CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 7 juillet 2020

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LITHUANIA (Application no. 75435/17)             JUDGMENT   STRASBOURG 7 July 2020   This judgment is final but it may be subject to editorial revision. In the case of Balkūnas v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Ivana Jelić, President,   Egidijus Kūris,   Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to: the application against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr   Dainoras Balkūnas (“the applicant”), on 19 October 2017; the decision to give notice to the Lithuanian Government (“the Government”) of the complaints concerning Article 6 § 1 of the Convention and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 16 June 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION The applicant complained about the refusal of the Supreme Court to partly exempt him from the payment of court fees for lodging an appeal on points of law in civil proceedings or to allow him to defer payment of those fees. THE FACTS 1.     The applicant was born in 1969 and lives in Varėna. He was represented by Ms E. Grucytė, a lawyer practising in Kaunas. 2.     The Government were represented by their Agent, Ms L. Urbaitė. Proceedings before the first-instance and appellate courts 3 .     In March 2011 M.K. lodged a civil claim against the applicant, claiming unpaid debt and late-payment fees, amounting to a total of 195,600   Lithuanian litai ((LTL), approximately 56,650 euros (EUR)), as well as 5% annual interest. The applicant disputed the claim and argued that, although he had signed a loan agreement with M.K., he had never received any money under that agreement. 4 .     On 12 August 2014 the Vilnius Regional Court allowed M.K.’s claim in full. 5 .     On 8 September 2014 the applicant appealed against that decision. He asked the Vilnius Regional Court to partly exempt him from the payment of court fees, in line with Article 83 § 3 of the Code of Civil Procedure (see paragraph   26 below). He submitted that the amount of the court fees for lodging the appeal was LTL 4,912 (EUR   1,422) and he was unable to pay it – he earned a salary of LTL 455 (EUR 132), from which he had to pay maintenance to his children and pay for his own accommodation, food and medication. He did not have any real estate. The applicant submitted that he had already paid LTL 500 (EUR 145) in court fees for the lodging of the appeal but was unable to pay the remaining part. He enclosed the following documents: a court decision ordering him to pay maintenance to his two children, born in 1997 and 1999; a certificate from his employer indicating his salary; and a certificate from the Centre of Registers showing that he did not have any real estate. 6 .     The Vilnius Regional Court ordered the applicant to correct his request. It considered that he had not adequately demonstrated that his financial situation was difficult. In addition, the applicant was represented by a lawyer, which showed that he could afford qualified legal assistance. The court ordered the applicant to submit proof of his expenses for accommodation, food and medication. 7 .     On 2 October 2014 the applicant lodged a corrected request to be partly exempted from the payment of court fees. He submitted that he had been ordered by a court to pay maintenance of LTL 1,000 (EUR 290) to each of his two children, but because of his difficult financial situation he had been unable to pay it and was LTL 16,000 (EUR 4,634) in arrears. He also submitted that he had health problems for which he had been hospitalised and had to take medication, which cost around LTL   50 (EUR   15) per month; he enclosed a doctor’s certificate and receipts for medication. Lastly, he submitted that he did not have any real estate and lived with his mother in her apartment. His mother paid for the utilities and he bought the food, which cost around LTL 100 (EUR 29) per week; he enclosed receipts. 8 .     On 6 October 2014 the Vilnius Regional Court partly exempted the applicant from the payment of court fees, allowing him to pay LTL 500 (EUR 145) instead of LTL 4,912 (EUR 1,422) (see paragraph 5 above). It stated that the documents provided by the applicant, showing his salary, lack of real estate, obligation to pay maintenance, and other expenses, proved that his financial situation was difficult. 9.     On 6 August 2015 the Court of Appeal quashed the Vilnius Regional Court’s decision of 12 August 2014 (see paragraph 4 above) and remitted the case for fresh examination. 10 .     On 15 October 2015 the Vilnius Regional Court, after a fresh examination, allowed M.K.’s claim in full. 11 .     On 9 November 2015 the applicant appealed against that decision and asked the Vilnius Regional Court to partly exempt him from the payment of court fees. He submitted similar arguments and supporting documents to those submitted in his request of 8 September 2014 (see paragraph   5 above). 12 .     On 22 February 2016 the Vilnius Regional Court partly exempted the applicant from the payment of court fees in line with Article   83 § 3 of the Code of Civil Procedure (see paragraph 26 below) and allowed him to pay EUR 150 instead of EUR 1,422. 13.     