FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 73547/01 by Grzegorz JEDAMSKI and Teresa JEDAMSKA against Poland

The European Court of Human Rights (Fourth Section), sitting on 17 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 14 August 2001,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Grzegorz Jedamski and Mrs Teresa Jedamska , are a married couple. They are Polish nationals, who were born in 1954 and 1960, respectively. They live in Mikołajki Pomorskie , Poland.

A. The circumstances of the case

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

1. Background

The proceedings summarised below have already been examined by the Court under Article 6 § 1 of the Convention from the angle of the “reasonable time” requirement. In its judgment of 26 July 2001 ( Jedamski v Poland no 29691/96 ) the Court (former Fourth Section) unanimously held that there had been a violation of Article 6 § 1.

On 22 December 1992 the Łódź Bank of Development ( Łódzki Bank Rozwoju ), submitting a bill of exchange payable to bearer which required the first applicant to pay on demand 19,777,167,300 old Polish zlotys (PLZ), asked the Łódź District Court ( Sąd Rejonowy ) to issue an order for payment against him.

On 14 January 1993 the court granted the plaintiff’s claim and ruled that the applicant was to pay the sum in question within seven days from the date of service of the order or, alternatively, within the same time-limit, to lodge an appeal against the said order. The first applicant appealed.

On 11 February 1993, acting under a provisional writ of execution of 1 February 1993 and on a request by the creditor, i.e. the Łódź Bank of Development, the Bailiff of the Warsaw District Court ( Komornik Sądu Rejonowego ) made an order attaching the applicants’ shares in the Bank of Development of Export ( Bank Rozwoju Eksportu ) and cash (an unknown sum) deposited in the Central Brokerage Bureau of the Bank PeKaO S.A. ( Centralne Biuro Maklerskie Banku Polska Kasa Opieki S.A. ), by way of security for the creditor’s claim for payment of PLZ 19,777,167,300 pending in the Łódź Regional Court.

On 26 February 1993 the first applicant lodged an unsuccessful complaint against the actions taken by the bailiff ( skarga na czynności komornika ), relying on Article 767 of the Code of Civil Procedure and arguing that the attached shares constituted matrimonial property of the applicants, whereas the execution was against the applicant alone.

On 12 October 1993 the Łódź Bank of Development was taken over by the BIG Bank SA ( Bank Inicjatyw Gospodarczych SA). The BIG Bank SA replaced the former bank as a plaintiff in the civil proceedings and as a creditor in the enforcement proceedings.

On 23 February 1999 the Łódź Regional Court quashed the order for payment and awarded the plaintiff bank 1,954,097.49 new Polish zlotys (PLN) together with interests and costs of the proceedings. The plaintiff bank appealed against that judgment .

On 9 April 1999 the Łódź Regional Court secured the plaintiff’s already-awarded claim by attaching the applicants’ shares in the Bank of Development of Export ( Bank Rozwoju Eksportu ) , the amount of PLN 984,674,50 in cash deposited in the Central Brokerage Bureau of the Bank PeKaO S.A. ( Centralne Biuro Maklerskie Banku Polska Kasa Opieki S.A. ) and shares in the former Łódź Bank of Development ( Łódzki Bank Rozwoju ) (taken over by the BIG Bank SA) deposited in the Łódź District Court by the Bailiff of the Łódź District Court ( Komornik Sądu Rejonowego ).

On 19 October 1999, on the plaintiff’s appeal, the Łódź Court of Appeal ( Sąd Apelacyjny ) upheld the first-instance decision.

On 16 November 2000 the Bailiff of the Warsaw District Court discontinued the enforcement proceedings instituted under the writ of execution of 1 February 1993.

2. Claim for damages

(a) Undisputed facts

On 28 December 2000 the applicants sued the Warsaw BIG Bank SA in the Warsaw Regional Court ( Sąd Okręgowy ). They sought damages of PLN 340,000,000, claiming that the attachment of their property, in particular the shares, made at the BIG Bank SA request on the basis of the quashed order for payment of 14 January 1993, deprived them of any future profit-making trade in shares at the Warsaw Stock Exchange.

On 23 January 2001 the applicants informed the court that, on 5 January 2001, as a result of the banks’ merger, the BIG Bank SA ( Bank Inicjatyw Gospodarczych SA ) had been taken over by the BIG Bank Gdański SA. From that date onwards, the BIG Bank Gdański SA replaced the former bank as a defendant in the proceedings. On an unknown date the court ordered the applicants to pay a court fee of PLN 100,000 for lodging the claim.

