by Bogdan PONICHTERA
The European Court of Human Rights (Fourth Section), sitting on 29 September 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 22 October 2003,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
The applicant, Mr Bogdan Ponichtera, is a Polish national who was born in 1962 and lives in Lubrza. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 November 2002 the applicant lodged a claim for compensation against a certain company, his former business partner, with the Opole Regional Court (Sąd Okręgowy). He sought compensation in the amount of EUR 65,650 for some unfair competition practices on the part of the defendant. He also applied for an exemption from court fees and enclosed with the claim his tax returns for the years 1994-2000 and submitted that the unfair competition practices on the part of his business partner had driven him to “complete financial ruin”. The fee in question amounted to approximately EUR 3,676.
On 11 December 2002 the Opole Regional Court dismissed the applicant’s request for exemption from court fees. The court established that the applicant had a wife and two daughters and that their income derived from the applicant’s wife’s disability allowance and her own small business and amounted to approximately EUR 300 monthly. At the relevant time the applicant was unemployed and out of business. He owned a car produced in 1989, whose value was estimated at about 1,000 Polish zlotys (PLN approximately EUR 250 at the relevant time) and a partly renovated detached house. The court also found that the applicant’s claim arose in 2000, so he had had enough time to raise the necessary funds in order to assert his rights. Additionally, the court established that the applicant had sold his former house in March 2001 for the sum of approximately EUR 88,000 and that his business had been highly profitable until 2001.
On 24 December 2002 the applicant lodged an interlocutory appeal. Referring to the court’s argument that he had run a profitable business, he submitted that the business had indeed been profitable in the years 1994 1999. From 2000 onwards the business had begun making losses, largely as a result of the defendant’s unfair practices. As regards the assets that, according to the Regional Court, the applicant should have had after selling his house, he submitted that all the money received for the house had been spent on repaying loans and purchasing another, smaller house. The applicant also submitted that he had had to sell the house in order to pay outstanding debts to his business partners, because he had suddenly been left without revenue and still had debts to pay off. In his interlocutory appeal the applicant also complained that the refusal to grant him the exemption requested amounted to a restriction of his access to court, contrary to Article 6 of the European Convention. Finally he submitted that the exemption was to be a provisional measure and that the final settlement of court fees could be provided for in the court’s judgment.
On 31 January 2003 the Wrocław Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s interlocutory appeal. The court reiterated the argument that the applicant had sold his house and that in 2001 he had had money in cash to pay the court fees. Finally the court held that “the applicant’s declaration of means did not provide grounds for an objective assessment of the situation, because he submitted that three members of his family were living off his wife’s income in the amount of PLN 600” (approximately EUR 150).
Subsequently the applicant was requested to rectify the procedural shortcomings of his claim by paying the court fees, which he failed to do.
On 22 April 2003 the Opole Regional Court returned the statement of claim to the applicant. This decision was sent to the applicant on 24 June 2003.
B. Relevant domestic law and practice
The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also the judgment delivered by the Court on 26 July 2005 in the case of Jedamski and Jedamska v. Poland, no. 73547/01, §§ 29-39).
The applicant complained under Article 6 § 1 of the Convention that, on account of the excessive court fees required from him for proceeding with his claim, he had been deprived of access to a court for the determination of his civil rights.
On 11 May 2009 the Court received the following declaration from the Government:
“I, Jakub Wołąsiewicz, Agent of the Polish Government, declare that the Government of Poland offer to pay PLN 10,000 (ten thousand Polish zlotys) to Mr Bogdan Ponichtera with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
On 17 July 2009 the Court received the following declaration from the applicant:
“I, Bogdan Ponichtera, note that the Government of Poland offer to pay me the sum of PLN 10,000 (ten thousand Polish zlotys) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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. The payment will constitute the final resolution of the case.
Having consulted my client, I would inform you that he accepts the proposal and waives any further claims against Poland in respect of the facts giving rise to this application. He declares that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Lawrence Early Nicolas Bratza