FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13828/02 by Albert GRUDZIŃSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 9 December 2008 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , Päivi Hirvelä , Ledi Bianku , Nebojša Vučinić , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 25 March 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Albert Grudziński, is a Polish national who was born in 1945 and lives in Warszawa. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

J.G., the applicant ' s legal predecessor, owned a brickyard located in Błonie. By virtue of a decision issued on 2 November 1950 the Minister of Light Industry ( Minister Przemysłu Lekkiego ) nationalised the brickyard pursuant to the Law of 3 January 1946 on Nationalisation of Principal Sectors of National Economy.

In 1991 J.G. made an application to the Minister of Industry and Commerce ( Minister Przemysłu i Handlu ) for annulment of the 1950 decision on nationalisation. On 23 February 1993 the Minister declared the 1950 decision null and void. The Błonie municipality appealed against that decision. On 1 December 1993 the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) dismissed its appeal.

On 30 December 1993 J.G. requested the Minister of Industry and Commerce to award her compensation for damage sustained as a result of the nationalisation decision. In May 1994 the Minister ordered J.G. to indicate the actual damage ( szkoda rzeczywista ) sustained in connection with the nationalisation. In April 1995 J.G. submitted that her compensation claim amounted to 3,378,233 Polish zlotys (PLN).

On 11 December 1996 the Minister awarded J.G. compensation in the amount of PLN 1,819,895.

J.G. contested the amount of the award. In January 1997 she sued the State Treasury before the Warsaw Regional Court ( Sąd Wojewódzki ), seeking further compensation in the amount of PLN 1,558,338. On 10 December 1998 the Regional Court dismissed her claim. J.G. appealed against that judgment to the Warsaw Court of Appeal ( Sąd Apelacyjny ).

Following J.G. ' s death, the applicant and her four other successors became parties to the proceedings before the Court of Appeal.

On 27 April 2001 the Court of Appeal upheld the judgment of the Regional Court .

In August 2001 the applicant and other co-plaintiffs lodged a cassation appeal against the judgment of the Court of Appeal. They also requested to be exempted from court fees required for proceeding with their cassation appeal. They claimed that due to their difficult financial situation they could not afford to pay them. The applicant stressed that his monthly salary amounted to 5,560 PLN. However, he had to support his unemployed wife and his mother-in-law.

On 27 September 2001 the Court of Appeal dismissed their application for exemption from court fees. Its decision was not reasoned and no appeal lay against it.

On 8 October 2001 the Court of Appeal ordered the applicant and other co-plaintiffs to pay court fees in the amount of PLN 79,516.90. On 27 November 2001 it rejected their cassation appeal for failure to pay the court fees. The applicant did not appeal against this decision although it would have been open to him to have done so under the Code of Civil Procedure.

B. Re levant domestic law and p ractice

The legal provisions relating to setting court fees as 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 Kreu z v. Poland (no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland , no. 73547/01), §§ 29-9).

Article 394 of the Code of Civil Procedure as applicable at the material time, guarantees a party to proceedings a right to appeal against a decision of the first-instance court which terminates the proceedings. Such an interlocutory appeal ( zażalenie ) is also available against certain decisions, specified in this provision. An appeal is available against a refusal of exemption from court fees when such dec ision has been given by a first ‑ instance court. The Supreme Court has held in a number of its decisions that no appeal is available against an interlocutory decision on court fees given by a second-instance court. Court fees for lodging such an interlocutory appeal should amount to one fifth of the court fee due in the proceedings.

Pursuant to Article 380 of the Code of Civil Procedure, on the request of a party, a second-instance court shall consider the interlocutory decisions of the first-instance court against which that party could not have filed an interlocutory appeal.

The Supreme Court has also held on many occasions that when examining an interlocutory appeal against a decision to reject a cassation appeal for failure to pay court fees, it would also consider the previous decision on refusal to give an exemption from the payment of court fees (see I CZ 259/99 unpublished, I CZ 81/2006, OSNC 2007 No. 2, item 36).

COMPLAINT

The applicant complained under Article 6 § 1of the Convention that the excessive court fees required from him for proceeding with his cassation appeal had been in breach of his right of access to a court for the determination of his civil rights.

THE LAW

A. The parties ' submissions

1. The Government

The Government raised a preliminary objection that the applicant had not exhausted domestic remedies available to him under Polish law, as required by Article 35 § 1 of the Convention. In particular he had failed to apply to the Ombudsman to lodge a cassation appeal on his behalf. Had he done so, he would have avoided having to pay court fees. In addition, the applicant had failed to lodge interlocutory appeals against the decisions of the Warsaw Court of Appeal of 27 September 2001 and 27 November 2001.

2. The applicant

The applicant replied that he could have had recourse only to remedies which were capable of providing an effective and sufficient means of redressing the alleged wrong. The lodging of a cassation appeal by the Ombudsman depended on the latter ' s discretion. Therefore, the applicant should not have been required to avail himself of a remedy which was a privilege rather than a right. The applicant further stressed that he had not filed an interlocutory appeal against the decision of 27 September 2001 since such an appeal was not provided for by law. As regards the decision of 27 November 2001, he had not appealed it, since the same Court of Appeal had previously dismissed his application for an exemption from court fees. Such an interlocutory appeal, in the applicant ' s opinion, would not have had any prospects of success.

B. The Court ' s assessment

The Court firstly reiterates that the obligation to exhaust domestic remedies requires only that an applicant make normal use of effective and sufficient remedies that are capable of remedying the situation at issue and affording redress for the breaches alleged (see, among other authorities, Selmouni v. France [GC], §§ 74-76, ECHR 1999-VII).

In the present case the Court observes that a request by the applicant to the Ombudsman for leave to appeal in cassation cannot be regarded as an effective remedy for the purposes of Article 35 § 1, since such a decision is of a discretionary character (see Hajnrich v . Poland (dec.) no. 44181/98 31 May 2001).

The Court further notes that the domestic law did not provide for an interlocutory appeal against the decision of 27 September 2001.

It has not been disputed between the parties that the applicant had the opportunity to lodge an interlocutory appeal against the decision of 27 November 2001 to reject his cassation appeal. The Supreme Court would have then had an opportunity to examine the reasonableness of the Court of Appeal ' s interlocutory decision of 27 September 2001 on exemption from court fees.

The applicant submitted that such an interlocutory appeal lacked any prospect of success as his application for an exemption from court fees had already been rejected by the Court of Appeal and for that reason he did not make use of the opportunities offered by Polish law.

The Court finds this assertion to be too speculative and is not persuaded by the applicant ' s arguments. The Court considers that the applicant has failed to adduce any particular circumstances that would indicate that the remedy in question would have had no reasonable prospect of success. In this respect it reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile does not dispense the applicant from having recourse to it (see, among many other authorities, Milosevic v. the Netherlands , no. 77631/01, ( dec .) of 19 March 2002; and Szott- Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003)

The Court observes that it is true that for lodging such an interlocutory appeal the applicant would have been required to pay a court fee. Nevertheless, the amount would have been smaller. Furthermore, he could have asked for an exemption from court fees due in the interlocutory proceedings.

Since the applicant did not make any attempt to use this remedy, the Court concludes that the Government ' s preliminary objection should be allowed.

It follows that the application is inadmissible for non-exhaustion of domestic remedie s within the meaning of Article 35 § 1 of the Convention and must be rejected pursua nt to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President