On 29 April 2016 the Court of Appeal quashed the Vilnius Regional Court’s decision of 15 October 2015 (see paragraph 10 above) and remitted the case for fresh examination. 14 .     On 21 September 2016 the Vilnius Regional Court, after a fresh examination, again allowed M.K.’s claim in full. 15 .     On 11 October 2016 the applicant appealed against that decision and asked the Vilnius Regional Court to partly exempt him from the payment of court fees. He submitted similar arguments and supporting documents to those submitted in his requests of 8 September 2014 and 9 November 2015 (see paragraphs 5 and 11 above). 16 .     On 21 October 2016 the Vilnius Regional Court partly exempted the applicant from the payment of court fees and allowed him to pay EUR   150 instead of EUR 1,422. It observed that the applicant had already been partly exempted from the payment of court fees and there was no information showing that his financial situation had improved. 17 .     On 15 February 2017 the Court of Appeal upheld the Vilnius Regional Court’s decision of 21 September 2016 (see paragraph   14 above). Proceedings before the Supreme Court 18 .     On 6 April 2017 the applicant lodged an appeal on points of law and asked the Supreme Court to partly exempt him from the payment of court fees. As in his previous requests, he submitted that his salary was EUR   175, from which he had to pay maintenance to one of his children who was still a minor, as well as pay for his own accommodation, food and medication; furthermore, he did not have any real estate. He stated that he had already paid part of the court fees – EUR 150 – but was unable to pay the remaining EUR 1,272. He enclosed similar supporting documents as he had in his previous requests (see paragraphs 5, 11 and 15 above). 19 .     In a decision adopted on 22 May 2017, the Supreme Court stated that the appeal on points of law lodged by the applicant met the relevant requirements of the Code of Civil Procedure and could be accepted for examination, but that the applicant had failed to pay the required court fees. The Supreme Court observed that a request to be exempted from the payment of court fees had to be adequately reasoned and supported by relevant evidence. Having assessed the reasons and the documents submitted by the applicant, it held that there were no grounds to exempt him from the payment of court fees in accordance with Article 83 § 3 of the Code of Civil Procedure. It ordered the applicant to pay the remaining EUR   1,272 by 5 June 2017 or to lodge a duly reasoned request to defer the payment (see paragraph 27 below), together with relevant evidence. 20 .     On 26 May 2017 the applicant lodged a request with the Supreme Court to defer the payment of the court fees. He repeated the arguments he had made in his previous request and enclosed the same supporting documents (see paragraph   18 above). 21 .     On 5 June 2017 the Supreme Court dismissed the applicant’s request. It stated that the payment of court fees could be deferred on the basis of an individual’s actual financial situation, and not solely on the basis of the funds in his or her possession. When assessing someone’s ability to pay court fees, a court had to take into consideration all of that person’s assets and the value of those assets. It had to assess the entirety of the relevant evidence, such as the information provided by the individual about his or her movable and immovable property, monetary funds and income, as well as other circumstances describing his or her financial situation. In line with the domestic case-law, an individual’s financial situation could be demonstrated by, inter alia , certificates from the Real Estate Registry, banks, State social insurance funds or the Centre of Registers. Documents provided by credit institutions had to cover a certain period of time because information about the money in a bank account did not show the cash flows in that account. 22 .     The Supreme Court considered that the information provided by the applicant was “fragmented” and insufficient to prove his difficult financial situation. Furthermore, it transpired from the case file that he had entered into contracts concerning large sums of money and that he had agreed to pay a rather high amount of maintenance to his children (see paragraph   7 above). In the Supreme Court’s view, those circumstances did not give grounds to find that the applicant’s financial situation was difficult. It ordered the applicant to pay the remaining part of the court fees (EUR   1,272) by 15 June 2017. 23 .     On 12 June 2017 the applicant lodged a new request to be partly exempted from the payment of court fees or to defer the payment. He argued that the Supreme Court had incorrectly assessed the documents showing his financial situation and had unreasonably ordered him to pay the court fees, thereby restricting his right of access to a court. He repeated the arguments he had made in his previous requests (see paragraphs 5, 11, 15 and 18 above). He also submitted that his bank accounts had been frozen because he had a debt of EUR   11,370 for unpaid maintenance; he enclosed a copy of his banking records and a certificate from his employer. He further submitted that from the start of the proceedings he had never been able to pay the full amount of the court fees, but that had not precluded him from defending his rights before the courts, and there was no information that his financial situation had improved. 