AS TO THE ADMISSIBILITY OF
Application No. 28249/95
by Henryk KREUZ
against Poland
The European Commission of Human Rights sitting in private on
20 April 1998, the following members being present:
MM S. TRECHSEL, President
M.P. PELLONPÄÄ
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 May 1995 by
Henryk KREUZ against Poland and registered on 18 August 1995 under file
No. 28249/95;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
14 August 1997 and the observations in reply submitted by the
applicant on 17 October 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1955, has dual Polish and Austrian
citizenship. He is a technician and resides permanently in Austria.
The facts of the case, as submitted by the parties, may be
summarised as follows:
A. Particular circumstances of the case
On 10 July 1991 the Plock Town Office granted the applicant a
provisional zoning approval concerning the construction of a car-wash.
On an unspecified date the applicant requested the Mayor of Plock
to confirm the zoning approval; in particular he requested confirmation
that the construction in question could be located in a specific area.
On 23 November 1992 the Mayor of Plock refused to grant the
applicant the requested zoning approval.
On 27 January 1993 the Plock Self-Government Board of Appeal
(Kolegium Odwolawcze przy Sejmiku Samorz*dowym), upon the applicant's
appeal, upheld the decision of 23 November 1992.
On an unspecified date the applicant lodged a complaint against
the decision of 27 January 1993 with the Supreme Administrative Court
(Naczelny S*d Administracyjny). He submitted, inter alia, that the
authorities had arbitrarily found that the development planned by him
did not conform with the class of land use set out in the relevant
master plan. He alleged serious errors of fact and law committed by
the administrative authorities both at first instance and on appeal.
On 27 January 1994 the Supreme Administrative Court quashed the
decisions of the organs of first and second instance and referred the
case back to the organ of first instance. The court found that the
conduct of the authorities in question had amounted to a serious
breach of the rule of law. The court held that they had arbitrarily
refused the applicant's request for zoning approval and that they had
clearly infringed the master plan requirements. In addition, the court
held that the authorities had made erroneous findings of fact in the
applicant's case.
On 9 May 1994 the applicant lodged a claim for compensation
against the Plock Municipality with the Plock Regional Court (S*d
Wojewódzki). He requested compensation of PLN 585,000 arising from the
fact that the municipal authorities had not issued any decision
concerning his request for zoning approval. He claimed, in particular,
that as a result of the inactivity of the relevant authorities and the
length of the zoning approval proceedings he had lost money which had
been intended for investment in his business venture, he had been
deprived of future profits and he had lost his prospective partners,
who had been about to participate in his investment. He also relied
on the judgment of the Supreme Administrative Court of 27 January 1994
in which it had been established that the authorities concerned had
been in breach of the rule of law.
On the same date the applicant requested the Plock Regional Court
to exempt him from the whole of the court fees. He submitted that he
was unemployed, had insufficient income and that he was not involved
in any profit-making activity since his efforts to establish such an
activity had been ruined by the municipal authorities' conduct. On
4 July 1994 the Plock Regional Court rejected the applicant's claim and
found that the claim was premature as the zoning approval proceedings
were still pending. The court expressed the opinion that a final
ruling on the zoning approval constituted a preliminary condition sine
qua non of access to a civil court in the applicant's case. As regards
the request for exemption from the court fees, the court decided not
to collect such fees as the claim had been rejected, i.e. there had
been no need to examine the case on its merits.
On 27 July 1994 the applicant lodged an interlocutory appeal
against the decision rejecting his claim. He submitted that he had
filed an action based on the general principles of the law of tort and
that in such a case no issue of preliminary conditions for access to
a civil court arose.
On 1 August 1994 the Plock Regional Court ordered the applicant
to pay a court fee of PLN 20,000 for lodging the interlocutory appeal.
On 9 August 1994 the applicant again requested the court to grant
him a general exemption from court fees. He submitted that he was not
able to pay the court fees due since he had put all his savings into
the preparation of his intended investment in Poland and that the
property he owned at the material time (i.e. a flat in Vienna, his car
and the share capital in his company) did not provide him with a
sufficient income to pay the amount of court fees required. He
submitted a financial declaration according to section 113 para. 1 of
the Code of Civil Procedure.
On 12 August 1994 the Plock Regional Court granted the applicant
an exemption from court fees only as regards the interlocutory appeal
proceedings.
