FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39199/98 by Janusz PODBIELSKI and PPU “POLPURE” against Poland

The European Court of Human Rights (Fourth Section), sitting on 19 June 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 15 December 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 Janusz Podbielski, is a Polish national, who was born in 1949 and lives in Witoszów Dolny , Poland. At the material time he was the owner and the president of the management board of a limited liability company “ Polpure ”. The case was brought by him on behalf of the company. He is represented before the Court by Mr W. Hermeliński , a lawyer practising in Warsaw, Poland. The respondent Government are represented by their Agent, Mr K. Drzewicki, 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.

1. Background

The proceedings described below have already been examined by the Court from the point of view of the “reasonable time” requirement. In its judgment of 30 October 1998 the Court unanimously held that the Polish authorities had been in breach of Article 6 § 1 ( Reports 1998-VIII, pp. 3387-3400).

2. Undisputed facts

(a) Claims for payment and damages

( i ) Facts before 1 May 1993

On 25 May 1992 the applicant, acting on behalf of his company “ Polpure ” (“company”) sued the Świdnica Municipality ( Miasto Gmina ) in the Wałbrzych Regional Court ( Sąd Wojewódzki ), seeking payment for construction works which it had carried out for the defendant. He also sought damages for the defendant’s delay in payment and penalties resulting from the breach of contract.

On 27 May 1992 the company was exempted from court fees due for lodging the claim.

On 7 September 1992 the Wałbrzych Regional Court gave judgment. It declared certain clauses of the contract null and void, as being in breach of a number of substantive civil law provisions.

Following the applicant’s appeal, the judgment was later quashed and the case remitted.

On 1 February 1993 the Wałbrzych Regional Court allowed the applicant’s claim for payment but declared null and void a clause of the contract that imposed penalties for the breach of contract. The parties’ further appeals were dismissed by the Wrocław Court of Appeal ( Sąd Apelacyjny ) on 27 April 1993.

(ii) Facts after 1 May 1993

On 25 June 1993 the Ombudsman filed with the Supreme Court ( Sąd Najwyższy ) an extraordinary appeal on behalf of the company, submitting that the Court of Appeal’s judgment had been in flagrant violation of substantive civil law and had unduly restricted the parties’ freedom of contract. That appeal was rejected on 7 October 1993.

On 28 January 1994 the Supreme Court, on an application made by the applicant, reopened the extraordinary appeal proceedings. It amended its judgment of 7 October 1993, set aside the judgments of 1 February and 27 April 1993 and remitted the case to the court of first instance. It ordered that the claims, save for the already-awarded claim for payment, be reconsidered. The Supreme Court held that the previous judgments were in breach of substantive civil law. It gave guidelines as to how to proceed with the claims.

On 5 May 1994 the applicant modified the claims and asked for a total award of 18,321,586,800 old Polish zlotys (PLZ). He also made an application to the Regional Court, asking for an exemption from all court fees involved in the litigation to be granted to the company.

On 6 June 1994 the court partly granted the application and exempted the company only from a court fee due for lodging the modified claim (which would normally have amounted to PLZ 932,080,000), except for the first PLZ 66,000,000.

The court observed that while it was true that the applicant’s company had encountered significant difficulties in recovering payments from third parties, had lost its credit solvency and was charged with debts, it had not yet been declared insolvent and was, accordingly, able to continue its commercial activity. In view of that, the court considered that exempting it from all future court fees would not be justified.

On 20 July 1994, on an appeal filed by the applicant, the Wrocław Court of Appeal quashed that decision and held that the exemption from the court fee due for lodging the claim, granted on 27 May 1992, was still in force and applied to the modified claim.

In a judgment of 20 February 1995 the Wałbrzych Regional Court ordered the defendant to pay pecuniary penalties to the applicant, but reduced their amount to PLZ 1,844,300,000 because it considered that the penalties originally fixed in the contract were excessive. It dismissed the claim for damages arising from the defendant’s delay in payment.

On 30 March 1995 the applicant appealed against the judgment of 20 February 1995, arguing that the court had not made certain findings of fact which were relevant to the outcome of the case and that it had committed a number of procedural errors. He also asked for an exemption from court fees due for lodging an appeal on behalf of the company. That fee amounted to 84,593.54 new Polish zlotys (PLN). The Regional Court partly exempted the company, ordering that it should pay PLN 40,000.

