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FOURTH
SECTION
CASE OF KOZŁOWSKI v. POLAND
(Application
no. 23779/02)
JUDGMENT
STRASBOURG
23 January 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 Kozłowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Mr J. Šikuta, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 4 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23779/02) 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 Antoni Kozłowski (“the applicant”), on
15 May 2002.
- The
applicant was represented by Ms Adamek Donhoffner, a lawyer
practising in Szczecin. 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
28 May 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 1954 and lives in Niechorze, Poland.
- On
7 May 1999 the applicant, in connection with a property dispute,
filed an action with the Szczecin Regional Court (Sąd
Okręgowy) seeking to have a notarial deed declared null and
void. On the same date he made an application for an exemption from
the court fees required from him to pursue the proceedings. He
declared that the value of the estate in dispute was PLN 40,500
[approx. EUR 10,000].
- On
7 July, 4 October, 13 December 1999, 25 January and
24 February 2000 the applicant made applications for his claim
to be secured.
- On
9 March 2000 the Regional Court asked the applicant to supplement his
motion and to provide a detailed statement concerning his financial
situation.
- On
10 September 1999 the applicant informed the court that the value of
the property in question was PLN 1,000,000. On 20 March
2000 the applicant submitted his declaration of means. He stressed
that he received a monthly disability pension in the amount of
PLN 324.43. In addition, during the summer season he let a shop
and bed and breakfast rooms, which brought him yearly PLN 6,075
and PLN 7,000 respectively. His monthly expenditures amounted to
PLN 1,300.
- On
2 February 2001 the Regional Court asked the applicant to supplement
his motion and to send the relevant documents confirmed by the local
tax office.
- On
2 April 2001 the applicant submitted his tax return to the Regional
Court. He attested that in addition to his disability pension, his
only income in 2000 had been PLN 8,000 (rent) and PLN 967.90
(other sources).
- On
18 May 2001 the court decided to conduct an investigation in order to
examine the applicant’s financial situation.
- On
27 July 2001 the Regional Court dismissed the applicant’s
motion for an exemption from court fees. It held that the applicant
had failed to provide information concerning his wife’s
financial situation (they had been married under the system of
separate ownership of property). The court examined the information
given in the applicant’s tax return for 2000, and in his wife’s
tax return. It further considered that the applicant had some extra
income as he was letting the shop and the bed and breakfast rooms.
Lastly, the court pointed to the fact that as the applicant had not
indicated where he lived, he must be living with his wife with whom
he maintained a common household.
- On
23 August 2001 the applicant lodged an interlocutory appeal against
that decision. He submitted that he had openly described his
financial situation and he had not concealed any extra income. In
addition to his monthly disability pension in the amount of
PLN 324.43 he received PLN 6,075 and PLN 7,000 as rent
from the shop and the rooms let to tourists. Furthermore, the
Regional Court had based its decision on conjectures and suspicions
as to the extra income received by him and his wife without any
reference to the evidence actually collected in the case. Finally,
the applicant claimed that his income only allowed him to support
himself and his son and that he had not been able to put money aside
for the payment of future court fees.
- On
24 October 2001 the Poznań Court of Appeal (Sąd
Apelacyjny) dismissed his appeal. The court reiterated that the
applicant should have put aside money for the payment of court fees.
In addition, despite the fact that the applicant had been married
under the system of separate ownership of property, he should have
provided a declaration of means in respect of his wife. In accordance
with the relevant provisions of the Family and Custody Code, married
persons were obliged to assist each other financially irrespective of
whether they were married under a system of separate or joint
ownership. In conclusion, the court found that the applicant’s
submissions that his monthly net income amounted to PLN 200 had
not been credible. As a consequence, the court refused to exempt the
applicant from the court fees due for proceeding with his civil
claim.
- On
19 November 2001 the Szczecin Regional Court ordered the applicant to
pay court fees of PLN 51,600 for lodging his statement of claim.
- As
the applicant failed to pay the required court fees, his statement of
claim was returned to him on 20 December 2001.
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).
- Article
27 of the Family and Custody Code (kodeks rodzinny i opiekuńczy)
provides in so far as relevant:
“Both
spouses, each according to his or her earning capacity, are obliged
to contribute to satisfy the family’s needs ....”
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 in his name against the decision of the Court of
Appeal.
- The
applicant replied that he had exhausted the available domestic
remedies. He could not have asked the Ombudsman to file a cassation
appeal against the decision of the Court of Appeal, as the domestic
law had not provided for a possibility to appeal against a decision
to return a statement of claim. He further considered that he had not
had any other remedies to complain about the amount of court fees
imposed.
- The
Court accepts the applicant’s arguments and considers that he
did not have to avail himself of any other domestic remedies.
- 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 Government
- The
Government recalled the general rules concerning exemption from court
fees.
- The
Government maintained that according to the Family and Custody Code
spouses were obliged to assist each other financially, irrespective
of whether they had joint ownership of property or not. For these
reasons the courts had a right to demand from the applicant
information concerning his wife’s income, even though they had
been married under the system of separate ownership of property.
- The
Government stressed that the amount of the fee required from the
applicant had been determined as a fraction of the value of the
claim. The applicant estimated the value of the property in question
at PLN 1,000,000. Hence, the court fee had been calculated in a
higher amount. In addition, the applicant had failed to submit a
certified tax declaration from his local tax office. The documents
that he had submitted had not been stamped by the local tax office.
- In
sum, the Government invited the Court to find that there had been no
violation of Article 6 of the Convention.
