Communicated on 8 February 2021 Published on 1 March 2021

FIRST SECTION

Application no. 61817/19 Edyta GAŁĘZIOWSKA against Poland lodged on 8 November 2019

STATEMENT OF FACTS

The applicant, Ms Edyta Gałęziowska, is a Polish national who was born in 1973 and lives in Lublin. She is represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warsaw.

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

The applicant is the mother of a teenage boy (B.). The boy ’ s father (M.) is a colonel in the Polish Army and does not live with the applicant or his son. On 9 May 2013 the Lublin Regional Court ( Sąd Okręgowy ) limited the scope of M. ’ s parental authority ( ograniczenie władzy rodzicielskiej ) and ordered him to pay 1,500 Polish zloty (PLN approx. 375 euros – EUR) monthly in child support. He was also ordered to cover the costs of the applicant ’ s and B. ’ s rent for their flat.

On 11 July 2018 the applicant lodged a civil claim against M. with the Chełm District Court ( Sąd Rejonowy ), in which she claimed a total of over 17,000 Polish zlotys (PLN), divided into four sums in four different currencies (Swiss francs, US dollars, euros and Polish zlotys). She argued that her son attended an International Baccalaureate programme, which entailed costs of additional language and educational courses, as well as administrative fees. Moreover, she indicated that B. had been diagnosed with a genetic mutation, requiring her to order special medication available only on the American market. She also submitted that since February 2015 M. had failed to comply with his obligation to cover rent costs, paying only half the amount. The claim was based on Article 140 of the Family and Custody Code ( kodeks rodzinny i opiekuńczy ).

The applicant concluded her claim by requesting a waiver of court fees and appointment of a legal aid lawyer. She provided the District Court with a detailed calculation of her income and monthly expenses, from which it appeared that she had no possibility to collect money for the fees of a lawyer of her own choice. She also explained that she had been diagnosed with Alzheimer ’ s disease (in its early stage), which prevented her from arguing effectively before the court. She attached the relevant medical certificate to her claim, as well as other evidence mentioned therein.

On 23 July 2018 the Chełm District Court informed the applicant that the President ( Przewodniczący ) had calculated the applicable court fee in the amount of PLN 881 and that she could appeal against the President ’ s order ( zarządzenie ) within seven days from the date of service of the information.

On the same day the Chełm District Court summoned the applicant to rectify formal shortcomings of her claim ( uzupełnienie braków formalnych pozwu ) by lodging a submission ( pismo procesowe ), in which she would indicate a precise calculation of each sum claimed. The summons stated that the reasoning of her claim contained different values to those sought in the summary of the claim.

Neither document contained any reference to the applicant ’ s request for a waiver of court fees or appointment of a legal aid lawyer.

On 14 August 2018 the applicant lodged a submission in which she indicated the method of calculation of her claims. Consequently, she also stated that the value of the claim ( wartość przedmiotu sporu ) had been modified.

On 24 September 2018 the Chełm District Court again summoned her to rectify formal shortcomings of her claim by lodging a submission, in which she should explain the method of calculation of one of the sums sought and provide the combined value of her claim, applying the official exchange rate of the Polish National Bank at the date of lodging the claim. In particular, she was summoned to indicate the period of time for which she sought a particular sum.

On 22 October 2018 the applicant complied with the summons and provided the District Court with detailed calculations.

On 10 November 2018 the applicant lodged a submission entitled “Submission concerning the rectification of own writing mistakes” ( pismo procesowe w sprawie sprostowania własnych omyłek pisarskich ). In it, she explained that she had made three mistakes in her calculations of 22 October 2018 and provided updated values.

On 8 November 2018 the Chełm District Court ordered the return of her claim ( zwrot pozwu ). It reasoned that the applicant had failed to explain the methods by which she had calculated the value of her claim and thus failed to comply with the summons ordering her to rectify the formal shortcomings. The District Court held that the value of the claim indicated by the applicant was different from the sum of all particular amounts indicated in her calculations. The difference calculated by the District Court was PLN 56.77 (approx. EUR 14.20).

On 13 November 2018 the order was dispatched to the applicant. On 4 December 2018 it was returned to the District Court as unclaimed at the post office. A writ from the post office stated that the correspondence had been twice notified at the applicant ’ s address: on 16 November 2018 and on 26 November 2018.

On 2 January 2019 the Chełm District Court returned the claim to the applicant. It informed her that the return, as a factual activity ( czynność faktyczna ), was not subject to appeal. The claim was served on the applicant on 22 January 2019.