On 25 May 1995 the Wrocław Court of Appeal, on the applicant’s appeal lodged on behalf of the company, quashed that decision and exempted the company from the entire fee due for lodging the appeal. The court, finding that all the company’s assets had been attached in enforcement proceedings against it, that its bank accounts had been frozen and that its debts exceeded PLN 1,605,184, held that it was impossible for it to pay the fee in question.

On 31 August 1995 the Wrocław Court of Appeal set aside the judgment of 20 February 1995 in so far as it had rejected the applicant’s claim for damages for the defendant’s delay in payment. It ordered that that claim be reconsidered since the trial court had failed to comply with the Supreme Court’s legal opinion and guidelines on that matter. It also criticised the manner in which the trial court had taken expert evidence.

On 23 October 1996 the Wałbrzych Regional Court dismissed the claim for damages.

(b) Applications for an exemption from court fees for proceeding with the appeal of 29 November 1996

On 29 November 1996 the applicant filed, through the Wałbrzych Regional Court, an appeal to the Wrocław Court of Appeal. He submitted, among other things, that the Regional Court had for the second time failed to comply with the guidelines given by the Supreme Court and the Court of Appeal in respect of the claim for damages for the defendant municipality’s delay in payment and that it had disregarded the instructions given by the Court of Appeal in the judgment of 31 August 1995. The value of the claim asserted in the appeal proceedings was PLN 3,511,334.03. The applicant asked for an exemption from court fees due for lodging an appeal. The relevant part of his application read:

“The plaintiff’s application for an exemption from court fees is based on the fact – a fact already ascertained by the court – that its financial situation has not improved but has become more difficult. The entire sum awarded by the previous judgment was, without any basis whatsoever, attached by the Bailiff of the Świdnica District Court. The defendant municipality, for its part, unjustifiably deducted its debts... from the sums awarded. The adjudicated claim was not therefore satisfied and the Bailiff in addition deducted from that sum PLN 73,014.28 by way of [costs of enforcement proceedings]. In consequence, the plaintiff sustained further loss. Moreover, the plaintiff’s debts have been climbing rapidly due to interest on arrears.”

On 3 January 1997 the Wałbrzych Regional Court exempted the applicant’s company from all court fees save for the first PLN 20,000 and dismissed the remainder of the application. The relevant part of that decision read:

“... the applicant has declared that it is still conducting its business activity, although it has limited it considerably. It emerges from entries made in the company’s cash book from January to October 1996 that since June 1996 cash holdings and disbursements exceeded PLN 20,000 and, in October, they reached PLN 44,000.

In the circumstances, exempting the applicant from the entire fee would be unjustified and that court exempts it only from fees exceeding PLN 20,000.”

The applicant appealed against that decision on 15 January 1997. The appeal read, in so far as relevant:

“... the Regional Court made erroneous findings in respect of the plaintiff’s financial situation:

1. As the plaintiff already stated, its situation, [assessed as bad by the Court of Appeal already on 25 May 1995] had not improved but had become worse. [the applicant further repeated the arguments adduced in the above-cited application];

2. The plaintiff has already produced abundant documentary evidence [including the 1995 balance sheet, cash books, the relevant bank report and documents setting out financial analyses of the company’s standing] confirming the previously-described financial situation, a situation with which the Regional Court has become well acquainted throughout that lengthy trial. That situation is as follows: in the year 1995 the company sustained losses; in the year 1996 it sustained losses in each month; the income did not cover debts (the outstanding debt is PLN 4,945,74); all assets were attached (see the enclosed list of court files); the bank account is practically empty (see the bank’s report); ... the outstanding debt of PLN 4,945.74 was eventually covered by the partner in order to avoid the institution of winding-up proceedings. ...;

3. There is no dispute that the defendant ruined the plaintiff company ... which now is able to carry out only casual construction works;

4. The opinion of the Court of Appeal expressed in its decision of 25 May 1995 [as to the bad financial situation of the applicant’s company] is therefore still valid

...”

On 13 February 1997 the Wrocław Court of Appeal dismissed the appeal, considering that the applicant’s company had sufficient means to pay the court fees. The court stressed that, pursuant to Article 113 § 2 of the Code of Civil Procedure, grounds for exempting a legal person from court fees were stricter; the court “could” but did not “have to” exempt it from such fees even if it proved that it did not have means to pay them. Furthermore, the Court of Appeal observed that since the applicant’s company still continued its business activity and derived a systematic income from it (which, recently, had been in excess of the PLN 20,000 needed for the required court fees), the Regional Court had correctly concluded that the applicant could pay that sum. A prospective litigant, the court added, should take into account the need to secure the court fees for the litigation and put aside part of his or its income for that purpose.

