court of Appeal's judgment, he had been deprived of access to a
court for the determination of his civil rights. He relied on
Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
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
- The
applicant claimed that his case required special diligence on the
part of the authorities as it concerned the revalorisation of his
disability benefit which, at the time of lodging his action, was
equal to the price of one box of matches. His civil case was thus
well-founded and his cassation appeal had been directed against the
judgment which, after very lengthy proceedings, had dismissed most of
his compensation claims.
- The
applicant stressed that his very difficult financial situation was
precisely the reason why he had lodged the civil action and was well
known to the domestic courts. The amount of PLN 148,000 which
had been granted by the domestic courts constituted an adjustment of
his pension with interest and had been spent on buying a flat in
which the applicant, his wife and three children were living. As his
claims for compensation had been dismissed he had not been able to
pay court fees for the cassation proceedings.
- The
Government stressed that under Polish law there was a general
obligation on the parties to civil proceedings to pay court fees for
lodging any claim or appeal. The courts would not take any action if
the required fees had not been paid.
- The
Government maintained that the applicant's claim for non pecuniary
damage had been dealt with at two instances by four courts which had
established that the claim was time barred. They further
submitted that a cassation appeal was an extraordinary measure and
therefore access to the Supreme Court could be more restricted than
access to the first and the second instance courts.
They
further underlined that the applicant's financial situation had
changed as the Regional Court in 1998 had granted him PLN 148,000.
Thus, the Court of Appeal's withdrawal of the exemption from court
fees had been justified. 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 recalls that in its judgment of Kreuz v. Poland
(cited above, § 60) it has already dealt with the question
whether the requirement to pay excessive fees to civil courts in
connection with claims can be regarded as a restriction on the right
of access to a court.
The Court has held that the amount of court 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 or her
right of access to a court or whether, on account of the amount of
fees payable, the very essence of the right of access to a court had
been impaired (see Tolstoy Miloslavsky v. the United Kingdom,
judgment of 13 July 1995, Series A no. 316 B,
pp. 80 81, §§ 63 et seq., and Kreuz,
cited above, § 60).
- The
Court reiterates that Article 6 § 1 does not compel
the Contracting States to set up courts of appeal or of cassation.
Nevertheless, a Contracting State which sets up an appeal system is
required to ensure that persons within its jurisdiction enjoy before
appellate courts the fundamental guarantees in Article 6, regard
being had to the fact that the manner of application of that
provision to such courts depends on the special features of the
proceedings involved and that account must be taken of the entirety
of the proceedings in the domestic legal order and of the role of the
appellate court therein (see, for instance,
Brualla Gómez de la Torre v. Spain,
judgment of 19 December 1997, Reports of Judgments and
Decisions 1997 VIII, p. 2955, § 33, and
Tolstoy Miloslavsky , cited above, pp. 80 81,
§§ 61 et seq.).
(b) Application of the above principles to
the present case
- With
those factors in mind, the Court will now determine whether, in the
particular circumstances of the present case, the fee ordered from
the applicant for pursuing his cassation appeal constituted a
restriction that impaired the very essence of his right of access to
a court.
- The
Court firstly observes that the decision of 8 August 2000
whereby the Wroclaw Court of Appeal dismissed the applicant's request
for exemption from court fees of PLN 26,600 (approximately
EUR 6,500) contained no reasons. The applicant submitted that
his appeal against it had not been examined as no such appeal was
provided by law. In view of the absence of any explanation by the
Government, the Court has no alternative but to conclude that no
reasons for the decision of 8 August 2000 had been prepared and
that no appeal lay against that decision. The Court thus cannot
review the assessment of evidence made by the domestic courts in
coming to their conclusion that the applicant's request to be
exempted from court fees should be dismissed.
- Secondly,
the Court considers that there was much at stake for the applicant in
the domestic proceedings as he sought an increase in his invalidity
pension and further compensation for pecuniary and non pecuniary
damage. The case had been dealt with at two instances and his claims
were partly granted as regards the claim for an increase in the
pension and for pecuniary damage. However, the applicant's claim for
non pecuniary damage was finally found by the Court of Appeal to
be time barred and the claim was therefore dismissed. It was
open to the applicant to lodge a cassation appeal with the Supreme
Court against this judgment and the Government have not contended
that a cassation appeal was unmeritorious or inadmissible in law.
- Thirdly,
the Court notes that the court fees in the amount of approximately
EUR 6,500 for pursuing the cassation appeal and further fees of
PLN 5,320 (approximately EUR 1,300) for taking a further
appeal against the decision rejecting the cassation appeal were
substantial and that the applicant's difficult financial situation at
the earlier stages of the proceedings had been regarded as justifying
his exemption from the payment of court fees and the grant of legal
aid. The Government contend that the applicant's financial situation
had changed since the earlier stages of the proceedings since the
Regional Court had awarded him the sum of PLN 148,000 and that he
could accordingly afford the court fees. However, the Court notes
that, in his application to the Wrocław Court of Appeal for
exemption from payment of the fees, the applicant pointed out that
the compensation awarded to him had been spent on buying an apartment
in which he and his family were living and that he could not pay the
court fees without serious harm being caused to the well-being of his
family. The Court further notes that, in its decision refusing
exemption, the Court of Appeal did not question the applicant's
account or suggest that his receipt of the compensation made it
possible for him to pay the court fees charged.
- Assessing
the facts of the case as a whole, and having regard in particular to
the substantial amount of court fees, what was at stake for the
applicant in the proceedings and to the total lack of reasoning in
the domestic court's decision refusing an exemption from court fees
which resulted in the
rejection of the applicant's cassation appeal on formal
grounds,
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 appeals and, on the
other hand, the interest of the applicant in pursuing his cassation
appeal against the Court of Appeal's judgment. The
very essence of the applicant's right of access to a court was
therefore impaired.
- The
Court finds accordingly that there has been a breach of Article 6
§ 1 of the Convention.
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
applicant claimed 450,000 US dollars in respect of
pecuniary and non pecuniary damage.
- The
Government contested the claim.
- As
regards pecuniary damage, the Court finds that the applicant has
failed to demonstrate that the pecuniary damage claimed was actually
caused by his being deprived of access to a court. Consequently,
there is no justification for making any award to him under that head
(see, mutatis mutandis, Kudła v. Poland [GC],
no. 30210/96, § 164, ECHR 2000 XI).
- On
the other hand, the Court accepts that the applicant has suffered
non pecuniary damage which is not sufficiently compensated by
the finding of a violation of the Convention. Making its assessment
on an equitable basis, the Court awards the applicant
6,000 euros (EUR) under this head.
B. Costs and expenses
- The
applicant, who was represented by a lawyer and was granted legal aid
from the Council of Europe, did not claim reimbursement of any 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
- Declares the remainder of the application
admissible;
- 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, to be converted into Polish zlotys at a
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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 10 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of
Court.
T.L. Early Nicolas Bratza
Registrar President
