European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 40232/03
by Marianna PRZYBOROWSKA
against Poland

The European Court of Human Rights (Fourth Section), sitting on 1 July 2008 as a Chamber composed of:

Giovanni Bonello, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 10 December 2003,

Having regard to the Court’s decision to examine the admissibility and merits of the case (Article 29 § 3 of the Convention),

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Marianna Przyborowska, is a Polish national who was born in 1923 and lives in Ostrołęka, Poland.

A.  The circumstances of the case

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

In 1999 the applicant donated land for a planned construction of a Catholic church in her city. She subsequently wished to revoke her donation.

On 21 January 2000 she lodged a claim with the Ostrołęka Regional Court for annulment of a notary’s deed concerning the donation in question. The applicant was exempted from court fees in the first and second instance proceedings.

On 6 April 2001 the court gave judgment and declared the notary’s deed null and void.

The respondent appealed.

On 7 April 2003 the Białystok Court of Appeal amended the first instance judgment and dismissed the applicant’s claim.

The applicant’s lawyer filed a cassation appeal in her name.

On 15 July 2003 the Court of Appeal ordered her to pay PLN 100,000 [EUR 25,000] in court fees for lodging a cassation appeal failing which it would reject the appeal. This decision was served on the applicant’s lawyer on 17 July 2003.

On 23 July 2003 the applicant asked to be exempted from court fees. She submitted that her only income was a family disability pension. She had no real property. In addition, during the first and second instance proceedings the applicant had been exempted from court fees in view of her difficult financial situation. The sum of PLN 100,000 required from her was extremely high and out of any proportion to her standard of living.

On 29 July 2003 the Białystok Court of Appeal rejected the applicant’s cassation appeal. The court held that the applicant had failed to pay the required court fees for the cassation proceedings. In addition, her claim for an exemption from court fees had been lodged on 25 July 2003, that is, after the seven days time limit had expired.

The applicant filed an interlocutory appeal against this decision. On 28 August 2003 the Court of Appeal ordered her to pay PLN 20,000 [EUR 5,000] in court fees for an interlocutory appeal.

On 2 September 2003 the applicant asked to be exempted from court fees. She claimed that she had already demonstrated that her financial situation was bad and that it had not changed.

On 4 September 2003 the court ordered the applicant to submit a statement concerning her financial situation. In reply, she stressed that nothing had changed as regards her financial status and that she was still badly off.

On 16 September 2003 the Białystok Court of Appeal dismissed the applicant’s claim for an exemption from court fees. It appears that this decision did not contain any reasons. The court ordered the applicant to pay PLN 20,000, failing which her interlocutory appeal would be rejected.

On 30 September 2003 the Court of Appeal rejected the applicant’s interlocutory appeal against this decision.

As she failed to pay the fees, on 17 October 2003 the Court of Appeal rejected the applicant’s interlocutory appeal against the decision of 29 July 2003.

B.  Events that took place after the case was communicated

On 27 November 2006 the Registrar sent a letter to the applicant, informing her that the President of the Fourth Section of the Court had decided to give notice of her application to the Polish Government.

On 5 March 2007 the Government submitted their written observations on the admissibility and merits of the application. On 11 April 2007 the applicant was invited to file any written observations in reply to those of the Government by 23 May 2007.

The applicant did not comply with the time-limit fixed for the submission of her observations. Nor did she ask the Court for an extension of that time-limit.

On 16 October 2007 the Registry sent another letter to the applicant by registered post. She was asked to explain her failure to observe the procedure fixed in the case and was informed that the Court might conclude that the applicant no longer intended to pursue her application. The applicant failed to reply. No acknowledgement of receipt was returned to the Registry. The applicant has not to date resumed correspondence with the Court.

COMPLAINTS

THE LAW

The applicant raised several complaints, under Article 6 of the Convention, regarding her right of access to a court and the fairness of the proceedings.

The respondent Government invited the Court to reject the application as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

However, the Court, having regard to the events that occurred after the notice of the application had been given to the Polish Government and after they had submitted their observations on the admissibility and merits of the case, considers that it does not have to deal further with the present application and that Article 37 § 1 of the Convention should be applied. That provision, in its relevant part, reads:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application; ...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court notes that the applicant failed to submit within the time-limit her reply to the observations filed by the respondent Government on 5 March 2007. The applicant also failed to respond to a further letter of the Registry of the Court sent by registered mail on 16 October 2007, requesting confirmation before 31 October 2007 as to whether she wished to maintain her application.

In the circumstances, the Court concludes that the applicant does not intend to pursue her application and that it is no longer justified to continue the examination of his case. Furthermore, the Court finds no reasons, as defined in Article 37 § 1 in fine, that would require it to continue the proceedings by virtue of that provision.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Fatoş Aracı Giovanni Bonello
Deputy Registrar President