On 9 March 1997 the applicant made another application for an exemption from court fees, arguing that in the course of the prolonged litigation his company’s financial situation had deteriorated very significantly. He stressed that three days earlier the Bailiff had frozen the last two of the company’s bank accounts and attached PLN 2,214.15 and PLN 1,294.83 respectively (those sums had been the applicant’s salaries). Furthermore, the Świdnica Tax Office ( Urząd Skarbowy ) had ordered the company to pay immediately PLN 28,656.90 in tax arrears, together with default interest. In the circumstances, the company did not have any means whatsoever to pay the court fees. The applicant produced the relevant documentary evidence in support of his application. Those documents showed that the company had incurred a loss of PLN 23,711.04 in the year 1996, a loss of PLN 425,49 in January 1997 and a loss of PLN 4,954.79 in February 1997.

On 3 April 1997 the applicant’s lawyer filed a pleading with the Regional Court and asked it to hear evidence from the applicant in order to establish the current financial standing of his company.

On 14 April 1997 the court exempted the company from court fees exceeding PLN 10,000. It observed that in December 1996 the applicant’s company had an income of PLN 20,000 and that it could therefore pay the court fees previously imposed on it. In the court’s opinion, the documents produced by the applicant showed that since December 1996 to March 1997 the company’s management could have put aside money for securing court fees. However, having regard to the new facts supplied by the applicant on 9 March 1997, the court considered that the original fee should be reduced.

The applicant appealed on 8 May 1997. He stated, among other things, that he had been a “well-known bankrupt” and that he had no means whatsoever to pay court fees and, by reason of the fact that the company had lost its credit solvency, he could not even obtain a loan for the purpose of securing court fees. Yet as he had obtained a modest financial support, i.e. PLN 500 from a third person, he was prepared to pay that sum to the court. He further criticised the court for having considered only cash reports, which had not reflected the real state of the company’s business, and for having ignored the fact that under the applicable laws his company had a legal duty to disburse all cash in hand for tax arrears. He also stressed that the court had completely overlooked the losses the company had incurred.

On 9 June 1997 the Wrocław Court of Appeal dismissed the appeal. It considered that despite the losses sustained, the company could have put aside money for the court fees in question. In the court’s view, the company’s cash holdings should, in the first place, have been used for the court fees. The court also observed that the company should have regarded payment of those fees as its priority. Lastly, the court noted that the proceedings relating to the exemption from court fees had lasted for such a long time that the plaintiff could have secured money for the fees.

On 16 July 1997 the applicant made yet another application for an exemption from the court fees for lodging the appeal, save for the first PLN 500. He asked the Regional Court to obtain expert evidence and to hear evidence from himself as the president of the management board in order to establish the financial standing of his company. He submitted documents showing that he had in the meantime applied to two banks for loans to secure the court fees but that his applications had been rejected because of the very bad financial situation of the company. On 12 August 1997 the applicant filed a pleading and produced further documentary evidence. It emerged from the relevant documents that from 1 January to 30 June 1997 the applicant’s company had incurred a loss of PLN 3.090,71.

On 17 July 1997 the applicant paid PLN 500 to the court.

On 1 September 1997 the Wałbrzych Regional Court refused to grant the plaintiff any further exemption from court fees. The court reiterated the grounds already cited in its previous decisions. It rejected the application for evidence to be obtained from the applicant and his expert.

The applicant appealed against that decision, but on 16 October 1997 the Wrocław Court of Appeal rejected his appeal.

On 15 December 1997 the applicant asked the Regional Court to allow him to pay the fee in instalments but his application was refused.

On 17 December 1997, the Wałbrzych Regional Court refused to proceed with the appeal against the judgment of 23 October 1996 and rejected it for non-compliance with the court’s decision ordering the company to pay the court fees for lodging the appeal.

From 29 January to 30 March 1998 both the Regional Court and the Court of Appeal considered the applicant’s subsequent, repeated and eventually unsuccessful applications for an exemption from court fees.

On 29 May 1998 the Wrocław Court of Appeal dismissed the applicant’s appeal against the decision rejecting his appeal of 29 November 1996 on formal grounds.

The applicant lodged with the Supreme Court a cassation appeal against that decision on 30 June 1998. The cassation appeal was rejected on 10 June 1999.

