I incorrectly predicted that there's no violation of human rights in WESOŁEK v. POLAND.

Judgment

FIRST SECTION

CASE OF WESOŁEK v. POLAND

(Application no. 65860/12)

JUDGMENT

STRASBOURG

13 June 2019

This judgment is final but it may be subject to editorial revision. In the case of Wesołek v. Poland,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Pere Pastor Vilanova, President,Krzysztof Wojtyczek,Pauliine Koskelo, judges,and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 13 May 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 65860/12) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Ewa Wesołek (“the applicant”), on 26 September 2012. 2. The applicant was represented by Mr K. Nawrocki, a lawyer practising in Leszno. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs. 3. On 3 February 2016 notice of the application was given to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1965 and lives in Piaski. 5. On 2 May 2011 the Koszalin Regional Court issued a payment order (nakaz zapłaty) against the applicant. It stipulated that she was to pay to the claimant, a certain D.K., the sum of 156,000 Polish zlotys (PLN), equivalent to 36,000 euros (EUR). 6. The applicant lodged an appeal (zarzuty) within the time-limit. She complained that the payment order had been based on a lease contract which had turned out to be null and void but which she had secured by a blank bill of exchange signed by her. She challenged that basis for the payment order and considered it illegal and unfounded. She further applied for exemption from the court fees. 7. On 13 July 2011 a court officer from the Koszalin Regional Court (referendarz sądowy) decided to partly exempt her from the fees. The court examined in detail the financial situation of the applicant. In particular it noted that in 2010 her company had generated a gross income of PLN 213,000; however, the expenses exceeded this sum by approximately PLN 50,000. As regards the first four months of 2011 the applicant had declared a gross income of PLN 53,600 and expenses of PLN 48,500; therefore she had generated a net income of over PLN 5,000. Moreover the applicant had declared that she had other financial obligations, amounting to PLN 4,000 per month, which she had been paying on time. The court agreed that her financial situation had been difficult and that she had not initiated the current proceedings. However, the situation of a commercial activity which had been generating a very high income, and even higher costs, did not automatically justify a full exemption from court fees. Moreover, the applicant had declared a net income for the first four months of 2011. In an extensively reasoned decision the domestic court concluded that the applicant should be expected to pay one third of the fees due for lodging an appeal against the payment order. 8. The applicant appealed against the decision of the court officer. She reiterated that her business had generated losses and that she had been financially dependent on her family. The applicant stressed that she had not instituted the civil proceedings, so could not prepare for their costs or limit the sum claimed. 9. On 3 August 2011 the Koszalin Regional Court upheld the decision of the court officer. The applicant was ordered to pay PLN 1,928 (EUR 500) within seven days. 10. On 22 August 2011 the applicant’s lawyer lodged a second request for exemption from the court fees. The applicant submitted that she had wound up her company’s activity as it had been operating at a loss. 11. On 26 August 2011 the court officer of the Koszalin District Court partly allowed the applicant’s request and exempted her from the court fees above PLN 1,000 (equivalent to EUR 250). The court took into account the applicant’s difficult financial situation but noted that the court fee should not have been regarded as less important than the other financial obligations that the applicant had been able to honour, in the amount of PLN 4,000 monthly. Having examined all the arguments relied on by the applicant, the court considered that the situation did not justify a total exemption from the court fees. The applicant did not appeal against this decision. 12. On 16 September 2011 the applicant was ordered to pay PLN 1,000 within seven days. 13. On 29 September 2011 the applicant lodged a third request for exemption from the court fees. She submitted that her financial situation had not improved and that she had no income whatsoever. Moreover her car broke down which generated further costs. 14. On 26 October 2011 the Koszalin Regional Court rejected the applicant’s appeal against the payment order of 2 May 2011 and rejected her third application for full exemption from the court fees as it had been substantially the same as the one lodged before and examined on 26 August 2011. 15. On 10 November 2011 the applicant appealed against the decision of 26 October 2011. She was ordered to pay a court fee of PLN 1,500 for pursuing her appeal. She requested the court to exempt her from that fee. 16. On 22 December 2011 the court partly granted her request. The applicant was ordered to pay a court fee in the amount of PLN 1,000. 17. On 30 March 2012 the Szczecin Court of Appeal rejected her appeal against the decision of 26 October 2011 for failure to pay the fee. The decision was delivered to the applicant on 10 April 2012. It appears that around that time the applicant took up employment. During that period the applicant unsuccessfully attempted to have the proceedings stayed. II. RELEVANT DOMESTIC LAW AND PRACTICE
18. The legal provisions applicable at the material time and questions of practice are set out in the judgment of Mogielnicki v. Poland, no. 42689/09, § 20-27, 15 September 2015. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
19. The applicant complained under Article 6 of the Convention that her right of access to a court had been breached as the courts had wrongly refused to allow her request for an exemption from the court fees in their entirety. The relevant part of Article 6 § 1 provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal established by law. ...”
20. The Government contested that argument. A. Admissibility
21. The Government raised a preliminary objection regarding non-exhaustion of domestic remedies in that the applicant had not appealed against the decision of 26 August 2011. The applicant contested the objections and argued that she had lodged several applications for exemption from court fees and had appealed against most of the first-instance decisions on that matter. She did not appeal against the decision of 26 August 2011 as she thought that she would be able to pay the fee of PLN 1,000. However, her financial situation further deteriorated thus she considered more appropriate to lodge another request for exemption of the court fees in their entirety. 22. The Court notes that the applicant lodged in total three requests for exemption from the court fees due for her appeal against the payment order of 2 May 2011. On 13 July and 26 August 2011 her requests were partly allowed. The third request of 29 September 2011 was rejected as the court considered that it was substantially the same as the two examined previously. The applicant appealed, unsuccessfully, against two of the above-mentioned decisions. Against that background, the Court concludes that the applicant did everything that could reasonably have been expected of her to exhaust the national channels of redress. Accordingly, it rejects the Government’s objection based on non-exhaustion of domestic remedies. 23. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
24. The applicant complained under Article 6 of the Convention that her right of access to a court had been breached as the courts had wrongly dismissed her requests for a full exemption from the court fees. The applicant submitted that, as a defendant in the proceedings, she had had no influence on the value of the claim and, accordingly, on the amount of fees due. Had she been totally exempted from the court fee, her appeal would certainly have been decided in her favour. However, the court fee imposed in her case had made accessing the court impossible for her. In consequence, the claimant had obtained a final payment order against her and had taken over her only property following successful enforcement. 25. The Government argued that the domestic courts had examined the applicant’s requests for exemption from court fees in a detailed manner. They had had regard to the fact that at that time the applicant had had a declared net income in an amount exceeding the fee after partial exemption. Moreover, the applicant had been able to honour her other financial obligations on time, in an amount four times higher, so the domestic authorities had rightly noted that importance should also be attached to the court fees. 26. The Government were of the view that the amount of PLN 1,000 which the applicant had had to pay as a reduced court fee could not be regarded as arbitrary or disproportionate. Nor should that fee be regarded as excessive since the reduction allowed by the courts amounted to over 80%. 2. The Court’s assessment
27. The Court first reiterates that it has found on several occasions that a court fee levied on parties to civil proceedings constitutes a restriction that can impair the very essence of the applicants’ right of access to a court as guaranteed by Article 6 § 1 of the Convention (see Kreuz v. Poland, no. 28249/95, § 60, ECHR 2001‐VI; Jedamski and Jedamska v. Poland, no. 73547/01, § 60, 26 July 2005; and Podbielski and PPU Polpure v. Poland, no. 39199/98, § 64, 26 July 2005). The Court considered in those cases, having regard to the principles established in its case‐law in respect of the right of access to a court, that the amount of the court fees assessed in the light of the circumstances of a given case, including the applicants’ ability to pay them and the phase of the proceedings at which that restriction was imposed on them, were factors which were material in the determination of whether or not a person had enjoyed his right of access to a court. 28. The Court will now determine whether, in the light of the above‐mentioned principles and in the particular circumstances of the present case, the required fee constituted a restriction that impaired the very essence of the applicant’s right of access to a court. 29. As regards the applicant’s ability to pay the court fee in the present case the Court notes that the domestic courts assessed the applicant’s financial standing and decided to exempt her partially from the court fee. In particular they established that although the applicant’s company had often been operating at loss, in the beginning of 2011, she had nevertheless declared a net income of PLN 5,000. They concluded that it had been possible for her to pay the reduced fee of PLN 1,000, equivalent of EUR 250. Since the applicant failed to pay the fee her appeal against the payment order of 2 May 2011 was rejected and she was asked to pay further court fees for challenging the rejection (see paragraphs 14-17 above). 30. The Court takes note of the fact that the domestic courts considered imposing a reduced fee (compare and contrast Kniat v. Poland, no. 71731/01, § 43, 26 July 2005). It further notes that the sum sought amounted to 20% of the sum originally requested from the applicant. However, it also considers that the authorities’ assessment of the applicant’s ability to pay the fee was based to a large extent on the net income declared by her for the first four months of 2011. The courts failed to attach sufficient importance to the fact that the applicant’s financial situation had subsequently deteriorated – she had wound up her company’s activity as it had been operating at a loss (see paragraph 10 above). The Court considers that the domestic authorities should have given more weight to the fact that she had no longer been generating any income and had other financial obligations which could have made even the payment of the reduced fee impossible. 31. The crucial element of the instant case, moreover, is the phase of the proceedings during which that restriction was imposed (see, among many other authorities, Kreuz, cited above, § 60). The applicant was not the party which initiated the proceedings in question; she was a defendant in summary proceedings initiated by a claimant who had set the value of the claim on which the amount of the fees depended. On 2 May 2011 the court issued a payment order against the applicant for a large sum of money based solely on the claimant’s request and on evidence submitted by her (see paragraph 5 above). The applicant sought access to a court to challenge that payment order and to have her arguments examined by the court for the first time. The fee imposed on her prevented her from accessing a court at that initial stage and led to the payment order of 2 May 2011 becoming final and enforceable. In consequence, her arguments that the bill of exchange had been illegal and the claim against her unfounded were not examined by a court at all. It does not appear that the domestic authorities gave a meaningful consideration to those facts. 32. Regard being had to above and in particular to the initial stage of the proceedings at which the restriction on access to a court had been imposed, the Court considers that the judicial authorities failed to secure a proper balance between, on the one hand, the interests of the State in collecting court fees for dealing with claims and, on the other hand, the interests of the applicant in having her case heard by a court. 33. There has accordingly been a violation of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
34. 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.”
A. Damage
35. The applicant claimed PLN 334,000 as just satisfaction in the present case, without specifying amounts corresponding to pecuniary and non-pecuniary damage. 36. The Government contested the claim. 37. The Court does not discern any causal link between the violation found and any pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 7,800 in respect of non-pecuniary damage. B. Costs and expenses
38. The applicant also claimed PLN 2,500, equivalent to EUR 580, for the costs and expenses incurred before the Court. 39. The Government contested the claim. 40. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the claimed sum in full. C. Default interest
41. 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,
1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 7,800 (seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 580 (five hundred eighty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata Degener Pere Pastor VilanovaDeputy RegistrarPresident