On 27 September 1994 the Warsaw Court of Appeal (S*d Apelacyjny)
quashed the decision of the court of first instance of 4 July 1994.
The court held that since the applicant's claim for compensation had
been based on civil, not administrative law, no issue of preliminary
conditions of access to a civil court had arisen and, therefore, the
case should be examined on its merits.
On an unspecified date the case was referred back to the Plock
Regional Court.
On 17 November 1994 the Plock Regional Court again examined the
applicant's request for a general exemption from court fees. The court
found that the fees due for lodging the claim - PLN 585,000 - were
unusually high. Therefore, the court ordered that the applicant should
pay fees not exceeding PLN 10,000. The court stated, inter alia:
"... the plaintiff, who lives on his savings of an unspecified
value, should be able to pay fees amounting to PLN 10,000, since
he conducted a business activity and invested considerable
capital in his investments. When investing his money in a
business activity, the plaintiff had to take into account that
the fact of engaging in a business activity could in itself imply
the necessity of litigation before the courts. Therefore, he
should have secured [in advance] sufficient financial resources
for such purposes [e.g. court fees]."
On 30 November 1994 the applicant filed an appeal against the
above order to the Warsaw Court of Appeal. He argued, in particular,
that it had been unreasonable of the court of first instance to find
that a business activity could imply a necessity of litigation
concerning the negligence of the state authorities, since they should
normally be expected to act in accordance with the rule of law. He
also submitted that it had clearly transpired from his financial
declaration that he was unable to pay the court fees due. Moreover,
the applicant submitted that in case of any doubt as to his financial
situation, the court of first instance had been obliged to verify his
declaration under section 116 para. 1 of the Code of Civil Procedure.
Finally, he contended that his financial situation had remained
unchanged as from 12 August 1994, when the same court had granted him
the exemption from the court fees.
On 29 December 1994 the Warsaw Court of Appeal dismissed the
above appeal, finding that it was likely that the applicant had spare
financial resources at his disposal since he had planned the investment
in Poland. The court held that the applicant had been exempted from
most of the court fees due and that there were no reasons for any extra
exemption.
The applicant failed to pay the court fees required from him.
As a consequence, on an unspecified date, the Plock Regional Court
ordered that the applicant's original statement of claim be returned
to him.
B. Relevant domestic law and practice
Under Polish law everyone, except public organs and institutions,
is obliged to pay a court fee at the time of lodging a statement of
claim with the competent court. As the case proceeds, a party is
obliged to pay additional court fees at the time of lodging any further
appeal or constitutional complaint. The court fees incurred are,
depending upon the outcome of the case, finally borne either by the
defendant (who is ordered to pay all the costs of litigation in a final
judgment) or by the unsuccessful plaintiff.
In principle, court fees are based on a percentage (in the case
of the fee due for lodging a claim or an appeal) or a fraction (in the
case of the fee due for lodging an interlocutory appeal) of the value
of the claim in question.
The Law of 13 June 1967 on Court Fees and Other Charges in Civil
Cases (as amended) sets out general principles with respect to the
collection of fees by courts.
Section 5 para. 1 of the Law provides:
"1. A court shall collect court fees from the person who has
lodged any pleadings which are subject to such fees."
According to Section 8 of the Law, the State Treasury,
Municipalities and other public organs or institutions are not obliged
to pay court fees, provided that the claim in question does not relate
to their commercial activity.
Section 16 of the Law, insofar as relevant, provides:
"1. The court shall not take any action if the court fee due
for lodging a given pleading is not paid. In such a case the
president of the court shall order the party concerned to pay the
fee due within a period not exceeding seven days, on pain of
having the pleading returned. If the party does not comply with
the time-limit, the pleading shall be returned to this party. ...
3. Any appeal, cassation appeal, interlocutory appeal or
objection to a judgment by default ... shall be rejected if the
due court fee was not paid within the [above] time-limit."
Section 18 of the Law provides:
"A pleading which has been returned to a party as a result of
the fact that the court fee had not been paid, shall not be
of any legal effect."
Paragraph 1 of the Ordinance of the Minister of Justice of 17 May
1993 on Court Fees in Civil Cases (as amended) provides, insofar as
relevant:
"(4) Where the value of the claim exceeds PLN 100,000 the court
fee shall amount to PLN 6,600 for the first PLN 100,000 and 5%
of the remaining value of the claim. In any case the court fee
due shall not exceed the sum of PLN 100,000."
