Lexploria

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

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KREUZ v. POLAND

KREUZ v. POLAND

LEXI