CASE OF MARINA v. LATVIA

THIRD SECTION

CASE OF MARINA v. LATVIA

(Application no. 46040/07)

JUDGMENT

STRASBOURG 

26 October 2010

FINAL

26/01/2011

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Marina v. Latvia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Ineta Ziemele,
Luis López Guerra, judges,
and Santiago Quesada, Section Registrar,

Having deliberated in private on 5 October 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 46040/07) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Ms Nadežda Marina (“the applicant”), on 27 September 2007.

2. The applicant, who had been granted legal aid, was represented by Ms Dana Rone, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.

3. The applicant alleged that her right of access to a court was violated in that the excessive amount of the court fee requested for lodging a claim prevented her from submitting a claim to the court.

4. On 4 September 2009 the President of the Third 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 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASEThe applicant was born in 1938 and lives in Rīga.From an unspecified date, the applicant, together with her partner V.M., made use of a plot of land in Carnikava parish. The rights to use the land were allocated to the latter by a decision of the Carnikava Municipality. The property consisted of a dwelling house with an extension, greenhouses and a garden. After the death of the applicant's partner in 2000 and the applicant's subsequent eviction from an apartment in Rīga, she continued to reside in the property in Carnikava parish and to gain an income by selling the products cultivated there.In July 2005 the applicant found out that the dwelling house, greenhouses and the garden had been destroyed. She requested that criminal proceedings be instituted against the alleged perpetrator, P., who did not contest the allegations.On 9 September 2005, having examined the applicant's complaints, the police officer of the Saulkrasti Police Department refused to institute criminal proceedings on the grounds that the rights to use the aforementioned property had passed to J.M. (the son of the late V.M.) and no complaints whatsoever had been received from him regarding the alleged destruction of the property.

1.The applicant's low-income statusFrom 2005 onwards the applicant has been repeatedly considered as a “low-income person” (maznodrošināta persona), as the amount of her old-age retirement benefit did not exceed 125 % of the established minimum monthly salary in the Republic of Latvia. From September 2004 to the present day the applicant has been renting an apartment in a social building where the monthly utilities charges have averaged LVL 25 (EUR 36) in the winter and, around LVL 12 (EUR 17) in the summer. Apart from receiving an old-age retirement pension in the amount of LVL 75.60 (EUR 107) (the amount at the material time), in 2006 and 2007, at the time of bringing the civil proceedings the applicant was also in receipt of the following municipality assistance: a housing allowance averaging LVL 3 (EUR 5) per month; two lump-sum payments together totalling LVL 50 (EUR 71) assigned to cover housing and utilities expenses; health insurance in the amount of LVL 45 (EUR 64) and a lump sum in the amount of LVL 20 (EUR 29) to improve the condition of her health.

2.The applicant's first attempt to initiate civil proceedingsOn 29 September 2005 the applicant lodged a claim for damages against P. in the amount of LVL 171,110 (EUR 244,443) and asked the court for exemption from the court fee (also referred to as a State fee) in the amount of LVL 1,503.33 (EUR 2,148) owing to her poor financial situation. In support of her application, the applicant attached thereto a certificate confirming her low-income status.On 3 October 2005, by a decision of the Rīga Regional Court, the applicant's claim for damages was dismissed on the grounds that she had failed to demonstrate that she had the right to use the aforementioned property.On 8 November 2005, on the applicant's appeal, the Civil Chamber of the Supreme Court revoked the above decision and forwarded the matter for examination once again ,finding that:

“The Civil Law grants to everyone a right to claim damages. [I]n a situation where damage has been inflicted, everyone is entitled to come before a court in order to protect their infringed rights. [Thus], the applicant has a right to claim damages, and this should not be linked to her rights to [...] use the [property]”. On 25 November 2005 the Rīga Regional Court partly upheld the applicant's request and reduced the amount of the court fee to LVL 100 (EUR 143).On 1 March 2006 the Civil Chamber of the Supreme Court dismissed the applicant's ancillary complaint whereby she requested a further reduction in the court fee. The court noted that the claim concerned material damages and that there was no ground for a further reduction. It noted inter alia:

“Pursuant to section 43 § 4 of the Law of Civil Procedure the applicant can ask to postpone payment of the court costs allocated to State revenue, or divide payment thereof into instalments.”Subsequently the applicant asked for postponement of payment of the fee until the court adopted a decision concerning her claim. On 12 April 2006 the Rīga Regional Court dismissed the applicant's request, noting:

“Section 43 § 4 of the Law of Civil Procedure authorises the court to postpone or divide into instalments only those court costs which had been allocated to State revenues, [and it does not authorise] the postponement of [the paying of] State fees at the time of lodging a claim”.On 7 September 2006 the Civil Chamber of the Supreme Court dismissed the applicant's complaint and upheld the lower court's decision.

