BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF KIJEWSKA v. POLAND
(Application
no. 73002/01)
JUDGMENT
STRASBOURG
6
September 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 Kijewska 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 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 73002/01) 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, Mrs Bożena Kijewska
(“the applicant”), on 13 June 2001.
- 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 she had been deprived of
her right of access to a court, contrary to Article 6 of the
Convention.
- On
13 January 2006 the Court decided to give notice of the application
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 1943 and lives in Legnica, Poland.
A. The first set of proceedings
- On
29 November 1999 the applicant lodged a claim for rectification of an
entry in a local land register with the Legnica Regional Court (Sąd
Okręgowy). She sought to be considered as the sole owner of
the real estate that she had inherited from her late father and which
had been erroneously recorded as the joint property of the applicant
and her husband. On an unknown date she made an application for an
exemption from court fees required from her to take the proceedings
(PLN 7,500). On 15 December 1999 the Regional Court dismissed her
application.
- The
applicant lodged an interlocutory appeal against that decision.
- On
30 December 1999 the Wrocław Court of Appeal (Sąd
Apelacyjny) dismissed her appeal. As she had failed to pay the
court fees her claim was returned to her on an unknown later date.
B. The second set of proceedings
- The
applicant subsequently lodged a second claim for rectification of the
entry in the local land register. On 10 February 2000 the
Legnica Regional Court ordered the applicant to pay, within seven
days, a court fee of PLN 9,750.
- On
15 February 2000 the applicant made an application to be exempted
from court fees. The applicant maintained that she received a monthly
disability pension of PLN 1,075. In addition, she had some extra
income as she was a self employed lawyer. However, she had a
loan to pay off and a household to support since she was divorced.
She further claimed that her income only allowed her to support
herself and her daughter and that she had not been able to put money
aside for court fees.
- On
13 March 2000 the Legnica Regional Court dismissed her application.
The court held that the applicant's financial situation was sound
since she received a monthly disability pension of PLN 1,075. In
addition, the income from her law firm in November amounted to
PLN 19,563. The court further held that the applicant could not
be considered indigent since she was a practising lawyer. Lastly, the
applicant should have set aside money for the litigation.
- On
24 March 2000 the applicant filed an interlocutory appeal against
this decision. The applicant submitted that the PLN 19,563 mentioned
in her tax return constituted her gross income for the period of
eleven months. She further claimed that having to pay the full amount
of court fees would entail a substantial reduction in her standard of
living. Lastly, she argued that Article 113 of the Civil Procedure
Code provided a possibility for an exemption from court fees for a
person who could demonstrate that payment of such fees would entail a
substantial reduction in his or her standard of living. This
exemption was not only applicable to the less well-off.
- On
26 May 2000 the Wrocław Court of Appeal dismissed the
applicant's appeal. The court held that while the applicant's gross
income from her law firm in November amounted to PLN 19,563 her net
income in that month had been PLN 2,664. Considering the fact that
she also received a monthly disability pension, she could have put
aside money for the payment of court fees.
- On
26 May 2000 the court ordered the applicant to pay court fees of PLN
9,750, failing which her claim would be rejected. The applicant again
asked to be exempted from court fees, repeating her earlier
arguments.
- On
31 August 2000 the Legnica Regional Court dismissed her application.
The court held that the applicant received a monthly disability
pension of PLN 1,320 and also at least PLN 1,000 net income from her
law firm. Further, in view of the applicant's profession she could
not be considered indigent. In addition, the applicant should have
set aside the money for the litigation. Lastly, the court stressed
that:
“[the amount of] lawyers' incomes are widely
known”.
The
applicant appealed against this decision.
- On
19 December 2000 the Legnica Regional Court returned the statement of
claim to the applicant as she had failed to pay the required court
fees. According to the applicant, the decision was served on her on
22 December 2000.
C. The third set of proceedings
- On
21 April 2004 the applicant for the third time lodged a statement of
claim with the Legnica Regional Court for the rectification of the
entry in the local land register. On 12 May 2004 the court ordered
her to pay PLN 5,490 [approx. EUR 1,370] in court fees failing
which her statement of claim would be returned to her. The applicant
did not ask to be exempted from the fees. On 21 May 2004 she paid the
fees.
- On
24 September 2004 the court gave judgment and dismissed the
applicant's claim. On 28 October 2004 the applicant appealed. On an
unspecified date the court ordered her to pay PLN 5,490 in court fees
on pain of her appeal being rejected. The applicant again failed to
ask for an exemption from the court fee. On 16 November 2004 the
applicant paid the requested fee. On 12 January 2005 the Legnica
Regional Court gave judgment and dismissed the applicant's claim. The
judgment is final.
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 9).
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 her for proceeding with her claim, had been
in breach of her right of access to a court for the determination of
her 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
1. The first set of proceedings.
- The Court observes that the final decision in this set
of proceedings had been delivered on an unknown date before 10
February 2000, thus more than six months before the date on which
this complaint was submitted to the Court.
- It
follows that this part of the application has been introduced out of
time and must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
2. The second set of proceedings
- The
Government submitted that the final decision in the applicant's case
had been made on 19 December 2000. The Court received the application
form on 21 June 2001. In their opinion, the applicant had not
complied with the six month rule.
- In accordance with the established practice of the
Convention organs and Rule 47 § 5 of the Rules of Court, the
date of the introduction of an application is the date of the first
letter indicating an intention to lodge an application and setting
out, even summarily, its object. (see Chalkey v. the United Kingdom
(dec.), no. 63831/00, 26 September 2002).
- The
Court notes that the final decision in the applicant's case was given
on 19 December 2000 and served on the applicant on 22 December 2000.
On 13 June 2001 the applicant dispatched her completed application
form to the Court. The Court therefore considers the latter date as
the date of the introduction of the application. The application was
accordingly introduced within six months of the date of the final
decision.
- The
Government further claimed that the applicant had not exhausted the
available domestic remedies as she had not asked for a partial
exemption from court fees. She should have lodged an additional
motion for a partial exemption from court fees. The applicant replied
that she had exhausted the available domestic remedies, as she had
applied for an exemption from court fees. It had been for the courts
to decide whether her financial situation justified complete or only
partial exemption. She did not have to file a separate motion in this
respect.
- The
Court accepts the applicant's arguments and considers that it was for
the domestic courts to take into account all relevant factors and
make a thorough and careful assessment of the applicant's financial
situation including whether she was entitled to a partial exemption
from the court fees demanded.
-
It follows that this complaint is not inadmissible for non-exhaustion
of domestic remedies. The Court further notes that it is not
manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. Nor is it inadmissible on any other grounds. It
must therefore be declared admissible.
3. The third set of proceedings
- The Court observes that the applicant paid the fees
due in the first and second instance proceedings. The claim
was further examined on the merits by two judicial instances
and the final decision was given on it (see paragraphs 17 and 18
above). The applicant therefore obtained a determination of her claim
at the domestic level and the fact that the applicant was
required to pay court fees did not give rise to an unjustified
restriction on her access to court.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Merits
1. The parties' submissions
(a) The applicant
- The
applicant firstly stressed that she had submitted all the necessary
documents to demonstrate her actual financial situation.
- She
further claimed that the courts had assessed her financial situation
solely on the ground that she was a lawyer by profession. In addition
the courts had made wrong findings of fact as they had treated her
yearly income as her monthly income. The courts had further failed to
take into consideration her state of health and her actual earning
capacity.
- The
applicant concluded that the sum required from her had been unusually
high and disproportionate to her means. She asked the Court to find
that her right of access to a court had been breached.
(b) The Government
- The
Government firstly recalled the general rules concerning exemption
from court fees.
- They
further stressed that the amount of the fee required from the
applicant had been determined as a fraction of the value of the
claim. If she had claimed a lower amount, the fee would have been
less. In any event as the fee had concerned rectification of an entry
in a local land register she had not had to indicate the exact value
of the claim.
- 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 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.
- The
Court firstly notes that the case concerned the applicant's property
rights and rectification of an entry in a local land register. The
fee in this case was determined as a fraction of the value of the
claim, namely, the value of the real estate in question.
- The
Court observes that the judicial authorities refused to accept the
applicant's argument that she was unable to pay the court fees and
they assessed her financial situation solely on the ground that she
was a lawyer, and for that reason could not be considered poor (see
paragraphs 11 and 15 above). In addition, they appeared to equate the
applicant's monthly income with her yearly income (see paragraphs
11-13 above). On that basis, they concluded that the applicant had
had sufficient funds to pay the court fee in question.
- In
this respect the Court notes that the applicant received on average
PLN 2,500 per month (see paragraph 15 above). Nevertheless, this
sum was apparently her only asset and it does not seem reasonable to
demand that she spend it on the payment of court fees rather than on
her basic living needs.
- The
Court further observes that the domestic courts could have and should
have considered the possibility of partially exempting the applicant
from payment of the court fees due in the proceedings.
- It
is true that the applicant on the third occasion paid court fees of
PLN 5,490 for lodging her claim and the same sum for pursuing her
appeal (see paragraphs 17 and 18 above). However, this was almost
four years after her previous unsuccessful attempt to be exempted
from payment of court fees and cannot be seen as proof that, as
regards the second set of proceedings, the courts had made a correct
and fair assessment of her situation at that time. The applicant's
ability to pay court fees should have been assessed at the material
time on the basis of the particular situation in which the applicant
had found herself (see, Podbielski and PPU Polpure v. Poland,
no. 39199/98, § 68, 26 July 2005).
- Under
the circumstances and having regard to the importance of the right to
a court in a democratic society, the Court considers that the
judicial authorities failed to secure a proper balance between the
interest of the State in collecting court fees on the one hand, and
the interest of the applicant in pursuing her civil claim on the
other.
- For
the above reasons, the Court concludes that the refusal to reduce the
fee for lodging the applicant's claim constituted a disproportionate
restriction on her right of access to a court. It accordingly finds
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 PLN 40,000 in respect of pecuniary and
non-pecuniary damage.
- The
Government submitted that this sum was excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. As
to the applicant's claim in respect of non-pecuniary damage, the
Court recalls that the applicant eventually obtained a determination
of the merits of her claim in the third set of proceedings (see
paragraphs 17 and 18 above). The case differs in this respect from
earlier cases in which similar issues were raised (see, for example
the Kreuz judgment, cited above), where the size of the court
fees imposed deprived the applicant of any opportunity of obtaining a
final decision on the merits of his or her claim. However, the Court
observes that, at the time of lodging her application with the Court,
her statement of claim in the second set of proceedings had been
returned to her on the grounds that she had failed to pay the
required court fees and that in order to obtain a determination of
her claim she was obliged to commence fresh proceedings which were
not finally concluded until January 2005, some four years after the
second set proceedings had ended. In these circumstances the Court
considers that, even though the applicant may eventually have
had effective access to court to determine her
claim, she must have suffered frustration and a feeling of injustice
as a consequence of the domestic courts' refusal to exempt her from
court fees in the second set of proceedings. It therefore
finds that the applicant suffered non-pecuniary damage, which would
not be adequately compensated by the mere finding of a violation.
Making its assessment on an equitable basis, the Court awards the
applicant EUR 6,000 under this head.
B. Costs and expenses
- The
applicant did not request the reimbursement of any costs and expenses
in connection with 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 in respect of the second set of proceedings admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3 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 the rate applicable at the date of the
settlement, plus any tax that may be chargeable on the above amount;
(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 6 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
