by Irena STALL
The European Court of Human Rights (Fourth Section), sitting on 10 March 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 17 January 2006,
Having regard to the declaration submitted by the respondent Government on 8 December 2008 requesting the Court to strike the application out of the list of cases and the applicant's reply to that declaration,
Having deliberated, decides as follows:
The applicant, Ms Irena Stall, is a Polish national who was born in 1961 and lives in Jelenia Góra. 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 23 June 2004 the applicant filed a claim with the Jelenia Góra Regional Court seeking the annulment of a donation deed executed between the applicant's ex-husband and M.S. (his current wife) in so far as it affected her in respect of enforcement proceedings she had instituted against him. She also sought exemption from court fees, claiming to be indigent. She submitted that she owned an apartment and that her sole source of income was her net monthly salary of PLN 1,240 (approximately EUR 310). Furthermore, the applicant stated that her salary was, in practice, used to support two people, the applicant herself and her daughter, who studied in another city, which meant additional costs. She further submitted that her daughter had asthma and required permanent medical assistance. Lastly, she submitted that she had a bank loan in the amount of PLN 6,000 (approximately EUR 1,500).
On 22 September 2004 the Jelenia Góra Regional Court dismissed the applicant's request, stating that the applicant could in fact, afford the court fees because she had a permanent source of income and, above all, because, she owned an apartment, which in principle ruled out exemption from court fees. Lastly, the court observed that she had claims against her former husband and the municipality of Jelenia Góra to the total tune of PLN 130,000 (approximately EUR 32,000).
The applicant lodged an interlocutory appeal against that decision. She submitted, inter alia, that the enforcement proceedings against her ex-husband had so far been unsuccessful as he had donated all his property to his current wife; hence the need for the relevant proceedings to annul the above donation. As to her claims against the municipality of Jelenia Góra, the applicant submitted that she currently had no means to institute the relevant proceedings.
On 29 December 2004 the Wrocław Court of Appeal dismissed the applicant's interlocutory appeal stating that she had failed to prove her lack of credit-worthiness and, in particular, that she could have mortgaged her apartment.
On 21 February 2005 the applicant again requested the court to exempt her from the court fees. She submitted an attestation from a bank confirming her poor credit-rating.
On 23 February 2005 the Jelenia Góra Regional Court dismissed the applicant's request stating that she had only submitted an attestation from one bank and the possibility could not be excluded that she would be granted credit elsewhere. The court also argued that the applicant was not using the whole apartment and could therefore rent part of it.
The applicant lodged an interlocutory appeal against that decision.
On 29 March 2005 the Wrocław Court of Appeal upheld the decision of the first-instance court.
On 18 May 2005 the Jelenia Góra Regional Court returned the applicant's statement of claim since she had not paid the fees in question. The applicant appealed unsuccessfully against that decision.
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 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 her in order to bring her claim, she had been deprived of access to a court for the determination of her civil rights.
The applicant complained about being deprived of access to a court on account of the excessive court fees. She relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal...”
By letter dated 8 December 2008 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application.
They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“... the Government herby wish to express – by way of unilateral declaration – its acknowledgement of the violation of the access to a court due to the refusal to exempt of the court fees.
Consequently, the Government are prepared to accept the applicant's claims for non-pecuniary damage to a maximum of EUR 4,500...
The Government would suggest that the above declaration might be accepted by the Court as 'any other reason' justifying the striking out of the case of the Court's list of cases, as referred to in Article 37 § 1 (c) of the Convention...
The Government take notice of criteria emerging from the Court's case-law as to when it is appropriate to decide to strike out the application with reference to Article 37 § 1 (c) on the basis of the unilateral declaration made by the Government even if the applicant wishes the examination of the case to be continued...
In the first place the Court requires that the facts should not be in dispute between the parties. As it results the Government have never contested the facts of the case.
Secondly, the Court demands an admission of responsibility or liability for the alleged violation of the Convention. The government's unilateral declaration as presented above contains an unconditional acknowledgement that the violation of the right of access to the Court occurred in the present case.
Eventually, the Court takes into consideration the manner in which the Government intend to provide redress to the applicant. As transpires from the Government's unilateral declaration the Government accepted paying to the applicant as compensation for her non-pecuniary damage up to a maximum EUR 4,500 in the event of the Court's striking the case out of its list.
Consequently, the Government are of the opinion that the circumstances of the above application may lead to the conclusion set out in sub-paragraph (c) of Article 37 § 1 of the Convention, thus that it is no longer justified to continue the examination of the application in the light of the Government's unilateral declaration.”
In a letter of 31 December 2008 the applicant expressed the view that the sum mentioned in the Government's declaration was unacceptably low.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases brought against Poland, its practice concerning complaints about lack of access to a court on account of excessive court fees (see cases Kreuz v. Poland no. 28249/95, ECHR 2001 VI, Podbielski and PPU Polpure v. Poland, no. 39199/98, 26 July 2005, Jedamski and Jedamska v. Poland, no. 73547/01, 26 July 2005 and Kniat v. Poland, no. 71731/01, 26 July 2005).
Having regard to the nature of the admissions contained in the Government's declaration, as well as the amount of compensation proposed (4,500 euros) – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government's declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Lawrence Early Nicolas Bratza