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
MALAHOV v. MOLDOVA
(Application
no. 32268/02)
JUDGMENT
STRASBOURG
7 June
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 Malahov v. Moldova,
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 15 May 2007,
Delivers
the following judgment, which was adopted on the that date:
PROCEDURE
- The
case originated in an application (no. 32268/02) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mrs Antonina Malahov (“the applicant”)
on 9 July 2002.
- The
applicant was represented by A. Petrenco, a lawyer practicing in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Pârlog.
- The
applicant alleged, in particular, that the domestic courts' refusal
to examine her claims due to her inability to pay court fees had
violated her rights guaranteed under Articles 6 § 1 and 13 of
the Convention and that she had been discriminated against because of
her ethnicity.
- The
application was allocated to the Fourth Section of the Court. On
22 September 2005 a Chamber of that Section decided to
communicate 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 1942 and lives in Chişinău.
She is a pensioner.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The
applicant worked for a company in Chişinău. Besides her
salary, she allegedly received fees, which were transferred to an
account opened for her in the company's name. After retirement, she
requested the company to transfer to her account all the fees
accumulated (which she estimated at 25,278 United States Dollars
(USD)). When the company refused to do so, she initiated court
proceedings.
- She asked the court to waive the obligation to pay
court fees on the ground of her poor financial situation. In
particular, she produced evidence showing that her only income was a
monthly State pension of 102 Moldovan lei (MDL), equivalent to
8.7 euros (EUR) which barely allowed her to survive.
- On 28 April 2000 the Râşcani
District Court exempted the applicant from the payment of court fees
because of her poor financial situation. On 31 January 2001 the court
rejected her action and ordered the applicant to pay court fees of
MDL 9,600 (EUR 826).
- The Chişinău Regional Court requested
pre-payment of additional court fees for examining her appeal. The
court reduced those fees by half (from the original MDL 7,200 to
MDL 3,600 (EUR 307)) “taking into account the provisions
of Article 89 of the Code of Civil Procedure and the financial
situation of [the applicant]”.
- The applicant signed two summonses forms informing the
parties about the dates of the next hearings (30 October 2001 and 20
November 2001), which also included the phrase “[Appellant]
Malahova A.S. shall pay in court fees 3,600 [MDL]”.
- On 29 October 2001 the applicant requested the court
to waive the court fees altogether given her financial situation (her
pension was MDL 143 (EUR 12.2) by that time) and the
labour-related character of her claim (she argued that her unpaid
fees amounted to “other claims related to work activities”
and, according to the law, she should be exempted from court fees).
She relied on Article 88 (1) of the Code of Civil Procedure (see
paragraph 16 below).
- On 20 November 2001 the court refused to examine
her case because she had failed to pay the court fees. It did not
analyse her financial situation or respond to her claim that the case
concerned payment for work performed and, as such, was not subject to
the payment of court fees.
- In
her appeal the applicant invoked her inability to pay the court fees
and relied on the evidence of her small pension, as well as on the
fact that her husband was unemployed and had no income. She relied on
Article 89 of the Code of Civil Procedure (see paragraph 16 below).
- On 10 January 2002 the Court of Appeal upheld the
lower court's decision. The court, without referring to the
applicant's sources of income or analysing her financial situation
other than referring to the documents already in the file, found that
the applicant had not presented proof of her inability to pay the
court fees. The decision was final.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Code of Civil
Procedure, in force at the relevant time, read as follows:
“Article 83. Litigation expenses
Litigation expenses include court fees and expenses
related to the court proceedings.
Article 84. The amount of court fees
Court fees shall be due for actions lodged by natural
persons ..., for appeals and appeals in cassation...:
(1) For court actions of a pecuniary nature, lodged by
natural persons – 3% of the value of the action or of the
amount sought...;
(11) For appeals – 75% of the court fees due when
lodging the action ...;
(12) For appeals in cassation – 50% of the court
fees due when lodging the action ...;
Article 88. Exemption from court fees
The following shall be exempted from paying court fees:
(1) plaintiffs (natural persons) – in actions
regarding the payment of sums for work performed and other
labour-related claims;...
Article 89. Waiver of court fees
In certain cases the court (the judge) may exempt partly
or entirely a person from paying court fees, taking into account the
person's financial situation ...”
THE LAW
- The
applicant complained that the refusal of the higher courts to examine
the substance of her case had constituted a breach of Article 6 §
1 of the Convention, the relevant part of which reads:
“1. In the determination of his civil
rights and obligations ..., everyone is entitled to a hearing ....”
- The
applicant also complained about a violation of Article 13 of the
Convention in conjunction with Article 6 because she had no effective
remedy in respect of her complaint concerning the obligation to pay
court fees. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
applicant further complained under Article 14 of the Convention, in
conjunction with Article 6, claiming that she had been discriminated
against as she belonged to the Russian-speaking minority. She stated
that she had been given summonsed to sign in Romanian, which she had
not understood. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
applicant finally contended that Article 17 of the Convention had
been violated by the authorities' “purposeful destruction of
her right to a fair trial”. Article 17 reads as follows:
“Nothing in [the] Convention may be interpreted as
implying for any State, group or person any right to engage in any
activity or perform any act aimed at the destruction of any of the
rights and freedoms set forth herein or at their limitation to a
greater extent than is provided for in the Convention.”
I. ADMISSIBILITY OF THE COMPLAINTS
- The
Court considers that the applicant's complaints under Articles 14
and 17 of the Convention are unfounded. She has not provided any
details to substantiate them and there is nothing in the case file
which assists in this connection. She does not contend that she did
not understand the nature of the two summonses (see paragraph 11
above), and she was allowed to submit all her documents in Russian.
The issue of the sentence appearing in the summonses regarding the
obligation to pay court fees shall be examined as part of her
complaint under Article 6 of the Convention.
Accordingly,
these complaints are manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention and must be
rejected under Article 35 § 4.
- The
Court considers that the applicant's complaints under Articles 6 and
13 of the Convention raise questions of fact and law which are
sufficiently serious that their determination should depend on an
examination of their merits. No grounds for declaring them
inadmissible have been established. The Court therefore declares
these complaints admissible. In accordance with its decision to apply
Article 29 § 3 of the Convention (see paragraph 4
above), the Court will immediately consider the merits of the
complaints.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. Arguments of the parties
- The
applicant complained that the refusal of the Chişinău
Regional Court and the Court of Appeal to examine the substance of
her claim due to her inability to pay court fees breached her right
of access to a court, guaranteed by Article 6 § 1 of the
Convention.
- The
Government disagreed and considered that the applicant had been given
sufficient assistance by way of reducing the court fees due.
Moreover, she had signed two documents confirming her obligation to
pay court fees of MDL 3,600, thus acknowledging her ability to
pay that sum (see paragraph 11 above). Finally, not only was the
applicant given sufficient time to pay the court fees, she also
benefited from a full exemption from payment of the court fees by the
first-instance court and a partial reduction by the second-instance
court.
B. The Court's assessment
1. General principles
- The
Court reiterates that Article 6 § 1 secures to
everyone the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal. In this way, that
provision embodies the “right to a court”, of which the
right of access, that is the right to institute proceedings before a
court in civil matters, constitutes one aspect only; however, it is
an aspect that makes it in fact possible to benefit from the further
guarantees laid down in paragraph 1 of Article 6. The fair, public
and expeditious characteristics of judicial proceedings are indeed of
no value at all if such proceedings are not first initiated. And in
civil matters one can scarcely conceive of the rule of law without
there being a possibility of having access to the courts (see, among
many other authorities, Golder v. the United Kingdom,
judgment of 21 January 1975, Series A no. 18, pp. 16-18, §§
34 in fine and 35-36; Z and Others v. the United Kingdom
[GC], no. 29392/95, §§ 91 93, ECHR 2001-V;
and Kreuz v. Poland, no. 28249/95, § 52, ECHR
2001 VI).
- The
“right to a court” is not absolute. It may be subject to
limitations permitted by implication because the right of access by
its very nature calls for regulation by the State. Guaranteeing to
litigants an effective right of access to courts for the
determination of their “civil rights and obligations”,
Article 6 § 1 leaves to the State a free choice of the means to
be used towards this end but, while the Contracting States enjoy a
certain margin of appreciation in that respect, the ultimate decision
as to the observance of the Convention's requirements rests with the
Court (see Golder and Z and Others, cited above, ibid.,
and, mutatis mutandis, Airey v. Ireland, judgment of 9
October 1979, Series A no. 32, pp. 14-16, § 26).