3.The applicant's second attempt to initiate civil proceedingsOn 12 January 2007 the applicant lodged an identical claim for damages and asked to be exempted from payment of the court fee. She argued that her financial situation was poor, that her property had been destroyed, and her only income was an old-age pension.On 17 January 2007, the Rīga Regional Court partly upheld the applicant's request and again reduced the fee to LVL 100 (EUR 143), taking account of the reasoning underpinning the decision adopted on 25 November 2005 by the Rīga Regional Court in identical circumstances.In an ancillary complaint, the applicant appealed against the partial reduction of the court fee and explained that her monthly old-age pension was about LVL 75.60 (EUR 107), from which she had to clear the rent and utilities arrears for the apartment she had been evicted from.On 5 March 2007 the Civil Chamber of the Supreme Court, in a final decision, upheld the decision of the lower court, noting that there were no grounds for a further reduction of the State fee or complete exemption. It stated inter alia that:

“Pursuant to section 43 § 4 of the Law of Civil Procedure the applicant can ask to postpone payment of court costs as allocated to State revenues, or divide payment thereof into instalments.”The court subsequently set a time-limit of 7 May 2007 by which the applicant was obliged to rectify the deficiencies of her claim, i.e. add proof of payment of the court fee.According to the Government, the decision was served on the applicant not later than 12 March 2007. According to the applicant, she received the above decision on 14 May 2007.

II. RELEVANT DOMESTIC LAW

A. Law of Civil ProcedureSection 33 Costs of adjudication:

(1) Costs of adjudication are court costs and costs related to case proceedings.

(2) Court costs are:

1) State (court) fees;

2) office fees; and

3) costs related to adjudicating a case.

(3) Costs related to case proceedings are:

1) costs related to the assistance of lawyers;

2) costs related to attendance at court sittings; and

3) costs related to gathering evidence.

 Section 34 State (court) fees:

(1) For each statement of claim – original claims or counterclaims, applications of a third person statement of claim with an independent claim regarding the subject-matter of the dispute, submitted in a procedure which has already commenced, applications in special adjudication procedure matters, and other claims applications provided for in this Section submitted to the court – a State fee shall be paid in the amount set out as follows:

1) in regard to claims assessable as to monetary value:

[...]

(f) from LVL 100,001 to LVL 500,000 – LVL 1,290 plus 0.3 per cent of the amount claimed exceeding LVL 100,000.Section 43 Exceptions from general provisions regarding court costs:

(4) A court or a judge, upon considering the material situation of a natural person, shall exempt him or her partly or fully from the payment of court costs into State revenues, as well as postpone payment of court costs allocated to State revenues, or divide payment thereof into instalments.Section 56¹ provides that in a situation where court documents are sent by post, it ought to be assumed that a document will reach the recipient within seven days following the day on which it was posted.Section 133 § 5 provides that when a civil claim has not been allowed, the applicant bringing the claim is not prevented from repeatedly submitting an identical claim in compliance with the general procedures prescribed in this Law.

B. Regulations No. 86 of Rīga City CouncilAccording to paragraph 3.1., a “low-income status” is, inter alia, that granted to an individual who receives an old-age pension, resides alone, and whose monthly income does not exceed 125% of the minimum salary as prescribed by law. Besides, in order to be granted low-income status, the person has to prove that she or he does not own a property that could be used to generate income and that she or he has no debts and is not owed money.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTIONThe applicant complained that she was denied access to a court as provided in 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.”Admissibility

1. Incompatibility ratione materiaeThe Government contested the applicability of Article 6 by arguing that there was no legal basis in domestic law for the applicant to claim a title to the property which was subject to her claim for damages, thus, the applicant could not claim to have a right established under the domestic law.The Court reiterates the basic principles for Article 6 § 1 in its civil aspect to be applicable, according to which, inter alia, there must be a dispute over a “civil right” recognised under domestic law (see, among many others, Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009‑ ...;).It is noteworthy that identical grounds for inadmissibility were already dismissed by a domestic court (see § 12). It explicitly acknowledged that a right to claim damages is an independent, justiciable right, therefore, in circumstances where damage has been caused, everyone is entitled to judicial protection and recovery of damages, independent from the settlement of disputes over other rights, such as property rights.The Court considers that there is a dispute over a right to claim damages in the light of Article 6 § 1 of the Convention and the Court accordingly dismisses the above-mentioned Government's objection.