24 .     On 15 June 2017 the Supreme Court dismissed the applicant’s request. It stated that it had already examined those same circumstances in its previous decision (see paragraphs 21 and 22 above), and that the additional information provided by the applicant did not constitute new grounds to find that his financial situation was difficult. Since the applicant had failed to pay the court fees, the Supreme Court refused to accept his appeal on points of law for examination. RELEVANT LEGAL FRAMEWORK 25 .     Article 80 § 1 of the Code of Civil Procedure (hereinafter “the CCP”) lays down the rules for calculating the amount of court fees due in different types of cases. In cases concerning monetary disputes, the amount of the court fees is related to the amount in dispute. 26 .     Article 83 § 3 of the CCP provides that, at an individual’s request and taking into account his or her financial situation, a court may partly exempt him or her from the payment of court fees. A request to be partly exempted has to be well reasoned and based on relevant proof. The court must provide adequate reasons for its decision. 27 .     Article 84 of the CCP provides that a court, taking into account an individual’s financial situation, may defer the payment of court fees. A request to have the payment of court fees deferred has to be well reasoned and based on relevant proof. 28 .     Article 80 § 7 of the CCP provides that when procedural documents or their enclosures are submitted to a court electronically, only 75% of the required amount of court fees is due. 29 .     Article 20 § 1 of the Law on State-Guaranteed Legal Aid provides that individuals who are entitled to State-guaranteed legal aid are exempted from, inter alia , the payment of court fees in civil cases. Article   11 § 7 (4) of that Law provides that State-guaranteed legal aid is not provided in cases which concern claims arising from commercial activities. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 30.     The applicant complained that the refusal of the Supreme Court to partly exempt him from the payment of court fees had restricted his access to a court. He relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Admissibility 31.     The Court notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions (a)    The applicant 32.     The applicant submitted that the refusal by the Supreme Court to partly exempt him from the payment of court fees or to allow him to defer that payment had denied him access to a court. In the applicant’s view, he had provided relevant arguments and supporting documents to demonstrate that he had not been able to pay the required amount of court fees, and the Supreme Court’s decisions had not been adequately reasoned. He further contended that the lower courts had partly exempted him from the payment of court fees on the basis of those same documents, and there had not been any information that his financial situation had improved at the time when he had attempted to lodge an appeal on points of law. 33 .     The applicant also submitted that he had not had any other avenue available to him in order to be relieved from the obligation to pay court fees, contrary to the Government’s submissions, (see paragraph 37 below). In particular, he could not have applied for State-guaranteed legal aid because the dispute between him and M.K. had related to commercial activities, and the law explicitly excluded the possibility of obtaining State-guaranteed legal aid in such cases (see paragraph 29 above). Furthermore, even if he had submitted his appeal on points of law electronically, the reduced court fees (see paragraph 28 above) would still have been excessive for him, in view of his poor financial situation. (b)    The Government 34 .     The Government submitted, firstly, that the amount of the court fees due from the applicant (EUR 1,422) had been related to the amount in dispute (EUR 56,650, see paragraph 25 above) and could not be considered excessive. In any event, the requirement to pay court fees had not precluded the applicant from having his case heard by a court because the case had been examined three times before the first-instance and appellate courts. 35 .     The Government also referred to the general principle established in the Court’s case-law that the conditions of admissibility of an appeal on points of law could be more rigorous than those for ordinary appeals. In this connection, they relied on Běleš and Others v. the Czech Republic (no.   47273/99, § 62, ECHR 2002-IX). Thus, in the Government’s view, it was not surprising that the Supreme Court had arrived at a different conclusion to the lower courts. 36.     Furthermore, the Government argued that the Supreme Court had provided the applicant with several opportunities to lodge a properly reasoned request, but the applicant himself had failed to comply with those requirements. They pointed out that throughout the domestic proceedings the applicant had been represented by a professional lawyer, and therefore he should have been able to comply with the requirements for lodging a well-reasoned request, set forth in the domestic law, which had, moreover, been explained to him by the courts on a number of occasions (see paragraphs   6, 19, 21 and 22 above). 37 .     Lastly, the Government submitted that the domestic law provided for various other possibilities for individuals with insufficient means to apply to a court (see paragraphs 28 and 29 above). The Court’s assessment (a)    General principles 38.     The general principles concerning the right of access to a court, including courts of appeal or of cassation, are summarised in Zubac v.   Croatia ([GC], no. 40160/12, §§ 76-82, 5 April 2018). 39.     The Court reiterates that the requirement to pay fees to civil courts in connection with claims they are asked to determine cannot be regarded as a restriction on the right of access to a court that is incompatible per se with Article 6 § 1 of the Convention. However, the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant’s ability to pay them, and the phase of the proceedings at which that restriction has been imposed are factors which are material in determining whether or not a person enjoyed his right of access and had “a ... hearing by [a] tribunal” (see Kreuz v. Poland , no.   28249/95, §   60, ECHR   2001 ‑ VI). 40.     The Court also reiterates that restrictions of a purely financial nature which are completely unrelated to the prospects of success of the claim should be subject to a particularly rigorous scrutiny from the point of view of the interests of justice (see Shishkov v. Russia , no. 26746/05, §   112, 20   February 2014, and the cases cited therein). (b)    Application of the above principles to the present case 41.     In the present case, the applicant’s appeal on points of law was not accepted for examination by the Supreme Court because he had not paid the court fees of EUR   1,422 (see paragraph 24 above). 42.     The Court notes, at the outset, that the amount of the court fees due from the applicant were not within his control – they were calculated on the basis of the amount of the claim lodged by M.K. (see paragraphs 3, 25 and 34 above, and contrast Harrison McKee v. Hungary , no.   22840/07, §   33, 3   June 2014). 43.     The Court accepts that, as submitted by the Government, the amount of the court fees was not excessive per se (see paragraph   34 above, and contrast Jedamski and Jedamska v. Poland , no. 73547/01, §   61, 26   July 2005). However, what is important in the present case is not whether the court fees were excessive but whether the applicant was able to pay them (see Kreuz , cited above, § 60). 44.     At all stages of the domestic proceedings, the applicant asked for a partial exemption from the payment of court fees on the grounds that his salary was low, he did not have any real estate, he had to pay child maintenance, and he also had other necessary expenses. In order to prove those circumstances, he enclosed documents from the Centre of Registers, from his employer and from the courts (see paragraphs 5, 7, 11, 15, 18, 20 and 23 above). 45.     The Vilnius Regional Court accepted that he had sufficiently demonstrated his difficult financial situation (see paragraphs 8, 12 and 16 above). When granting the applicant the exemption for the third time, that court also observed that there was no information showing that his financial situation had improved since the granting of the last exemption (see paragraph 16 above). In contrast, the Supreme Court refused to partly exempt him from the payment of court fees or to defer that payment, finding that the documents submitted by the applicant were “fragmented” and did not fully reflect his financial situation (see paragraphs 19, 21, 22 and 24 above). 46.     The Government submitted that, in accordance with the Court’s case-law, the conditions of admissibility for an appeal on points of law could be more rigorous than those for ordinary appeals (see paragraph   35 above, and Zubac , cited above, § 82). However, the Court observes that the refusal of the Supreme Court to accept the applicant’s appeal on points of law for examination was not based on the manifestly ill-founded nature of the appeal or the lack of important legal issues raised therein, or the applicant’s failure to comply with the relevant procedural requirements. On the contrary, the Supreme Court explicitly acknowledged that the appeal met the relevant requirements and could have been accepted for examination (see paragraph 19 above). Accordingly, the restriction of the applicant’s access to the Supreme Court in the present case was of a purely financial nature, unrelated to the merits of his appeal or its prospects of success (see Teltronic-CATV v. Poland , no. 48140/99, § 60, 10   January 2006, and FC Mretebi v. Georgia , no. 38736/04, § 47, 31 July 2007). 47.     The Court cannot rule out the possibility that the Supreme Court may, in principle, reach a different conclusion to lower courts with regard to the granting of an exemption from the payment of court fees. However, in the present case, neither the Supreme Court in its decisions, nor the Government in their submissions before the Court, provided any reasons which would justify a different assessment of the applicant’s financial situation by the Supreme Court from that performed by the lower courts. 48.     