- The
Court has ruled that in some cases, in particular where the
limitations in question related to the conditions of admissibility of
an appeal, or where the interests of justice required that the
applicant, in connection with his appeal, provide security for costs
to be incurred by the other party to the proceedings, various
limitations, including financial ones, may be placed on the
individual's access to a “court” or “tribunal”
(see, for instance, Brualla Gómez de la Torre v. Spain,
Reports of Judgments and Decisions 1997-VIII, p. 2955, §
33, and Tolstoy-Miloslavsky v. the United Kingdom, judgment of
13 July 1995, Series A no. 316-B, pp. 80-81, §§ 61 et
seq.).
- The
Court underlines that a restriction placed on access to a court or
tribunal will not be compatible with Article 6 § 1 unless it
pursues a legitimate aim and there is a reasonable relationship of
proportionality between the means employed and the legitimate aim
sought to be achieved (see, for instance, Tinnelly & Sons Ltd
and Others and McElduff and Others v. the United Kingdom, Reports
1998-IV, p. 1660, § 72).
- The
Court further recalls that, when assessing compliance with the
above-mentioned standards, its task is not to substitute itself for
the competent domestic authorities in determining the most
appropriate means of regulating access to justice, nor to assess the
facts which led those courts to adopt one decision rather than
another. The Court's role is to review under the Convention the
decisions that those authorities have taken in the exercise of their
power of appreciation and ascertain whether the consequences of those
decisions have been compatible with the Convention (see, mutatis
mutandis, Tolstoy-Miloslavsky, cited above, ibid.,
and Brualla Gómez de la Torre, cited above, § 32
in fine).
- The
Court would finally reiterate that its scrutiny is based on the
principle that the Convention is intended to guarantee not rights
that are theoretical or illusory but rights that are practical and
effective. This is particularly so of the right of access to the
courts in view of the prominent place held in a democratic society by
the right to a fair trial (see Airey, cited above, pp. 12-14,
§ 24, and Aït-Mouhoub v. France, judgment of
28 October 1998, Reports 1998-VIII, p. 3227, § 52).
2. Application of these principles to the present case
- The
Court notes that none of the domestic courts examined in detail the
applicant's financial situation. While using general phrases such as
“taking into account [the applicant's] financial situation”,
the courts never referred to specific evidence of this (see
paragraphs 9, 10 and 13 above). On the other hand, the applicant
provided specific information regarding her relatively modest pension
as her only source of existence (see paragraph 8 above). None of the
courts expressed any doubts as to either the amount of her pension or
the existence of other sources of income.
- Moreover,
while the first-instance court found that the applicant was unable to
pay the court fees, it made her pay them after rejecting her claims.
The court did not explain the reasons for this change of position,
nor did it refer to any new evidence showing that the applicant's
financial situation had drastically improved. When the Chişinău
Regional Court examined the applicant's request for a waiver of the
court fees, it did not take into consideration the fact that the
applicant was already under the obligation to pay MDL 9,600 in court
fees. Moreover, the additional MDL 3,600 which she was required
to pay for her appeal to be examined, meant that the final sum due
was over 90 times her monthly income. Even if, some five years later,
the applicant appears to have found the means to pay a substantial
amount of fees to her lawyer (see paragraph 48 below), there is
nothing in the domestic courts' decisions suggesting that they had
found evidence that the applicant was able to pay the court fees at
the time of the events.
- In
addition, under domestic law (see paragraph 16 above) litigants in
court actions regarding “other labour-related claims”
were expressly exempted from court fees, regardless of their
financial situation. The applicant expressly referred to that legal
provision in one of her appeals, but the courts did not respond to
her arguments (see paragraph 12 above).