2. Non-compliance with Article 34 of the Convention and Rule 47 of the Rules of the Court, and the six- month ruleThe Government further argued that the applicant has not cooperated with the Court as required by Rule 47 of the Rules of Court, in particular, that she has failed to submit evidence concerning her observance of the six-month rule laid down in Article 35 § 1 of the Convention. In this regard, the Government referred to Lord Woolf who in the Review of the Working Methods of the European Court of Human Rights recommended the Court to deal only with properly completed application forms which contained all the information required for the Court to process them.The Government raised two arguments with respect to the non-observance of the six-month rule. First, it contended that the six-month period was calculated as having started after the adoption of the final decision in the first set of civil proceedings instituted by the applicant (see §§ 10-16), and that by attempting to bring a repeat civil claim the applicant explicitly sought the commencement of a new six-month calculation period. Secondly, the Government maintained that the final domestic decision, i.e. the decision of the Supreme Court of the Republic of Latvia, was posted to the applicant on 5 March 2007 and, in reliance on section 56¹ § 3 of the Law on Civil Procedure, it should be assumed that the letter had reached the applicant within seven days after the day on which it was posted, i.e. on 12 March 2007. Making the observation that the applicant had not proved otherwise, the Government invited the Court to conclude that by lodging the application with the Court on 27 September 2007 she had failed to observe the six-month time-limit.The applicant's representative disagreed − explaining that the applicant could not pay the requested court fee at the time of lodging the claim for the first time, so she submitted a repeat claim sometime later. The representative also noted that at the end of March 2007 the applicant received the final decision of the Supreme Court sent by normal post.The Court notes that the above objections raised by the Government are closely related and shall be examined together, beginning with the six-month rule arguments. As to the Government's first argument, the Court observes that, on 12 April 2006, the applicant's claim was returned owing to her failure to pay the court fee. Pursuant to section 133 § 5 of the Law of Civil Procedure the applicant was not precluded from re-submitting an identical claim which was treated by the national court as a new claim, independent from the applicant's previous unsuccessful claim.As to the second argument, the Court reiterates that where an applicant is entitled to be served with a written copy of a final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment (see Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997-V). In the instant case the Court notes that there is disagreement between the parties as to the exact date when the final decision was served to the applicant.In response to the Registry's request to the applicant to explain when exactly she was served with the final decision, she furnished a copy of a registered envelope bearing the postmark of 11 May 2007, in which she had allegedly received the final domestic decision adopted on 5 March 2007. The envelope does not, however, disclose the identity of the sender, besides, the above submission is contrary to the later submissions provided by the applicant's representative before the Court (see § 36). The applicant had also contacted the Supreme Court and forwarded to it the Registry's request, however, the response did not refer to the date when the final decision was served to her.In this regard the Court reaffirms the importance of compliance with the requirements laid down in paragraphs 1 and 2 of Rule 47 of the Rules of the Court, and reiterates that failure to cooperate on an applicant's part may result in the application not being examined by the Court.However, where it can be proved that an applicant has shown reasonable effort in complying with the above requirements, the Contracting Authority against whom the complaint was brought has an obligation deriving from Article 38 of the Convention, in particular, to provide information requested by the Court. Thus, a formal reference to a provision of a domestic law cannot be considered adequate in these circumstances where the applicant, who was an elderly person and without legal representation at the time of lodging the complaint before the Court, has proved that she did attempt to obtain the requested information to the best of her ability.In the absence of any evidence to the contrary from the Government, for instance, a copy of the registrar's journal of the Supreme Court concerning outgoing mails on 5 March 2007, it could be inferred from the case materials that after the expiry of the deadline set by the Rīga Regional Court the claim was returned to the applicant (see § 21) in the envelope posted on 11 May 2007, and that the final decision of 5 March 2007 was sent to the applicant together with the rest of the documents.In the particular circumstances it can be concluded that the applicant acted with reasonable expedition for the purposes of Article 35 § 1 of the Convention.