3. Facts in dispute

(a) Facts as related by the Government

The company was ordered to pay a court fee of PLN 10,000 for proceeding with the cassation appeal. That sum was paid on 16 November 1998.

(b) Facts as related by the applicant

The company never paid a court fee to proceed with the cassation appeal since the applicant could not afford it.

B. Relevant domestic law and practice

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 appl . no. 28249/95, §§ 23-33, ECHR 2001-....

The grounds for exempting legal persons, companies and business enterprises from court fees were, however, formulated in a different way from the grounds applying to natural persons. Paragraph 2 of Article 113 of the Code of Civil Procedure in the version applicable at the relevant time read:

“A legal person, or an entity not possessing legal personality, which has demonstrated that it does not have sufficient financial means for court fees, may be granted an exemption from those fees.”

COMPLAINT

The applicant complained under Article 6 § of the Convention that the excessive court fees required for proceeding with the appeal of 29 November 1996 constituted a disproportionate restriction on his access to a court since they had prevented him from pursuing his civil claim.

THE LAW

The applicant complained that the excessive court fee required for proceeding with his appeal had amounted to a disproportionate restriction on his access to a court. He alleged a breach of Article 6 § 1 of the Convention, which states, in so far as relevant:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ...  by [a] ... tribunal established by law. ...”

The Government maintained, first, that under Polish law there was a general obligation on the parties to civil proceedings to pay court fees for lodging any claim, any appeal or an objection to a judgment by default. The courts would not take any action if the required fee had not been paid.

They further explained that while it was possible for a party to seek an exemption from court fees, such an exemption was granted only in exceptional cases since it entailed a reduction in the State’s income derived from court fees.

Referring to the circumstances of the present case, the Government stressed that the applicant had been partly exempted from the fee for lodging the appeal of 29 November 1996 and that the sum eventually levied had been lower than the company’s cash holdings and disbursements at the material time.

As regards the grounds for the court decisions, the Government considered that the courts had taken into account all relevant factors, such as the company’s financial standing, its assets and cash reserves and had made a thorough and careful assessment of evidence before them.

It was true, they added, that the Regional Court had refused to hear evidence from the applicant but such matters as the admission of evidence were normally left for the domestic courts’ discretion. Moreover, that refusal had not had any bearing on the general fairness of the procedure in which his repeated applications for an exemption from court fees had been examined.

The Government admitted that the applicant had also offered to pay PLN 500 which, according to him, had been the only amount obtainable and, alternatively, had asked for the fee to be payable in instalments. Yet the courts could not accept the sum proposed by him since it would have infringed the principle of equality before the law in respect of other litigants who, despite their difficult financial situation, had to pay court fees as ordered by the courts, not as determined by themselves.

In the Government’s submission, the subsequent events had proved that the courts had been right in finding that the applicant could gather enough cash to pay the fee of PLN 10,000 because, on 16 November 1998, his company had paid exactly the same amount for proceeding with its cassation appeal to the Supreme Court. That had fully confirmed the courts’ opinion that the applicant could have put aside some part of his income and secure the court fee for the appeal of 29 November 1996.

The Government accordingly concluded that it could not be said that the fee in question had been disproportionate to the applicant’s means or fixed arbitrarily. They invited the Court to reject the application as being manifestly ill-founded.

The applicant disagreed. In his submission, the courts had acted arbitrarily and based their decisions on a speculative and incomplete assessment of his company’s financial situation. They had refused to accept evidence showing that the company could not afford the court fee in question. Their findings had been based on his hypothetical earning capacity rather than on the facts he had supplied.

The applicant further maintained that the undisputed facts that he had adduced in his applications for an exemption from the court fee and in his appeals had clearly shown that the company’s financial condition had been very poor at the relevant time. Not only had it incurred losses in the years 1996 and 1997 but, in addition, the Tax Office had ordered it to pay PLN 28,656.90 in tax arrears and its bank accounts had been frozen. That, in his view, had proven that the court fee of PLN 10,000 had exceeded the company’s means.

Referring to the Government’s argument that his company could have borne the fee in question because, in November 1998, it had paid exactly the same fee of PLN 10,000 for proceeding with its cassation appeal, the applicant stated that his company had never paid such a fee.

In sum, the applicant considered that the refusal to exempt him from the fee for the appeal lodged by his company had been in breach of Article 6 § 1 of the Convention and that it had impaired the essence of his right of access to a court as he had had to desist from vindicating a substantial claim for damages.

The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza Registrar President