On 28 January 2019 the applicant lodged an appeal ( zażalenie ) against the order on the return of her claim and requested a reinstatement of the time-limit ( przywrócenie terminu ) to appeal. She submitted that she had never received any notice from the post office concerning the District Court ’ s order of 8 November 2018. She asked for three witnesses to be questioned and argued that their testimony would confirm that the postman often confused mailboxes at her address and that she had no possibility to discover the contents of the correspondence of 13 November 2018. In her appeal she relied on the fact that the District Court had failed to rule on her request for appointment of a legal aid lawyer and alleged a breach of Article 124 of the Code of Civil Procedure ( kodeks postępowania cywilnego – the “CCP”). She explained that Alzheimer ’ s disease had already affected her cognitive abilities, which effectively deprived her of a possibility to defend her interests.

On 20 March 2019 the Chełm District Court dismissed her request for reinstatement of the time-limit to appeal and rejected her appeal of 28 January 2019. The District Court held that the time-limit could be reinstated only if failure to act on time had not been the result of actions or omissions of the interested party. It determined that the applicant could have visited the post office regularly and asked whether any correspondence addressed to her had been stored there. Failure to do so constituted – in the view of the District Court – negligence. The court concluded that the return of the applicant ’ s claim did not result in res iudicata , thus she could start a new set of proceedings. The ruling did not refer to the applicant ’ s request for questioning of witnesses or to the fact that her request for the appointment of a legal aid lawyer remained unanswered.

On 11 April 2019 the applicant lodged an appeal with the Lublin Regional Court ( Sąd Okręgowy ). She argued that the District Court had failed to examine properly her request for reinstatement of the time-limit and that her request for appointment of a legal aid lawyer was ignored. She requested a waiver of court fees for lodging an appeal.

On 30 May 2019 the Chełm District Court, composed of the same judge who had ordered the return of the applicant ’ s claim and who dismissed her request for reinstatement of the time-limit to appeal against it, waived the court fees for lodging an appeal and appointed a legal aid lawyer for her. According to the applicant, she had a brief conversation with the appointed lawyer, who explained that he was still waiting for an official appointment from the Lublin Regional Bar ( Okręgowa Rada Adwokacka ). No action was undertaken by him.

On 26 June 2019 the Lublin Regional Court dismissed the applicant ’ s appeal. It held that the applicant showed negligence by not asking the post office whether any correspondence addressed to her had remained uncollected. It also stated that the District Court should have appointed a lawyer prior to returning her claim. However eventually (on 30 May 2019) it had granted her claim and, in any event, the calculation of the value of her claim did not require legal training. It concluded by stating that the applicant could have lodged a new claim.

According to the applicant, her claim became time-barred on an unspecified date during the course of proceedings.

Article 140 of the Family and Custody Code reads:

Ҥ 1. A person who provides another means of subsistence or education without being required to do so or as required for the reason that obtaining such maintenance on time from the person liable in the closer or the same order would be impossible or associated with excessive difficulties, one may request a refund from the person who should have provided such maintenance.

§ 2. The claim provided for in the preceding paragraph shall become time-barred after three years.”

Article 96 of that Code, in so far as relevant, reads:

“§ 1. Parents raise a child remaining under their parental authority and guide it. They are obliged to care for the child ’ s physical and spiritual development and to prepare it for work for the benefit of society, in accordance with its abilities.”

Article 102 of the Act on Court Fees in Civil Cases ( Ustawa o kosztach sÄ…dowych w sprawach cywilnych ), in so far as relevant, reads:

“1. An individual may request an exemption from court fees, provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family ’ s standard of living.”

Article 117 of the CCP, in so far as relevant, reads:

“§ 1. An individual exempted from court fees by a court may request appointment of an advocate ( adwokat ) or an attorney-at-law ( radca prawny ).”

Article 124 of that Code, in so far as relevant, reads:

“§ 1. The filing of a request to appoint an advocate or an attorney-at-law as well as of an appeal against the refusal to appoint the same shall not suspend pending proceedings, unless the petition to appoint an advocate or an attorney-at-law for a plaintiff was filed in a claim or before bringing the claim. However, the court may postpone hearing a case until a final decision concerning said request was delivered, and consequently withhold setting a date for a trial or cancel or postpone an already scheduled trial.”

COMPLAINTS

The applicant complains under Article 6 of the Convention that she was effectively denied access to a court. In particular, she claims that the granting of legal aid after ten months from lodging her claim and after its return was illusory.

QUESTION TO THE PARTIES

Did the applicant have access to a court for the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the first-instance court ’ s refusal to rule on the applicant ’ s request for legal aid before the return of her claim lead to a denial of justice? Was the approach of the courts which ruled on the applicant ’ s request to reinstate the time-limit to appeal against the order on the return of her claim excessively formalistic? Reference is made to the fact that neither court referred to the applicant ’ s motion to have witnesses questioned and held that she had shown negligence, since she failed to check regularly whether any uncollected correspondence had been stored at the post office.