3. Non-exhaustion of domestic remediesThe Government also contended that the applicant has the right to file another identical civil claim with the domestic court claiming compensation, either in the same amount − while at the same time providing sufficient proof as to her financial situation, or by reducing the unreasonably high amount of the initial claim for compensation. The applicant disagreed.The Court considers that these arguments are closely related to the merits of the case.The Court concludes 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' submissionsThe Government considered that the court fee imposed on the applicant was proportionate because, first, the applicant herself failed to provide the national court with any further evidence which would enable it to objectively assess her actual financial situation, and that the applicant's reference to her status of a low-income person was insufficient proof; and secondly, the Government differentiated the instant complaint from the Kreuz v. Poland, no. 28249/95, ECHR 2001‑VI, Podbielski and PPU Polpure v. Poland, no. 39199/98, 26 July 2005 and other similar applications already examined by the Court, and found similarities with the application Kupiec v Poland, no. 16828/02, 3 February 2009, in that, in the instant case, the applicant had deliberately inflated the value of her claim and that the court fee would be automatically decreased had the applicant herself claimed a reasonable amount of compensation.The applicant's representative disagreed and contended that the court was aware of the applicant's inability to pay the court fee and that the compensation sought by her was appropriate for the damage she sustained.

2. Principles established by the courtThe requirement to pay fees to civil courts at the time of bringing a claim cannot be regarded as a restriction on the right of access to court incompatible per se with Article 6 § 1 of the Convention, provided that the very essence of the right of access to court is not impaired and the measures applied are proportionate to the aims pursued in the light of Article 6 (see, among other authorities, Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 59, Series A no. 316‑B).The Court has noted that such features as the applicant's ability to pay the court fees and the stage of the proceedings reached at the time the fees are imposed are taken into account in the assessment of whether access to the court has been impaired (Paykar Yev Haghtanak Ltd v. Armenia, no. 21638/03, § 48, 20 December 2007). The Court has also noted that restrictions of a purely financial nature which are completely unrelated to the prospects of success of the claim should be subject to a particularly rigorous scrutiny from the point of view of the interests of justice (see Podbielski and PPU Polpure v. Poland, no. 39199/98, § 65, 26 July 2005).