(b) The applicant
- The
applicant stressed that Article 27 of the Family and Custody
Code obliging spouses to help each other, and more precisely to
“contribute to satisfying the family’s needs”,
applied only to families which were running a common household.
However, the applicant and his wife had not been a family for many
years, they lived separately and they supported themselves
independently. Therefore, the applicant had not been under an
obligation to provide information about his wife’s financial
situation.
- The
applicant further argued that he had provided all the necessary
documents to substantiate his request for an exemption from court
fees. He had submitted copies of his tax declarations to the courts.
It is true that they had not been stamped by the tax office. However,
in accordance with its practice the tax office did not have to stamp
the declarations. Furthermore, had the courts had any doubts as to
the truth of the facts he had stated in his declarations, they could
have had conducted an investigation.
- The
applicant concluded that the sum required from him had been unusually
high and disproportionate to his means. Setting the court fee at more
than PLN 50,000, a sum equal to double the average annual salary
in Poland at that time, had deprived him of his right to bring his
civil claim before a court. He asked the Court to find that his right
of access to a court had been breached.
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 51,600 [approx. EUR 13,000].
- The
Court firstly notes that the case concerned the applicant’s
property rights and his request for a declaration that a notarial
deed was null and void. 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 further observes that the applicant received on average
PLN 1,400 per month and his monthly expenditures amounted to
PLN 1,300 (see paragraph 9 above). Nevertheless, this sum was
apparently his only asset and it does not seem reasonable to demand
that he spend it on the payment of court fees rather than on his
basic living needs. Furthermore, the sum required from the applicant
was equal to double the average annual salary in Poland at that time
(see paragraph 32 above). That amount if seen from the perspective of
an ordinary litigant was undoubtedly substantial. In addition, the
courts did not envisage a partial exemption from the court fees.
- The
Court notes that the judicial authorities refused to accept the
applicant’s argument that he was unable to pay the court fees
and they assessed his financial situation solely on the ground that
he must have lived with his wife and shared a household with her. The
domestic courts referred to the fact that the applicant’s
submissions that his monthly net income amounted to PLN 200 had not
been credible. On that basis, they concluded that the applicant had
had sufficient funds to pay the court fee in question. However, the
Court does not find those grounds persuasive, in particular when
weighed against the importance of securing to the applicant
“effective” access to a court. The authorities assumed
that as the applicant had not indicated where he lived he must have
been living with his wife. In addition, they stressed that married
persons were obliged to assist each other financially irrespective of
whether they were married under a system of separate or joint
ownership. However, by doing so, they disregarded the applicant’s
objections that he and his wife had not been a family for many years,
they had lived separately and they had supported themselves
independently.
- In
the 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 reduce the
fee for lodging the applicant’s claim 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. 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 150,000 in respect of pecuniary and
non pecuniary damage.
- The
Government submitted that the 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. On
the other hand, it 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 EUR 6,000
under this head.
B. Costs and expenses
- The
applicant, who was represented by a lawyer in the proceedings before
the Court, did not seek 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
- Declares unanimously the application admissible;
- Holds by six votes to one that there has been a
violation of Article 6 § 1 of the Convention;
- Holds by six votes to one
(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, 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 amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 23 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of
Court.
T.L. Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Mr Garlicki
is annexed to this judgment.
N.B.
T.L.E.
DISSENTING OPINION OF JUDGE GARLICKI
It is
with regret that I am unable to follow the majority’s position
in this case. From a general perspective, I should like to refer to
two arguments raised in the dissenting opinion of Judges Baka,
Popovic and myself in the case of Teltronic-CATV v. Poland
(no. 48140/99, judgment of 10 January 2006):
- the
legal regime governing how court fees are calculated in Poland is
based on the rule that, in principle, the fees should represent 5% of
the value of the claim. This general rule has never been called into
question by the Court. Hence, it may simply be the manner in which
this rule is applied in particular cases which prompts the Court to
find that the Convention has been violated;
- each
and every time that the Court embarks on an assessment of particular
applications of domestic legislation, it ventures into an area where
it must abide by the principle of subsidiarity. This means that the
Court must respect decisions and assessments taken by the domestic
jurisdictions unless those decisions and assessments appear to be
clearly arbitrary and/or discriminatory. In such situations, however,
the burden of proof lies with the Court.
In
the present case the domestic courts asked the applicant to submit
full information concerning his wife’s financial situation (the
couple had chosen separate ownership of property). Both the Regional
Court and, later, the Appellate Court, when refusing the applicant’s
motion for exemption from the court fees, found that he had failed to
provide that information (see paragraphs 13 and 15 of the judgment).
In my opinion, the parties have an obligation to cooperate faithfully
with the courts and should accept the consequences to provide such
cooperation. Had the applicant submitted all the requested documents
and had the domestic courts, on assessing those documents, refused
exemption from the fees, the compatibility of such a refusal with the
Convention standards could have been challenged before our Court.
Only then could an argument alleging arbitrariness in the domestic
courts’ disregard of the legal relations governing his marriage
have been raised in a valid manner. Given the manner in which events
developed in this case, it is the applicant who should be blamed for
its outcome.
Finally,
I am not convinced by the Court’s approach to calculating the
just satisfaction award. I have the impression that, as in other
Polish cases concerning court fees, the calculation was done in a
schematic manner. In particular, the Court did not establish whether
the return of the applicant’s statement of claim resulted in an
irrevocable loss of the opportunity to have his case heard. Only in
such a situation would the relatively high level of the just
satisfaction award appear justified.