On 23 January 2001 the applicants asked the Warsaw Regional Court to exempt them from payment of that fee. They also submitted a declaration of means, pursuant to Article 113 § 1 of the Code of Civil Procedure. Their application read, in so far as relevant:

“...The plaintiffs ask for an exemption from the court fee on the ground that they cannot pay that sum as it will entail a substantial reduction in their standard of living.

The plaintiffs’ matrimonial property was seized by the Bailiff acting upon the decision of the Łódź Regional Court of 9 April 1999.

[in connection with that argument, the applicants produced a copy of that decision]

Their income from a farm, which is the second applicant’s personal property, does not suffice for the payment of PLN 3.957.50 the plaintiffs owe in tax arrears.

[in connection with this argument, the applicants produced a copy of a certificate issued by the Mikołajki Pomorskie Commune Office ( Urząd Gminy ) stating the anticipated income and tax arrears]

The plaintiffs declare that they do not derive the anticipated income indicated in the presented certificate due to a shortage of funds for making investment outlays in the production.

The plaintiffs further state that, given that their other assets were attached, their only present income is that from the farm. In the circumstances, the plaintiffs are unable to pay the court fees.

Finally, we would like to inform [the court] that in other civil proceedings, the Łódź Regional Court, in its decision of 9 June 1999, exempted the first applicant from paying the full amount of fees.

[in connection with that argument, the plaintiffs produced a copy of that decision]”

The declaration of means made by the first applicant read, in so far as relevant:

“The plaintiff asks for an exemption from court fees on the ground that he cannot pay the fee in question [as it will] entail a substantial reduction in his standard of living.

He has the following items of property:

1) no personal property; the average anticipated annual income from the agricultural farm is estimated at PLN 66,140.43;

2) 62.500 shares in the BRE Bank SA, 9.950 shares in the BIG Bank SA and PLN 984,674,50 in cash (matrimonial property attached by the Bailiff);

3) 11 shares in the BIG BG SA;

4) audio and television equipment; furniture.”

The declaration of means made by the second applicant read, in so far as relevant:

“The plaintiff asks for an exemption from court fees on the ground that she cannot pay the fee in question [as it will] entail a substantial reduction in her standard of living.

She has the following items of property:

1) agricultural farm, the average anticipated annual income from which is estimated at PLN 66,140.43;

2) car;

3) 62.500 shares in the BRE Bank SA, 9.950 shares in the BIG Bank SA and PLN 984,674,50 in cash (matrimonial property attached by the Bailiff);

4) 11 shares in the BIG BG SA;

5) audio and television equipment; furniture.”

On 30 January 2001 the court rejected the applicants’ application. The reasons for that decision read, in so far as relevant:

“... As it emerges from the plaintiffs’ declarations of means, the second applicant is a sole owner of the farm of 57.44 ha ... The annual anticipated income from the farm amounts to PLN 66,140.43 and constitutes the only source of the plaintiffs’ income. Moreover, the plaintiffs are the owners of PLN 984,674,50 in cash, 62.500 shares in the BRE Bank SA and 9.950 shares in the BIG Bank SA. It is true that their cash and shares have been attached by the decision of the Łódź Regional Court, but the plaintiffs’ real financial situation does not seem to be as bad as they present it. Taking into consideration their assets and income derived from the farm, the plaintiffs are able to pay the full amount of the court fees without any reduction in their family’s standard of living. When deciding to bring the present claim, the plaintiffs should have taken into account the fact that it would involve the necessity of paying court fees. They should therefore have secured financial means in anticipation of the litigation...”

On 13 February 2001 the applicants lodged an interlocutory appeal ( zażalenie ) against that decision. They alleged a breach of Article 113 § 1 of the Code of Civil Procedure and Article 6 § 1 of the Convention. The applicants maintained that it had clearly emerged from the documents produced by them, in particular the Łódź Regional Court’s decision to secure the plaintiff’s claim for payment by attaching the applicants’ shares and the declaration setting out the average anticipated annual income from the farm, that they were unable to pay the court fee of PLN 100,000 imposed on them.

On 9 March 2001 the Warsaw Court of Appeal ( SÄ…d Apelacyjny ) dismissed the appeal. The relevant part of that decision read:

“...The plaintiffs’ assets are of a considerable value and they several times exceed the average level of means. This conclusion cannot be changed by the fact that part of their property is attached in other civil proceedings. The plaintiffs still remain the owners of their property and, consequently,  should be able to take necessary measures to gather sufficient means to pay the court fees. The plaintiffs are involved in a number of proceedings concerning pecuniary and non-pecuniary rights to their shares in commercial companies and, in the past, they made a large number of transactions at the stock exchange market. These facts indicate that the plaintiffs ... cannot be regarded as indigent and that the court fees for lodging their claim should not be borne by the State.

Their declaration of means is doubtful because it is not complete. The plaintiffs did not indicate precisely title to their apartment. They did not reveal the real income derived form the farm. Nor did they produce any information concerning the type of activities in which they are engaged on their farm. Moreover, [the first applicant] failed to indicate his place of employment; his being his wife’s dependant seems doubtful. ... Lastly, the plaintiffs did not supply any information concerning their house or the farm equipment. That information would have enabled the court to ascertain the real standard of their living.

Assessing all the circumstances, the following conclusion can be drawn: the plaintiffs, who have failed to show their current financial situation and to reveal their income, cannot successfully challenge the first-instance decision which rejected their application for an exemption from court fees. They cannot therefore complain that they are deprived of access to a court.

In addition, it should be pointed out that the amount of the court fee is based on the value of the claim in question and that [that value] depended on the plaintiffs. ...”

On 30 April 2001 the Warsaw Regional Court ordered the applicants to pay PLN 100,000 for lodging their claim. The applicants did not pay that sum. As a consequence, on an unknown date, the Warsaw Regional Court ordered that the applicants’ statement of claim be returned to them ( zarządził zwrot pozwu ), which meant that their claim was of no legal effect and that the relevant proceedings were, for all legal and practical purposes, regarded as having never been brought before the court.

(b) Facts in dispute

( i ) Facts as related by the Government

On 30 December 1999 the order attaching the applicants’ shares and cash was quashed and, accordingly, there were no legal grounds for any further seizure of this part of their property.

(ii) Facts as related by the applicants

The applicants submitted that the original attachment order (i.e. that of 11 February 1993) had indeed lost its force because, on 16 November 2000, the Bailiff of the Warsaw District Court had discontinued the enforcement proceedings instituted under the writ of execution of 1 February 1993. Nevertheless, the attachment order of 9 April 1999 was still in force at the material time.

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, ECHR 2001-... .

COMPLAINT

The applicants complained under Article 6 § 1 of the Convention that they had been deprived of access to a court for the determination of their civil rights as the amount of court fees required from them by the Polish courts had prevented them from pursuing their claim.

THE LAW

The applicants complained under Article 6 § 1 of the Convention that they had been deprived of access to a court because they had had to desist from pursuing their claim for damages on account of the excessively high court fees for lodging that claim.

Article 6 § 1 of the Convention, which, in its relevant part, states:

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

The Government submitted that the court fee in question had been levied on the applicants in accordance with the law and had pursued a legitimate aim. They added that it had not been disproportionate to their means or imposed arbitrary. However, the Government admitted that the amount of the court fee, if considered from the perspective of the “ordinary litigant”, had been substantial.

The Government pointed out that the applicants’ monthly income had substantially exceeded the average salary in Poland. They referred to the applicants’ financial transactions on the stock exchange market.

Furthermore, the Government maintained that it had been incumbent on the applicants to prove that they had been unable to pay the court fees imposed on them. However, they had not submitted any convincing evidence in support of their request for the exemption from court fees .

Moreover, the Government submitted that at the material time the applicants had been involved in other civil proceedings and, consequently, should have been aware of the amount of fees required for lodging such a claim. Lastly, in their opinion, the applicants had assumed that they would be unconditionally exempted from the court fees.

The applicants disagreed with the Government and argued to the contrary. In their submission, the Polish courts had acted arbitrarily and had based their decisions on a speculative assessment of their financial situation. They also considered that the relevant courts had had no basis on which to disbelieve the true facts they had stated in their declarations of means. Furthermore, they argued that the courts had been obliged to verify their declarations of means if they had had doubts as to its accuracy.

The applicants submitted that the Government had misread their arguments and, in consequence, had made wrong findings of fact. For instance, the applicants had not stated that they had been deriving the anticipated income presented in the certificate issued by the Mikołajki Pomorskie Commune Office. Furthermore, they argued that they had not transacted any business on the stock exchange market as their shares and cash had been attached.

The Court 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.

For these reasons, the Court unanimously

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

Michael O’Boyle Nicolas Bratza Registrar Pres ident