3. Application of the principlesThe Court notes, at the outset, that the obligation to pay a court fee pursuant to the Law of Civil Procedure was calculated from the value of the claim, therefore even if not related to the prospects of success of the claim, the court fee partly served as a measure dissuading potential litigants from bringing unreasonable and unmeritorious claims. In order to guarantee a fair balance between the aforementioned aim, i.e. to preserve the smooth functioning of the judiciary, and to safeguard the interests of the applicant in bringing a claim before a court, the national courts grant exemptions from court fees to those applicants who can prove their poor financial situation.The Government, on their part, argued that there was insufficient evidence available to the domestic courts as to the applicant's financial situation.It is not for the Court to substitute its own assessment of the facts for that of the domestic court (see, inter alia, Klass and Others v. Germany, 6 September 1978, § 29, Series A no. 28). Nevertheless it cannot disregard the fact that the local municipality repeatedly recognised the applicant's status as a low-income person. Pursuant to domestic law, the status of a low-income person is granted after a thorough assessment of the person's financial situation, and entitlement to this status is periodically reviewed. Besides, entitlement to this status also presupposes that the individuals have no property from which they could generate income (see § 28 above). In this regard the Court makes a distinction from the Kupiec case (cited above) where it was proved that the applicant did own property which could be used in this way for covering the court fee.The Court considers that where a competent national authority has already assessed the financial status of an applicant and concluded that the person is in need of special attention due to poor financial circumstances, the domestic courts should be particularly concerned as to whether the financial burden incurred for bringing a claim is proportionate to the individual's ability to pay.In the applicant's case, her monthly income in 2007 did not exceed LVL 76 (EUR 108). It was not disputed by the Government that the national court authorities, acting without excessive formality, obtained this information from the documents submitted by the applicant upon her first attempt to lodge a claim (see § 18 above; contrast, Miholapa v. Latvia, no. 61655/00, § 28, 31 May 2007). Each year the Cabinet of Ministers sets the guaranteed minimum income level (GMI) per person per month, based on which local municipalities may decide whether a particular person can be classified as “poor” or as a “low-income” person. In the applicant's place of residence in 2007 the GMI was LVL 45, thus, even without additional evidence received from the applicant, the domestic courts could conclude that the applicant's income, after taking into account the monthly minimum income level, did not exceed LVL 37 (EUR 53). With this information the national courts had to assess whether the reduced court fee in the amount of LVL 100 (EUR 143) was proportionate.Observing that there was adequate information for the domestic courts to evaluate the applicant's financial situation (in contrast to Kupiec where the applicant refused to provide the requested bank information), the Court shall now address the Government's argument that, first, the applicant deliberately inflated her claim, and, secondly, that she could, and still can, bring a repeat claim for a lower amount before the court.The applicant admitted before the domestic courts that the value of the damages claimed was estimated as she did not have the resources to arrange for an inspection of the damage by an expert. It appears from the case materials that the domestic courts did reduce the overall State fee to LVL 100, which suggests that, for the national courts, the value of the claim, in principle, was not an obstacle to the reduction of the court fee. Thus, when examining a request for the reduction of a court fee owing to an applicant's poor financial situation, a value of the claim does not appear to automatically prevent domestic courts from reducing the court fee, although it could serve as one of the elements in the assessment of its proportionality.With respect to the second argument about the applicant's prospects as regards the bringing of identical claims repeatedly before the courts, the Court cannot disregard the conflicting decisions adopted by the domestic courts.In particular, section 43 § 4 of the Law of Civil Procedure inter alia provides that, upon assessing the material circumstances of an individual, the court can postpone the payment of court costs (which comprise also the court fee; see section 33 § 2 of the Law of Civil Procedure above) allocated to State revenues, or can divide the payment thereof into instalments. For the first time the domestic court referred to the above provision in the decision of 1 March 2006 (see § 14 above), but the applicant's request to postpone the paying of the State fee was dismissed by a decision of 12 April 2006 in which the court explained that that particular part of the provision did not apply to a court fee payable at the time of lodging a claim. Nevertheless, during the applicant's second attempt to lodge a civil claim, the Civil Chamber of the Supreme Court, in a decision of 5 March 2007, repeatedly referred to the aforementioned part of section 43 § 4 (see § 20 above), thereby suggesting that the postponement of the payment of a court fee could still be possible.The Court recalls that its jurisdiction to verify that domestic law has been correctly interpreted and applied is limited to ensuring that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable (see, inter alia, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007-...), therefore it is not the Court's function to assess whether the above procedural provision precluded the domestic courts from postponing the payment of a court fee at the time of bringing a claim. What the Court notes is that, in spite of the various formal procedural decisions adopted by the domestic courts over a two-year period, the national courts failed to provide a sufficiently clear and unambiguous interpretation of the procedural provision concerning exemptions from a court fee. In the above circumstances it would be unreasonable to request the applicant to appear before the domestic courts for the third time and request to apply a provision which had not been clearly interpreted within the previous two years.Having examined all the materials submitted to it, the Court dismisses the arguments brought by the Government and acknowledges that the approach used by the domestic courts has been such as to prevent the applicant from exercising her rights to access to a court.There has accordingly been a violation of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTIONThe applicant complained of a violation under Article 13 of the Convention, which provides:

“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 Government disagreed. The Court considers that this complains is closely linked to the one examined under Article 6 of the Convention and must therefore be declared admissible.Having regard to its decision under Article 6 of the Convention, the Court considers that it is not necessary to examine separately whether the complaint also entails a violation of Article 13 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTIONThe applicant also complained of a violation under Article 1 of Protocol No. 1 to the Convention, which provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”Having regard to its decision under Article 6 of the Convention, the Court considers that it is not necessary to examine separately the merits of this complaint.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTIONArticle 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 domestic 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.”The applicant left the Court to decide on just compensation for the moral and material damage she had sustained.The Court considers that the applicant has suffered some non-pecuniary damage. Having regard to the character of the violations found in the present case and deciding on an equitable basis, the Court awards EUR 1,000 under this head.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

 Holds that there has been a violation of Article 6 § 1 of the Convention;

 Holds that it is not necessary to examine separately the applicant's complaint under Article 13 of the Convention;

 Holds that it is not necessary to examine separately the applicant's complaint under Article 1 of Protocol No. 1 to 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 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Latvian lati (LVL) 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;

Done in English, and notified in writing on 26 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago QuesadaJosep Casadevall
RegistrarPresident

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