CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 avril 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                       Application No. 28249/95                     by Henryk KREUZ                     against Poland          The European Commission of Human Rights sitting in private on 20 April 1998, the following members being present:             MM    S. TRECHSEL, President                M.P. PELLONPÄÄ                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H. DANELIUS           Mrs   G.H. THUNE           MM    F. MARTINEZ                C.L. ROZAKIS           Mrs   J. LIDDY           MM    L. LOUCAIDES                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA                M. VILA AMIGÓ           Mrs   M. HION           MM    R. NICOLINI                A. ARABADJIEV             Mr    M. de SALVIA, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 10 May 1995 by Henryk KREUZ against Poland and registered on 18 August 1995 under file No. 28249/95;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      14 August 1997 and the observations in reply submitted by the      applicant on 17 October 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1955, has dual Polish and Austrian citizenship.   He is a technician and resides permanently in Austria.        The facts of the case, as submitted by the parties, may be summarised as follows:     A.    Particular circumstances of the case        On 10 July 1991 the Plock Town Office granted the applicant a provisional zoning approval concerning the construction of a car-wash.        On an unspecified date the applicant requested the Mayor of Plock to confirm the zoning approval; in particular he requested confirmation that the construction in question could be located in a specific area.        On 23 November 1992 the Mayor of Plock refused to grant the applicant the requested zoning approval.        On 27 January 1993 the Plock Self-Government Board of Appeal (Kolegium Odwolawcze przy Sejmiku Samorz*dowym), upon the applicant's appeal, upheld the decision of 23 November 1992.        On an unspecified date the applicant lodged a complaint against the decision of 27 January 1993 with the Supreme Administrative Court (Naczelny S*d Administracyjny).   He submitted, inter alia, that the authorities had arbitrarily found that the development planned by him did not conform with the class of land use set out in the relevant master plan.   He alleged serious errors of fact and law committed by the administrative authorities both at first instance and on appeal.        On 27 January 1994 the Supreme Administrative Court quashed the decisions of the organs of first and second instance and referred the case back to the organ of first instance.   The court found that the conduct of the   authorities in question had amounted to a serious breach of the rule of law.   The court held that they had arbitrarily refused the applicant's request for zoning approval and that they had clearly infringed the master plan requirements.   In addition, the court held that the authorities had made erroneous findings of fact in the applicant's case.        On 9 May 1994 the applicant lodged a claim for compensation against the Plock Municipality with the Plock Regional Court (S*d Wojewódzki).   He requested compensation of PLN 585,000 arising from the fact that the municipal authorities had not issued any decision concerning his request for zoning approval.   He claimed, in particular, that as a result of the inactivity of the relevant authorities and the length of the zoning approval proceedings he had lost money which had been intended for investment in his business venture, he had been deprived of future profits and he had lost his prospective partners, who had been about to participate in his investment.   He also relied on the judgment of the Supreme Administrative Court of 27 January 1994 in which it had been established that the authorities concerned had been in breach of the rule of law.        On the same date the applicant requested the Plock Regional Court to exempt him from the whole of the court fees.   He submitted that he was unemployed, had insufficient income and that he was not involved in any profit-making activity since his efforts to establish such an activity had been ruined by the municipal authorities' conduct.   On 4 July 1994 the Plock Regional Court rejected the applicant's claim and found that the claim was premature as the zoning approval proceedings were still pending.   The court expressed the opinion that a final ruling on the zoning approval constituted a preliminary condition sine qua non of access to a civil court in the applicant's case.   As regards the request for exemption from the court fees, the court decided not to collect such fees as the claim had been rejected, i.e. there had been no need to examine the case on its merits.        On 27 July 1994 the applicant lodged an interlocutory appeal against the decision rejecting his claim.   He submitted that he had filed an action based on the general principles of the law of tort and that in such a case no issue of preliminary conditions for access to a civil court arose.        On 1 August 1994 the Plock Regional Court ordered the applicant to pay a court fee of PLN 20,000 for lodging the interlocutory appeal.        On 9 August 1994 the applicant again requested the court to grant him a general exemption from court fees.   He submitted that he was not able to pay the court fees due since he had put all his savings into the preparation of his intended investment in Poland and that the property he owned at the material time (i.e. a flat in Vienna, his car and the share capital in his company) did not provide him with a sufficient income to pay the amount of court fees required.   He submitted a financial declaration according to section 113 para. 1 of the Code of Civil Procedure.        On 12 August 1994 the Plock Regional Court granted the applicant an exemption from court fees only as regards the   interlocutory appeal proceedings.        On 27 September 1994 the Warsaw Court of Appeal (S*d Apelacyjny) quashed the decision of the court of first instance of 4 July 1994. The court held that since the applicant's claim for compensation had been based on civil, not administrative law, no issue of preliminary conditions of access to a civil court had arisen and, therefore, the case should be examined on its merits.        On an unspecified date the case was referred back to the Plock Regional Court.        On 17 November 1994 the Plock Regional Court again examined the applicant's request for a general exemption from court fees.   The court found that the fees due for lodging the claim - PLN 585,000   - were unusually high.   Therefore, the court ordered that the applicant should pay fees not exceeding PLN 10,000.   The court stated, inter alia:        "... the plaintiff, who lives on his savings of an unspecified      value, should be able to pay fees amounting to PLN 10,000, since      he conducted a business activity and invested considerable      capital in his investments.   When investing his money in a      business activity, the plaintiff had to take into account that      the fact of engaging in a business activity could in itself imply      the necessity of litigation before the courts.   Therefore, he      should have secured [in advance] sufficient financial resources      for such purposes [e.g. court fees]."        On 30 November 1994 the applicant filed an appeal against the above order to the Warsaw Court of Appeal.   He argued, in particular, that it had been unreasonable of the court of first instance to find that a business activity could imply a necessity of litigation concerning the negligence of the state authorities, since they should normally be expected to act in accordance with the rule of law.   He also submitted that it had clearly transpired from his financial declaration that he was unable to pay the court fees due.   Moreover, the applicant submitted that in case of any doubt as to his financial situation, the court of first instance had been obliged to verify his declaration under section 116 para. 1 of the Code of Civil Procedure. Finally, he contended that his financial situation had remained unchanged as from 12 August 1994, when the same court had granted him the exemption from the court fees.        On 29 December 1994 the Warsaw Court of Appeal dismissed the above appeal, finding that it was likely that the applicant had spare financial resources at his disposal since he had planned the investment in Poland.   The court held that the applicant had been exempted from most of the court fees due and that there were no reasons for any extra exemption.        The applicant failed to pay the court fees required from him. As a consequence, on an unspecified date, the Plock Regional Court ordered that the applicant's original statement of claim be returned to him.     B.    Relevant domestic law and practice        Under Polish law everyone, except public organs and institutions, is obliged to pay a court fee at the time of lodging a statement of claim with the competent court.   As the case proceeds, a party is obliged to pay additional court fees at the time of lodging any further appeal or constitutional complaint.   The court fees incurred are, depending upon the outcome of the case, finally borne either by the defendant (who is ordered to pay all the costs of litigation in a final judgment) or by the unsuccessful plaintiff.        In principle, court fees are based on a percentage (in the case of the fee due for lodging a claim or an appeal) or a fraction (in the case of the fee due for lodging an interlocutory appeal) of the value of the claim in question.        The Law of 13 June 1967 on Court Fees and Other Charges in Civil Cases (as amended) sets out general principles with respect to the collection of fees by courts.        Section 5 para. 1 of the Law provides:        "1.   A court shall collect court fees from the person who has      lodged any pleadings which are subject to such fees."        According to Section 8 of the Law, the State Treasury, Municipalities and other public organs or institutions are not obliged to pay court fees, provided that the claim in question does not relate to their commercial activity.        Section 16 of the Law, insofar as relevant, provides:        "1.   The court shall not take any action if the court fee due      for lodging a given pleading is not paid.   In such a case the      president of the court shall order the party concerned to pay the      fee due within a period not exceeding seven days, on pain of      having the pleading returned.   If the party does not comply with      the time-limit, the pleading shall be returned to this party. ...        3.    Any appeal, cassation appeal, interlocutory appeal or      objection to a judgment by default ... shall be rejected if the      due court fee was not paid within the [above] time-limit."        Section 18 of the Law provides:        "A pleading which has been returned to a party as a result of      the fact that the court fee had not been paid, shall not be      of any legal effect."          Paragraph 1 of the Ordinance of the Minister of Justice of 17 May 1993 on Court Fees in Civil Cases (as amended) provides, insofar as relevant:        "(4) Where the value of the claim exceeds PLN 100,000 the court      fee shall amount to PLN 6,600 for the first PLN 100,000 and 5%      of the remaining value of the claim.   In any case the court fee      due shall not exceed the sum of PLN 100,000."        Exemption from court fees is a matter for the discretion of the court competent to deal with the case.        Section 113 para. 1 of the Code of Civil Procedure provides:        "1.   An individual may request the court competent to deal with      the case to grant him exemption from court fees provided that he      submits a declaration to the effect that the fees required entail      a substantial reduction in his and his family's standard of      living.   Such a declaration shall contain details concerning his      family, assets and income.   It falls within the court's      discretion to assess whether the declaration justifies granting      the exemption requested."        Section 116 para. 1 of the Code of Civil Procedure provides:        "1.   In case of doubt ... as to the real financial situation           of the party requesting exemption from court fees, the           court may order the verification of his declaration."        Section 120 para. 1 of the Code (in the version applicable at the material time), insofar as relevant, provided :        "1.   The court shall revoke an exemption from court fees or      legal assistance granted if the basis therefor did not exist or      has ceased to exist.   In either instance the party concerned      shall pay all court and/or legal fees due in his case ... ."        Under Polish law fees collected by courts do not constitute, nor are they equivalent to security for costs which may, upon a defendant's motion, be ordered in separate proceedings.   They are transferred by courts to the State Treasury and are deemed to be part of its income.     COMPLAINTS        The applicant complains under Article 6 para. 1 of the Convention that he was deprived of access to a court for the determination of his civil rights as the amount of court fees required from him by the Polish courts prevented him from pursuing a civil action against public authorities.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 10 May 1995 and registered on 18 August 1995.        On 9 April 1997 the Commission decided to communicate the applicant's complaint under Article 6 para. 1 of the Convention about the lack of access to a court to the respondent Government and to declare the remainder of the application inadmissible.        The Government's written observations were submitted on 14 August 1997, after the second extension of the time-limit fixed for that purpose.   The applicant replied on 17 October 1997.        On 28 October 1997 the Commission granted the applicant legal aid.        On 15 February 1998 the Government submitted a translation of their observations.     THE LAW        The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that he was deprived of access to a court for the determination of his civil rights as the amount of court fees required from him by the Polish courts prevented him from pursuing a civil action against public authorities.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides:        "1.   In the determination of his civil rights and obligations      ... everyone is entitled to a ... hearing ... by   [a] ...      tribunal established by law. ..."        The Government maintain that, according to Polish law relating to exemption from court fees, it was for the applicant to prove that he was unable to pay the fees required from him.   However, he merely submitted a general declaration, stating that he lived on savings of an unspecified value.   Thus, the courts found that it was unjustified to grant him exemption from the whole of the court fees.   Moreover, they finally exempted the applicant from two-thirds of the fee due for lodging his claim.   At the material time the sum in question was equal to approximately twelve months' average salary in Poland.   It cannot, therefore, be said that the fees eventually required from the applicant would have been detrimental to his financial situation.        Furthermore, the Government point out that if the courts had granted the applicant's request, the burden of the fees would have fallen on the State Treasury.   Such a situation would have infringed the principle of equality before the law, because other parties to civil proceedings bear costs of litigation even though their financial situation is more difficult than the applicant's.        The applicant replies that an individual's right of access to a court takes precedence over the State Treasury's interest in deriving profit from court fees.   Therefore, the principle of equality before the law invoked by the Government requires the State to exempt an individual from court fees when their amount may bar him from submitting his claim to the courts for adjudication.   In any event, according to Polish law, the courts may at any time revoke the exemption granted if this is justified in view of a subsequent improvement in the financial situation of the person concerned.        The applicant admits that it falls within the courts' discretion to decide whether or not exemption from court fees is justified in a given case.   However, he submitted the declaration required by Section 113 para. 1 of the Code of Civil Procedure containing the details of his financial situation and the Plock Regional Court did not hesitate to exempt him from the fees of PLN 20,000 due for lodging an interlocutory appeal as transpires from that's court decision of 12 August 1994.   It neither questioned the veracity of his declaration at this or any further stage of the proceedings in his case, nor did it order the verification of his statements under Section 116 para. 1 of the Code of Civil Procedure.   The question therefore arises why his true statements were disregarded.            Finally, the applicant stresses that, as the Government have pointed out, the sum of PLN 10,000 eventually required from him exceeded an average annual income in Poland.   It was unusually high and disproportionate to a normal standard of living and thus in itself amounted to a bar to access to a court.        The Commission 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.   The Commission concludes, therefore, that the application is not manifestly ill- founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, by a majority,          DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.          M. de SALVIA                               S. TRECHSEL      Secretary                                 President to the Commission                           of the Commission