In particular, although the Supreme Court considered the documents submitted by the applicant to be “fragmented” (see paragraph   22 above), it did not indicate with sufficient clarity what additional information would have been necessary for a comprehensive assessment of his financial situation (compare with the approach of the Vilnius Regional Court in paragraph 6 above). Although it emphasised the importance of information about an individual’s movable and immovable property, monetary funds and income, which could be demonstrated by, inter alia , certificates from the Real Estate Registry, banks, State social insurance funds or the Centre of Registers (see paragraph 21 above), the applicant did provide such information to the Supreme Court (see paragraphs   18 and 23 above) and the latter did not question the veracity of any of the documents submitted by the applicant (see, mutatis mutandis , Malahov v. Moldova , no. 32268/02, § 31, 7 June 2007). The Supreme Court did not explain why it considered the information he had provided to be inadequate or what other information was missing, and neither did it find that the applicant’s financial situation had improved since he had been granted an exemption from the payment of the court fees by the lower court (see, mutatis mutandis , Mehmet and Suna Yiğit v. Turkey , no. 52658/99, § 36, 17 July 2007). Accordingly, the Court is of the view that the Supreme Court failed to provide adequate reasons for refusing the applicant’s request to partly exempt him from the payment of court fees or to defer that payment (see also the relevant provisions of the CCP, requiring courts to adequately reason their decisions, in paragraphs   26 and   27 above). 49.     In such circumstances, the Court is unable to accept that restricting the applicant’s access to the Supreme Court was necessary and proportionate. Therefore, irrespective of the fact that the applicant’s claims were examined at two levels of jurisdiction, the Court finds that the refusal by the Supreme Court to accept his appeal on points of law for examination because of purely financial considerations impaired the very essence of his right of access to a court (see Kniat v. Poland , no. 71731/01, § 46, 26 July 2005). 50.     In the light of this conclusion, the Court considers that in the present case it is immaterial whether any other avenue for reducing the amount of the court fees was available to the applicant (see paragraphs   33 and 37 above). 51.     There has accordingly been a violation of Article 6 § 1 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 52.     Article   41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage The parties’ submissions (a)    The applicant 53.     The applicant claimed 56,650 euros (EUR) in respect of pecuniary damage, corresponding to the amount which he had had to pay to M.K. following the court proceedings (see paragraphs 3, 14 and 17 above). 54.     He also claimed EUR 100,000 in respect of non-pecuniary damage. He submitted that the civil proceedings had caused him a great deal of stress and anxiety, his health had deteriorated and his marriage had broken down. (b)    The Government 55.     The Government submitted that there was no link between the pecuniary damage claimed by the applicant and the violation of his right of access to a court, as it could not be speculated what the outcome of the proceedings would have been if his appeal on points of law had been accepted for examination. 56.     They also submitted that the applicant’s claim in respect of non-pecuniary damage was excessive and unsubstantiated. The Court’s assessment 57.     The Court has found a violation of Article 6 § 1 of the Convention in the present case on account of the restriction of the applicant’s access to the Supreme Court. However, it cannot speculate as to the outcome of the domestic proceedings, and it does not follow that had that violation not occurred, the Supreme Court would have rejected the civil claim lodged against him. Therefore, the Court considers that the applicant has not established that the pecuniary damage alleged can be directly linked to the violation found (see Kožemiakina v. Lithuania , no. 231/15, § 61, 2   October 2018, and the case-law cited therein). 58.     Furthermore, it considers that where, as in the present case, an individual has been the victim of proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if he or she so requests, represents in principle an appropriate way of redressing the violation (see Cudak v. Lithuania [GC], no.   15869/02, §   79, ECHR 2010, and the cases cited therein). 59.     Accordingly, the Court dismisses the applicant’s claim in respect of pecuniary damage. 60.     At the same time, it accepts that the violation of his right of access to a court must have caused the applicant distress and inconvenience. However, the Court finds the amount claimed by the applicant to be excessive. Making its award on an equitable basis, the Court awards the applicant EUR 2,000 in respect of non-pecuniary damage. Costs and expenses 61.     The applicant did not submit any claim in respect of costs and expenses. The Court therefore makes no award under this head. Default interest 62.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds (a)   that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 July 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Hasan Bakırcı   Ivana Jelić Deputy Registrar   President