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FOURTH
SECTION
CASE OF CIBICKI v. POLAND
(Application
no. 20482/03)
JUDGMENT
STRASBOURG
3 March
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 Cibicki 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 Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 10 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20482/03) 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, Mr Lesław Cibicki (“the
applicant”), on 13 June 2003.
- The
applicant was represented by Ms J. Okonek, a lawyer practising in
Wrocław. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz of
the Ministry for Foreign Affairs.
- The
applicant alleged that he had been deprived of his right of access to
a court, contrary to Article 6 § 1 of the Convention.
- On
10 October 2007 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
President also gave priority to the application, pursuant to Rule 41
of the Rules of the Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1931 and lives in Wrocław.
- In 1997 the applicant instituted civil proceedings in
which he asked for the division of his late parents' marital
property. The applicant's mother died in the 1960s and he was her
heir. The applicant's father died in 1992 and his second wife
inherited after him according to his last will. The applicant claimed
that his parents' marital property included a collection of
300 valuable paintings worth approximately 460,000 Polish zlotys
(PLN). The applicant's father's second wife contested the fact that
the paintings belonged to the estate in question and submitted that
they were her own assets.
- On
23 December 1997 the applicant was exempted from court fees.
- In
2001 the other party to the proceedings, the second wife of the
applicant's late father, died and her daughter joined the proceedings
as her heir.
- On
17 July 2003 the Wrocław District Court (Sąd Rejonowy)
decided of its own motion to order the preparation of an expert
opinion regarding the value and origin of the paintings allegedly
acquired during the applicant's parents' marriage. The court found
that the applicant described many of the paintings, some of which had
been in the possession of the other party and whose existence and
ownership had been contested, as belonging to his parents. The
assessment of his submissions required special knowledge concerning
the authors of the paintings, their description and authenticity. It
had thus been impossible to assess those issues without the
assistance of an expert. The court considered that since the
applicant had initiated the proceedings he should bear the costs of
the opinion and ordered him to pay PLN 5,000 (approximately 1,200
euros (EUR)) as an advance on the costs of the expert opinion.
- On
21 August 2003 the applicant applied for an exemption from court
fees. He submitted that he was a pensioner and was receiving an
old age pension of PLN 550. His unemployed wife and her mentally
handicapped brother, the latter receiving PLN 400 in invalidity
benefit, were both in his sole charge. The applicant explained that
although he had been represented by a lawyer of his choice, the
latter had not received any payment but had agreed to accept a
certain percentage of the award received at the end of the
proceedings.
- On
12 January 2004 the Wrocław District Court dismissed his
application. The court acknowledged the applicant's difficult
financial situation. However, it considered that since the beginning
of the proceedings in 1997 he should have saved money for the purpose
of paying the future court fees. The court calculated that by putting
aside between ten and twenty percent of his income the applicant
could have saved up PLN 5,000 since 1997.
- The
applicant's lawyer appealed against this decision, explaining at
length the difficult financial situation of the applicant's family.
He submitted that 75% of the family's monthly income went on rent for
their flat, monthly charges and the costs of medicines for the
applicant and his wife's brother. The remaining sum of money did not
allow for any savings; in fact, it was not sufficient for the
applicant to support himself and his family; they had been surviving
with the financial help of their friends and relatives.
- On
15 April 2004 the Wrocław Regional Court (Sąd Okręgowy)
dismissed the appeal. The court underlined the fact that the
applicant had already benefited from an exemption from the court fees
for lodging his civil claim, thus it had not been justified to expect
the State Treasury to cover further costs for the applicant.
- On
18 November 2004 the Wrocław District Court gave a decision in
the applicant's case in which it divided the property in question.