Exemption from court fees is a matter for the discretion of the
court competent to deal with the case.
Section 113 para. 1 of the Code of Civil Procedure provides:
"1. An individual may request the court competent to deal with
the case to grant him exemption from court fees provided that he
submits a declaration to the effect that the fees required entail
a substantial reduction in his and his family's standard of
living. Such a declaration shall contain details concerning his
family, assets and income. It falls within the court's
discretion to assess whether the declaration justifies granting
the exemption requested."
Section 116 para. 1 of the Code of Civil Procedure provides:
"1. In case of doubt ... as to the real financial situation
of the party requesting exemption from court fees, the
court may order the verification of his declaration."
Section 120 para. 1 of the Code (in the version applicable at the
material time), insofar as relevant, provided :
"1. The court shall revoke an exemption from court fees or
legal assistance granted if the basis therefor did not exist or
has ceased to exist. In either instance the party concerned
shall pay all court and/or legal fees due in his case ... ."
Under Polish law fees collected by courts do not constitute, nor
are they equivalent to security for costs which may, upon a defendant's
motion, be ordered in separate proceedings. They are transferred by
courts to the State Treasury and are deemed to be part of its income.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
that he was deprived of access to a court for the determination of his
civil rights as the amount of court fees required from him by the
Polish courts prevented him from pursuing a civil action against public
authorities.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 May 1995 and registered on
18 August 1995.
On 9 April 1997 the Commission decided to communicate the
applicant's complaint under Article 6 para. 1 of the Convention about
the lack of access to a court to the respondent Government and to
declare the remainder of the application inadmissible.
The Government's written observations were submitted on 14 August
1997, after the second extension of the time-limit fixed for that
purpose. The applicant replied on 17 October 1997.
On 28 October 1997 the Commission granted the applicant legal
aid.
On 15 February 1998 the Government submitted a translation of
their observations.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he was deprived of access to a court for the
determination of his civil rights as the amount of court fees required
from him by the Polish courts prevented him from pursuing a civil
action against public authorities.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a ... hearing ... by [a] ...
tribunal established by law. ..."
The Government maintain that, according to Polish law relating
to exemption from court fees, it was for the applicant to prove that
he was unable to pay the fees required from him. However, he merely
submitted a general declaration, stating that he lived on savings of
an unspecified value. Thus, the courts found that it was unjustified
to grant him exemption from the whole of the court fees. Moreover,
they finally exempted the applicant from two-thirds of the fee due for
lodging his claim. At the material time the sum in question was equal
to approximately twelve months' average salary in Poland. It cannot,
therefore, be said that the fees eventually required from the applicant
would have been detrimental to his financial situation.
Furthermore, the Government point out that if the courts had
granted the applicant's request, the burden of the fees would have
fallen on the State Treasury. Such a situation would have infringed
the principle of equality before the law, because other parties to
civil proceedings bear costs of litigation even though their financial
situation is more difficult than the applicant's.
The applicant replies that an individual's right of access to a
court takes precedence over the State Treasury's interest in deriving
profit from court fees. Therefore, the principle of equality before
the law invoked by the Government requires the State to exempt an
individual from court fees when their amount may bar him from
submitting his claim to the courts for adjudication. In any event,
according to Polish law, the courts may at any time revoke the
exemption granted if this is justified in view of a subsequent
improvement in the financial situation of the person concerned.
The applicant admits that it falls within the courts' discretion
to decide whether or not exemption from court fees is justified in a
given case. However, he submitted the declaration required by Section
113 para. 1 of the Code of Civil Procedure containing the details of
his financial situation and the Plock Regional Court did not hesitate
to exempt him from the fees of PLN 20,000 due for lodging an
interlocutory appeal as transpires from that's court decision of
12 August 1994. It neither questioned the veracity of his declaration
at this or any further stage of the proceedings in his case, nor did
it order the verification of his statements under Section 116 para. 1
of the Code of Civil Procedure. The question therefore arises why his
true statements were disregarded.
Finally, the applicant stresses that, as the Government have
pointed out, the sum of PLN 10,000 eventually required from him
exceeded an average annual income in Poland. It was unusually high and
disproportionate to a normal standard of living and thus in itself
amounted to a bar to access to a court.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and of fact
under the Convention, the determination of which should depend on an
examination of the merits of the application. The Commission
concludes, therefore, that the application is not manifestly ill-
founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for declaring it inadmissible have been
established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy