RECHUL v. POLAND - 69143/12 (Judgment : Right to a fair trial : First Section Committee) [2020] ECHR 539 (09 July 2020)

JUDGMENT STRASBOURG 9 July 2020 This judgment is final but it may be subject to editorial revision. In the case of Rechul v. Poland, The European Court of Human Rights (First Section), sitting as a Committee composed of: Linos-Alexandre Sicilianos, President, Krzysztof Wojtyczek, Armen Harutyunyan, judges, and Renata Degener, Deputy Section Registrar, Having deliberated in private on 16 June 2020, Delivers the following judgment, which was adopted on that date: 1. PROCEDURE 1. The case originated in an application (no. 69143/12 ) 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, Mr Sebastian Rechul (“the applicant”), on 2 October 2012. 2. The applicant was represented by Ms M. Jas-Baran, a lawyer practising in Wrocław. 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 9 January 2018 the Government were given notice of the complaint concerning Article 6 of the Convention and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1972 and lives in Żary. A. Proceedings before the Szamotuły District Court - refusal of exemption from paying court fees 5. In 2011 the applicant brought an action against the State Treasury seeking compensation for the damage he alleged to have suffered as a result of the conditions in Wronki Prison from January to June 2001. He sought an award of 10,000 Polish zlotys (PLN - approximately 2,500 euros (EUR)). In parallel, he asked the district court to exempt him from the payment of a court fee of PLN 500 (about EUR 125). In support of his claim, he submitted a declaration of means stating that he was unemployed, had no savings or valuables, and had debts for unpaid child support, as well as outstanding monthly bank loan payments. In addition, he informed the court that he had been detained from 2001 to September 2004 and that since 18 July 2009 he had been serving another prison sentence, to be completed in January 2013. 6. On 4 January 2012 the Szamotuły District Court ( Sąd Rejonowy ) dismissed the applicant’s request for exemption from payment of the court fee. The court reasoned that only persons with no savings capacity could claim exemption from the payment of court fees in their entirety and that the applicant did not fulfil that condition. The applicant should have put money aside to prepare his action in respect of the conditions of his imprisonment in 2001, especially considering that he had been at liberty from September 2004 to July 2009. 7. On 28 February 2012 the Poznań Regional Court ( Sąd Okręgowy ), ruling on the applicant’s interlocutory appeal, upheld that order and subscribed entirely to the reasoning of the court of first instance. The court also observed that the applicant had no expenses as the child support was being paid from a public fund on account of the applicant’s imprisonment. Moreover, the applicant was a healthy individual and could have secured a job during his time at liberty. He could have thus made the necessary savings to pay the PLN 500 court fee for the civil action he had been planning to lodge. 8. The applicant did not pay the required court fee. Consequently, on 17 May 2012 the district court, ruling under Article 130 § 2 of the Code of Civil Procedure (“CCP”), returned the applicant’s civil action. Accordingly, the proceedings in question had no legal effect and were considered, for all legal and practical purposes, to have never been instituted. B. Proceedings before Wrocław Regional Court - reimbursement of the costs of the winning party’s legal representation 9. In 2011 the applicant brought an action against the State Treasury, seeking compensation for the damage he alleged to have suffered as a result of his imprisonment in Wołów Prison from June 2001 to September 2004. He claimed PLN 80,000 (approximately EUR 20,000). In parallel, he asked the domestic court to exonerate him from the payment of all court fees. 10. On 8 February 2012 the Wrocław Regional Court granted that request and fully exempted the applicant from paying the legal costs of that procedure. 11. On 17 April 2012 the Regional Court dismissed the applicant’s action for compensation as time-barred and ordered him, pursuant to Article 98 § 1 CCP and Section 108 of the Law on court costs in civil matters (see “Relevant domestic law” section below), to pay PLN 3,600 (about EUR 900) for the lawyer from the State Attorney General’s office who had represented the winning party, that is, the defendant State Treasury. 12. The applicant appealed against that judgment, challenging the part of the decision relating to the payment of the defendant’s legal fees. To that end he submitted that the regional court had not taken his indigenous status into consideration. 13. On 12 July 2012 the Wrocław Court of Appeal ( Sąd Apelacyjny ), relying on Article 102 of the CPC and Section 108 of the Law of 28 July 2005 on legal costs in civil matters, dismissed the applicant’s interlocutory appeal. It considered that the applicant’s poor financial situation could not be regarded as an exceptional circumstance within the meaning of Article 102 of the CCP and, consequently, that it could not lead to the applicant’s exemption from the payment of the fees of the winning party’s lawyer. II. RELEVANT DOMESTIC LAW AND PRACTICE 14. Regulations on the payment of costs and court fees in civil proceedings, as well as on exonerations on account of a plaintiff’s indigenous status, have been set out in Buczek v. Poland , no. 31667/12 , §§ 13-16, 14 June 2016. 15. In addition, under Article 108 of the CCP, exemption from court fees does not automatically relieve the losing party of the obligation to pay the litigation costs of the winning party. These litigation costs include, among other things, expenses borne by the winning party for its legal representation. The general principle that the costs necessary for the proper conduct of the procedure are borne by the losing party is set out in Article 98 CCP. Under Article 102 of the CCP, a judge in a civil case has the discretion to order the losing party to pay only part of the above-mentioned costs of the litigation, or even to totally waive the costs, where exceptional circumstances so require. 16. On 12 June 2001 the Polish Constitutional Court made the following observation in that context (case no. P 13/01): “ ... the exemption from bearing the costs of the procedure, in particular costs other than court fees, cannot have an automatic nature, that is to say, it cannot create a situation in which the winning party would not have any claim to have his or her costs reimbursed.... Exonerating the losing party from any obligation to pay the costs of the proceedings, without the wining party having any possibility of having his or her costs reimbursed, amounts to a restriction of the right of access to a court.” 17. On 6 September 2001 the Constitutional Court held that the principle that a winning party of civil proceedings should have its litigation costs reimbursed and that the losing party should bear the costs of the proceedings was consistent with the principles of equality and equity (case no. P/3/01). . The fees for representation by lawyers appointed under the legal-aid scheme are set out in the Ordinance of the Minister of Justice of 28 September 2002 ( Rozporządzenie w sprawie opłat za czynności radców prawnych oraz ponoszenia przez Skarb Państwa kosztów pomocy prawnej udzielonej przez radcę prawnego ustanowionego z urzędu ). The fees depend on the value of the claim and they range between PLN 60 (approximately EUR 15) and PLN 7,200 (approximately EUR 1,800). 19. Under Article 130 § 2 of the CPC, a civil action returned to a party for failure to pay the relevant legal costs is without legal effect. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 20. Relying on Article 6 § 1 of the Convention, the applicant made a two-fold complaint alleging a breach of his right to a fair trial. Firstly, the applicant complained that his right to access to a court had been violated in that the domestic court refused to exempt him from the payment of the court fee required for the filing of his civil action concerning prison conditions in Wronki Prison. Secondly, the applicant complained that his right to a fair trial had been breached because during the proceedings concerning his action against Wołów Prison the court ordered him to pay the winning party’s litigation fees. The provision in question reads, in so far as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” A. Admissibility 21. 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. B. Merits 1. Submissions by the parties (a) The applicant 22. The applicant submitted that, due to his status of a formerly convicted person and the lack of any rehabilitation programme for people leaving prison, during his time at liberty he had been unable to obtain sufficiently well-paid employment that would have enabled him to make savings for the purpose of his litigation against the State. The short-term contracts which he had secured whilst at liberty had been very precarious. The applicant had thus lived below the poverty line. The applicant also noted that despite serious attempts, he had not succeeded in getting a paid job in prison. 23. The applicant also submitted that the compensation he had sought in each set of the impugned proceedings had been reasonable considering, on the one hand, the weight of his grievances and the length of his suffering, and on the other hand, the average salary in Poland. 24. Moreover, specifically in respect of the second set of the proceedings, the applicant challenged the amount of the winning party’s litigation costs, explaining that since the case had been resolved on a procedural matter of statutory prescription, the lawyer for the defendant had not put any considerable amount of work into the respondent party’s defence. It was unfair for the domestic court to disregard the applicant’s precarious situation and to order him to reimburse the winning party. To that end, the applicant submitted that since he had left prison he had not been entitled to obtain any paid employment as he had acquired the status of a caregiver to his elderly mother under a monthly allowance of PLN 520 (approximately EUR 130). He was thus still living below the poverty line, getting his clothing and food from social care organisations. (b) The Government 25. The Government argued that the right to access to a court enshrined in Article 6 of the Convention was not absolute and that requiring a party to civil proceedings to pay court fees and litigation costs was not as such in breach of that provision. 26. In respect of the first set of the impugned proceedings, the Government commented that the applicant had had his application for a court fees exemption thoroughly examined by the domestic courts. The decision not to waive the fee, which was equal to 5% of the value of his claim and amounted to PLN 500, had been justified and had not hindered the applicant’s access to a court. In particular, the applicant, who had been at liberty for five years prior to lodging his civil action, could have saved up the money necessary for the litigation which he had been preparing. Moreover, returning the applicant’s civil action had not deprived him of access to a court. The applicant could have followed up with a new civil action, seeking more reasonable compensation for which the court fee would have been smaller. 27. In respect of the second set of proceedings, the Government firstly observed that the applicant had his case examined by the civil court. His access to a court had therefore not been hindered. In so far as this part of the application could raise an issue in a broader context of a fair trial, the Government submitted that the costs of the winning party’s legal representation which the applicant had been made to bear, had not been excessive if compared to the value of the applicant’s claim. The defendant State Treasury’s legal representation had also been warranted in the circumstances of the case as the plaintiff’s claim could only be considered statute-barred if an objection to that effect had been raised. Lastly, the Government submitted that the domestic court had considered the possibility of the application of Article 102 of the CCP but had decided that no special circumstances had arisen in the applicant’s case to justify any type of waiver from the litigation costs. 2. The Court’s assessment 28. Article 6 § 1 embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before a court in civil matters, constitutes one aspect. 29. However, this right is not absolute, it may be subject to limitations. The Court has ruled that, guaranteeing litigants an effective right of access to courts for the determination of their “civil rights and obligations”, Article 6 § 1 leaves the State a free choice of the means to be used towards this end but, while the Contracting States enjoy a certain margin of appreciation in that respect, the final decision as to the observance of the Convention’s requirements rests with the Court (see, Kreuz v. Poland , no. 28249/95 , § 53, ECHR 2001 ‑ VI; and Podbielski and PPU Polpure v. Poland , no. 39199/98 , 26 July 2005). 30. The Court must therefore be satisfied that the limitations applied do not restrict or reduce the access afforded to the individual in such a way or to such an extent that the very essence of that right is impaired (see, Kreuz v. Poland , cited above, § 58). 31. 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 or her right of access and had “a ... hearing by [a] tribunal” ( Jedamski and Jedamska v. Poland , no. 73547/01 , § 60, 26 July 2005). 32. The Court has also held that the issues linked to the determination of litigation costs can be of relevance for the assessment as to whether the proceedings in a civil case seen as a whole have complied with the requirements of fairness under Article 6 § 1 of the Convention (see, mutatis mutandis , Robins v. the United Kingdom , 23 September 1997, § 29, Reports of Judgments and Decisions 1997 ‑ V; Macková v. Slovakia , no. 51543/99 , § 55, 29 March 2005; Stankiewicz v. Poland , no. 46917/99 , § 60, ECHR 2006‑VI; and Piętka v. Poland , no. 34216/07 , § 58, 16 October 2012). 33. Turning to the present case, the Court firstly notes that both of the civil actions lodged by the applicant prisoner concerned the protection of his personal rights in relation to prison conditions in two different detention facilities. 34. In the first set of the impugned proceedings the applicant sought compensation which amounted to approximately EUR 2,500. The court fee which he was required to pay was determined as a fraction of the value of the claim and thus amounted to approximately EUR 125. 35. The applicant provided the domestic court with a detailed declaration of means and asked for exemption from the court fee on account of his documented indigenous status. 36. The domestic court of first-instance decided not to waive or to reduce the fee, having reasoned that the fee was relatively small and the applicant could have made savings while he had been at liberty. Ultimately, the court returned the applicant’s action for the latter’s failure to make the payment. The applicant did not therefore have his action examined. 37. In the second set of the impugned proceedings, the domestic court has examined the applicant’s action and dismissed it as time-barred. That court had exonerated the applicant from the court fee but ultimately ordered him to reimburse the costs of the lawyer of the respondent winning party. Those costs which, under the law, are calculated against the value of the applicant’s claim, amounted to approximately EUR 900. 38. The Court reiterates that a claim submitted to a tribunal for determination must be presumed to be genuine and serious unless there are clear indications to the contrary which might warrant the conclusion that the claim is frivolous or vexatious or otherwise lacking in foundation (see Rolf Gustafson v. Sweden , judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, § 38). 39. As to the first set of the impugned proceedings, the Court finds that the dispute in question was “genuine and serious” within the meaning of the Court’s case-law (see Kaukonen v. Finland , no. 24738/94 , Commission decision of 8 December 1997). 40. In view of the weight of the applicant’s grievances and the duration of the alleged suffering, his compensation claim does not appear grossly exaggerated and unrealistic (contrast, Zelcer v. Poland (dec.), no. 38774/05 , 5 July 2011 and, mutatis mutandis , Kupiec v. Poland , no. 16828/02 , §§ 6 and 47, 3 February 2009). 41. The applicant prisoner’s (in)ability to pay the court fee in the first set of the impugned proceedings was not assessed in view of his real financial situation, but only against a hypothetical conjecture that when he had been at liberty he could and ought to have been able to make savings to prepare his litigation against the prison (see, mutatis mutandis , Jedamski and Jedamska, cited above, §§ 62 and 63). The applicant’s actual and uncontested precarious situation, due to the lack of decent employment when he had been at liberty, which in the Court’s view could reasonably be explained, as the applicant claims, by his criminal record, was not at all taken into consideration by the domestic court. 42. Moreover, the domestic court could have but did not opt for a partial exemption from the court fee (contrast, Buczek v. Poland , no. 31667/12 , § 29, 14 June 2016, and Grabowski v. Poland , no. 57722/12 , § 31, 30 June 2015). 