The court found that the estate in question consisted only of a
wardrobe and a grandfather clock. The applicant was awarded the
latter and ordered to pay the other party PLN 2,225 and to reimburse
them PLN 14,400 for the costs of the proceedings. With regard to the
issue of the expert opinion concerning the paintings that had been
described by the applicant as having been acquired during his
father's first marriage, the court found:
“The consequence [of the applicant's failure to
pay the court fees for the expert opinion] was to omit this evidence
as the court had established that this evidence was not necessary to
reach a decision in the instant case – it was not the only
piece of evidence on which it could base its finding. Producing this
evidence was in the applicant's own interest, as he had borne the
burden of providing evidence of the elements of the estate that
belonged to his parents and was his mother's inheritance. The
assessment of other evidence collected in the case leads to
unequivocal conclusion that the marital property in question did not
include any of the known and existing paintings of the disputed
collection.”
- The
applicant's lawyer appealed against the decision in particular as
regards the court's assessment that the paintings had not belonged to
his parents' estate.
- The
court ordered the applicant to pay court fees for his appeal in the
amount of PLN 4,649. The applicant appealed against this decision and
applied to be exempted from court fees.
- On
22 April 2005 the Wrocław District Court, composed of the same
judge who had given the decision on the merits in the applicant's
case, dismissed his application. The court found that the applicant's
financial standing had not changed since 2004 when his application
for exemption from the court fees for the expert opinion had been
dismissed. Moreover, he had not incurred any expenses afterwards as
he had failed to pay for the expert opinion. Thus, in the court's
opinion the applicant should have saved enough money to pay the
future costs of the proceedings.
- The
applicant's lawyer appealed against the decision.
- On
7 July 2005 the Wrocław District Court partly allowed the appeal
and exempted the applicant from fees exceeding PLN 600 (approximately
EUR 150). The court considered that a total refusal to exempt the
applicant from court fees for pursuing his appeal would deprive him
of the possibility to pursue his claim before the second-instance
court. It found however that the applicant would be able to pay the
sum of PLN 600 without harming his own well-being or that of his
family. It based its finding on the fact that the applicant's monthly
income was PLN 700 and the family's income had also included his
wife's brother's monthly benefit of PLN 450.
- Since
the applicant failed to pay the court fees for proceeding with his
appeal, on 19 September 2005 the Wrocław District Court rejected
the appeal.
II. RELEVANT DOMESTIC LAW
- 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 that, on account of the excessive court fees
required from him for proceeding with his appeal against the District
Court's judgment, he had been deprived of his right of access to a
court for the determination of his civil rights. The applicant
further complained under Article 6 § 1 of the Convention that
his trial had been unfair in that he had been prevented from
ascertaining by means of an expert opinion the exact value of the
inheritance in question. He submitted that the expert opinion
requested by the court had not been prepared because he had not been
able to pay the costs involved. 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 this complaint 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
Government submitted that the right of access to a court was not
absolute and the requirement to pay fees in connection with civil
claims could not be regarded as incompatible per se with
Article 6 of the Convention. They further maintained that the fee
required from the applicant in the present case had not been
excessive and had taken into consideration his difficult financial
situation of which the domestic authorities had been aware.
In
addition the Government argued that the applicant's right to fair
hearing had been respected and that the applicant while bringing a
civil action should have been aware that the proceedings might be
costly. Moreover, they submitted that the applicant could have
applied for a partial exemption from the costs entailed by the
preparation of the expert opinion.
In
sum, the Government invited the Court to find that there had been no
violation of Article 6 of the Convention.
- The
applicant generally contested the Government's submissions. He
maintained that he was very poor. He had thus expected to be exempted
from court fees in order to proceed with his civil claim and costs of
the expert opinion.
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 first determine whether, in the
particular circumstances of the present case, the fee actually
required from the applicant for pursuing his appeal constituted a
restriction that impaired the very essence of his right of access to
a court.
- In the instant case the applicant had to desist from
pursuing his appeal against the first-instance court's decision
because he had been unable to pay court fees of PLN 600.
