DISSENTING OPINION OF JUDGE GARLICKI

It is with regret that I am unable to follow the majority ’ s position in this case. From a general perspective, I should like to refer to two arguments raised in the dissenting opinion of Judges Baka, Popovic and myself in the case of Teltronic-CATV v. Poland (no. 48140/99, judgment of 10 January 2006) :

- the legal regime governing how court fees are calculated in Poland is based on the rule that, in principle, the fees should represent 5% of the value of the claim. This general rule has never been called into question by the Court. Hence, it may simply be the manner in which this rule is applied in particular cases which prompts the Court to find that the Convention has been violated;

- each and every time that the Court embarks on an assessment of particular applications of domestic legislation, it ventures into an area where it must abide by the principle of subsidiarity . This means that the Court must respect decisions and assessments taken by the domestic jurisdictions unless those decisions and assessments appear to be clearly arbitrary and/or discriminatory. In such situations, however, the burden of proof lies with the Court.

In the present case the domestic courts asked the applicant to submit full information concerning his wife ’ s financial situation (the couple had chosen separate ownership of property). Both the Regional Court and, later, the Appellate Court, when refusing the applicant ’ s motion for exemption from the court fees, found that he had failed to provide that information (see paragraphs 13 and 15 of the judgment). In my opinion, the parties have an obligation to cooperate faithfully with the courts and should accept the consequences to provide such cooperation. Had the applicant submitted all the requested documents and had the domestic courts, on assessing those documents, refused exemption from the fees, the compatibility of such a refusal with the Convention standards could have been challenged before our Court. Only then could an argument alleging arbitrariness in the domestic courts ’ disregard of the legal relations governing his marriage have been raised in a valid manner. Given the manner in which events developed in this case, it is the applicant who should be blamed for its outcome.

Finally, I am not convinced by the Court ’ s approach to calculating the just satisfaction award. I have the impression that, as in other Polish cases concerning court fees, the calculation was done in a schematic manner. In particular, the Court did not establish whether the return of the applicant ’ s statement of claim resulted in an irrevocable loss of the opportunity to have his case heard. Only in such a situation would the relatively high level of the just satisfaction award appear justified.