- The
Government's reliance on the two documents signed by the applicant
does not controvert the above findings as they do not prove that she
had the ability to pay the court fees. Moreover, these documents,
which the applicant could not have refused to sign as they also
contained summonses to attend court hearings, were not referred to by
the courts when rejecting her requests for a waiver of the court fees
and are thus irrelevant to the present application.
- The
Court concludes that the domestic courts failed to carry out a proper
assessment of the applicant's ability to pay the court fees, as well
as to respond to her submission that she was entitled to an exemption
due to the nature of her claims. The court fees required from the
applicant were, moreover, clearly excessive in comparison with her
resources at the time.
- The
Court therefore considers that the imposition of the court fees on
the applicant 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.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant also complained about the lack of effective remedies in
respect of her complaint, contrary to Article 13 of the Convention,
since the courts refused to examine her civil action.
- The
Government disagreed and asked the Court to reject the complaint.
- The
Court considers that the complaint under Article 13 of the Convention
essentially repeats the complaint made under Article 6 examined
above. Accordingly, it does not consider it necessary to examine this
complaint separately.
IV. 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. Pecuniary damage
- The
applicant claimed EUR 25,278 for pecuniary damage, corresponding to
the amount which she had claimed in the domestic proceedings from her
former employer but had been prevented from obtaining as a result of
the refusal of the courts to examine her case.
- The
Government asked the Court to reject this claim as there had been no
violation of any of the applicant's rights, the courts having taken
all reasonable steps to examine her case.
- The
Court does not see any causal link between the violation of Article 6
§ 1 it has found and the amount claimed in the domestic
proceedings. In particular, it cannot speculate as to the outcome of
the proceedings had the applicant's case been examined in its
substance. Therefore, it rejects this claim for compensation.
B. Non-pecuniary damage
- The
applicant claimed EUR 7,000 for non-pecuniary damage resulting from
the anguish and humiliation of seeing her case rejected without
examination by the courts.
- The
Government disagreed and asked the Court to reject this claim as
unsubstantiated.
- The
Court considers that the applicant must have been caused a certain
amount of stress and frustration as a result of the breach of her
right of access to a court. Making its assessment on an equitable
basis, it awards the applicant EUR 1,800 for non-pecuniary damage.
- However,
the Court also notes that the applicant continues to be subject to
the consequences of the refusal of the domestic courts to examine the
substance of her case. It considers that the most appropriate form of
redress for this continuing situation would be for the applicant's
appeal against the judgment of 31 January 2001 to be examined (see,
mutatis mutandis, Bujniţa v. Moldova,
no. 36492/02, § 29, 16 January 2007).
C. Costs and expenses
- The applicant claimed EUR 600 for costs and expenses.
She relied on a receipt of payment of that amount to her lawyer based
on contract no. 183 of 28 February 2006, as well as on the
decision of the Moldovan Bar Association adopted on 29 December 2005,
which set out the recommended level of remuneration for lawyers
representing applicants before international courts.
- The
Government considered this claim to be unjustified, given the
economic realities of life in Moldova. They argued that the applicant
had not submitted a copy of the contract for her representation.
-
The Court recalls that in order for costs and expenses to be
reimbursed under Article 41, it must be established that they were
actually and necessarily incurred and were reasonable as to quantum
(Croitoru v. Moldova, no. 18882/02, § 35,
20 July 2004). According to Rule 60 § 2 of the
Rules of Court, itemised particulars of claims made are to be
submitted, failing which the Chamber may reject the claim in whole or
in part.
- The
Court notes that the applicant has not submitted a list of hours
worked by her lawyer on her case. At the same time, the lawyer has
clearly carried out a certain amount of work and the payment, which
does not appear unreasonable, has already been made, as confirmed by
the receipt. The Court therefore allows this claim in full.
D. 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 admissible the applicant's complaints
under Articles 6 and 13 of the Convention and the remainder of the
application inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 13 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 1,800 (one
thousand eight hundred euros) in respect of non-pecuniary damage and
EUR 600 (six hundred euros) in respect of costs and expenses, to be
converted into the national currency of the respondent State at the
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 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 7 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