- It
is true that no right to appeal in civil cases can be inferred from
the Convention and that, given the nature of appeal proceedings and
the fact that a person has already had his case heard before a
first-instance court, the State is in principle allowed to impose
even strict limitations on access to a court of appeal. However,
restrictions which are of a purely financial nature and which, as in
the present case, are completely unrelated to the merits of an appeal
or its prospects of success, should be subject to a particularly
rigorous scrutiny from the point of view of the interests of justice
(Podbielski and PPU Polpure v. Poland, no. 39199/98, §
65, 26 July 2005 and Teltronic-CATV v. Poland, no. 48140/99,
§ 61, 10 January 2006).
- The
Court notes that the applicant's case was heard at first instance and
that the fee for his appeal was significantly lowered following his
appeal against a decision ordering him to pay PLN 4,649 for pursuing
his appeal. The case concerned the applicant's request for the
division of his late parents' marital property. There is no evidence
to suggest that the domestic courts considered the applicant's action
to be devoid of prospects of success or of a vexatious nature. Thus
the money which the applicant was obliged to pay did not constitute a
financial barrier designed to protect the system of justice against
an unmeritorious appeal. Indeed, the principal aim seems to have been
the State's interest in deriving income from court fees in civil
cases (see Podbielski, cited above, § 66).
- The
Court further observes that the applicant was an elderly person
living of his old-age pension of PLN 700. His household included his
unemployed wife and her handicapped brother who received PLN 450 in
invalidity benefit. It is apparent from the domestic courts'
decisions that the authorities were aware of the applicant's
particularly difficult situation. Nevertheless, the courts assumed
that the applicant should have saved money since the beginning of the
proceedings in 1997 and that he should have envisaged that he would
be required to pay court fees when bringing a civil action. The Court
notes, however, that at the beginning of the proceedings the
applicant was exempted from court fees in full. Since his financial
situation did not improve thereafter he could reasonably expect that
he would not be ordered to pay court fees at later stages of the
proceedings. Moreover, the Court considers that the domestic court's
assessment of the applicant's financial situation was based on a
rather theoretical calculation of his ability to save money from a
very modest income which had to be divided among three persons. It
was established during the proceedings that the applicant's family's
income had not been enough to cover their maintenance, medication,
and other basic needs. There is nothing to suggest that the domestic
authorities believed that the applicant had other sources of income
or assets. While it is true that the applicant was partially exempted
from court fees, nevertheless the remaining sum of PLN 600 could not
be considered negligible for the applicant given that it was almost
equivalent to his monthly income.
- The
Court further notes that the applicant also complained that the
proceedings had been unfair in that the preparation of an expert
opinion, crucial for a proper assessment of his case, had depended on
his paying an advance on its costs in the amount of PLN 5,000. The
Court considers accordingly that in the course of the proceedings the
applicant was asked to pay a sum, clearly outside his financial
means, for proceeding with the preparation of the expert opinion
which was ordered by the Wrocław District Court of its own
motion (see paragraph 9 above). Moreover, he was ordered to pay an
additional PLN 150 for pursuing his appeal in which he had contested
the fact that the expert opinion had not been prepared. Since his
appeal was rejected because the applicant had not been able to pay
court fees, the manner in which the District Court handled the
evidence in his case could not have been brought to the attention of
the second-instance court.
- The
Court considers that the issue under the fair trial principle is
inextricably linked to the applicant's inability to pursue his appeal
against the District Court's judgment. 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 appeal.
For
the above reasons, the Court concludes that ordering the applicant to
bear the costs of the expert opinon, which had been considered by the
domestic court of its own motion as a necessary piece of evidence,
and the refusal to exempt him from court fees for pursuing his appeal
constituted a breach of his right to a fair trial and 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 EUR 500,000 in respect of
non-pecuniary damage.
- The
Government considered this claim excessive.
- 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 EUR 4,000 under this head.
B. Costs and expenses
- The
applicant 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the unfairness of the
proceedings and the lack of access to a court;
- 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 4,000 (four
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 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 the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 3 March 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