43. Another important feature of the case at hand is that within the same time frame, another civil court (see the second set of the proceedings in question) had acknowledged the applicant’s indigenous status and had granted him a full exemption from court fees (see paragraph 8 above; compare mutatis mutandis with Wersel v. Poland , no. 30358/04 , § 46, 13 September 2011). 44. Lastly, the Court notes that the refusal to waive the court fee occurred before the first-instance court and resulted in the applicant’s action not being examined by a tribunal (compare, mutatis mutandis , with Zelcer v. Poland (dec.), no. 38774/05 , 5 July 2011). 45. As to the second set of the impugned proceedings, the Court observes that the court fee or the applicant’s access to a court as such, are not at issue here. However, the Court reiterates that there may also be situations in which issues linked to the determination of litigation or court costs can be of relevance for the assessment of whether the proceedings in a civil case seen as a whole have complied with the requirements of fairness under Article 6 § 1 of the Convention (see, paragraphs 31 and 32 above; and mutatis mutandis , Piętka, cited above, § 58 ). 46. The Court accepts that the principle of financial responsibility for bringing an unsuccessful civil action, in other words, requiring a plaintiff to bear the litigation expenses of the winning respondent party, does not, in and of itself, go against the principles of equality, equity, and overall fairness. The Court also agrees with the Polish Constitutional Court that an exemption from court fees does not need to have an automatic effect of depriving the winning party of a possibility of having his or her costs reimbursed. Such regulation could in fact lead to a breach of that party’s Article 6 rights (see, mutatis mutandis , Stankiewicz, cited above). Lastly, the Court takes note of the existence of a legal framework which provides for an opportunity to have such litigation costs reduced or waived by a court taking account of the parties’ conduct, the character of the proceedings or the considerations of social policy. 47. Moreover, turning to the facts of the present case, the Court cannot take issue with the way in which that legal framework was applied, namely, with the domestic court’s conclusion that the applicant’s indigenous status did not constitute “an exceptional circumstance” within the meaning of Article 102 of the CCP and did not entail an exemption from the obligation to reimburse the winning party’s litigation costs. 48. The Court has serious doubts that the dispute in question was “genuine and serious”, as the applicant’s action was obviously time-barred. Moreover, the fee imposed on the applicant was not disproportionate, considering that it aimed at deterring him from bringing another frivolous action. 49. Overall, the Court considers that whereas the applicant could have legitimately expected to be exempted, at least partly, from the payment of court fee in the first set of the proceedings in question (contrast, mutatis mutandis , Kupiec , cited above, § 47; Rylski v. Poland , no. 24706/02 , § 84, 4 July 2006; and Kuczera v. Poland , no. 275/02 , § 45, 14 September 2010), this was not the case with regard to the requirement to reimburse the winning party’s litigation costs in the second set of the impugned proceedings. The Court thus find that the decision of the domestic court in the first set of the proceedings in question constituted a restriction that impaired the very essence of the applicant’s right of access to a court. 50. It is on this ground therefore that there has been a violation of Article 6 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 51. 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 52. The applicant claimed 22,500 euros (EUR) in respect of pecuniary damage, comprising the costs of his psychological treatment which he did not document. 53. The Government submitted that the applicant’s claims for just satisfaction were unjustified. In particular, the costs of the alleged psychological treatment were not documented. 54. The Court notes that the costs of psychological treatment claimed by the applicant are undocumented. As such, they cannot be taken into consideration for the Court’s assessment of the award of pecuniary damage. The Court therefore rejects the applicant’s claim for pecuniary damage. On the other hand, it awards the applicant the requested sum of EUR 1,250 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 55. The applicant also claimed EUR 975 for costs and expenses incurred before the Court, comprising translation costs, the fees of the applicant’s lawyer, and expenses for correspondence. Attached to the claim are: invoice no. 00001/06/2018 issued by a translator on 1 June 2018 for the amount of PLN 450 (approximately EUR 112), and two invoices from the applicant’s lawyer dated 13 and 25 June 2018, for the total amount of PLN 2,000.80 (approximately EUR 500). 56. The Government pointed out that the applicant had only documented, and thus justified, a part of his claim for costs and expenses. 57. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the fact that the Court found the violation of Article 6 in relation to the first set of the proceedings, only (see paragraphs 51 and 52 above), to the documents in the Court’s possession and to the above criteria, the Court considers it reasonable to award the sum of EUR 612 for the proceedings before this Court, plus any tax that may be chargeable to the applicant. C. Default interest 58. 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 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 1,250 (one thousand two hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 612 (six hundred and twelve euros), plus any tax that may be chargeable, 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 9 July 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata Degener Linos-Alexandre Sicilianos Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII