FOURTH SECTION
CASE OF PIĘTKA
v. POLAND
(Application no. 34216/07)
JUDGMENT
STRASBOURG
16 October 2012
This judgment will become
final in the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Piętka v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
David Thór Björgvinsson, President,
Lech Garlicki,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 25 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
34216/07) against the Republic of Poland lodged with the Court on 31 July
2007 under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Krzysztof
Piętka.
The applicant was represented by Mr S. Waliduda,
a lawyer practising in Wrocław. The Polish Government (“the Government”)
were represented by their Agent, Mr J. Wołąsiewicz, succeeded
by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
The applicant alleged that his right to a fair
hearing had been breached.
On 18 April 2011 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant lives in Wrocław.
On 2 April
2002 the applicant, together with A.Ł. - his partner in his commercial
partnership (spółka cywilna) - brought a joint action before the Wrocław Regional Court against a certain G.P. for payment of 237,739 Polish zlotys
(PLN) with statutory interest. He requested exemption from court fees.
In the statement of claim he gave his permanent address and another address
specified for service of court correspondence.
By an order of 6 May 2002 the court ordered that
the statement of claim be served on G.P.
On 21 May 2002 G.P., represented by a privately-hired
lawyer, replied to the claim. That reply was sent to the applicant’s address
for service of correspondence.
On 22 May 2002 the applicant moved out of his
permanent address.
On 5 June 2002 the court requested the
plaintiffs to submit additional information in respect of their request for
exemption from court fees. The summons was sent to the applicant’s permanent
address, but it was not served on him as he was no longer living at that
address. The summons was sent to the co-plaintiff’s permanent address and
was served on him on 10 June 2002.
On 5 July 2002 the court refused to grant an
exemption as the plaintiffs had failed to submit the necessary information.
This decision was sent to the applicant’s permanent address. It was not served
on him as he was no longer living there.
On 12 July 2002 that decision was served on the
applicant’s co-plaintiff.
On 2 August
2002 the court summoned the plaintiffs to pay PLN 13,486 in court fees and
set a time-limit of 14 days for payment. The summons was sent to the applicant’s
address for correspondence as indicated in his statement of claim and was
served on him on 12 August 2002.
On 29 October
2002 the applicant informed the court that he had never been served with the
decision of 5 June 2002 (see paragraph 10 above) refusing him an exemption
from court fees.
The court served the decision on the applicant
on 5 November 2002.
By a letter of 8 November 2002, received by the
court on 12 November 2002, the plaintiffs informed the court that they
wished to withdraw their claim as the court had refused to grant them an
exemption from court fees. They further referred to the fact that the defendant
had left Poland. Even if they obtained a judgment in their favour, it would be
very difficult to obtain its effective enforcement against her.
Subsequently, on 2 December 2002, the applicant
and his co-plaintiff were ordered to pay legal fees incurred by the
defendant in the amount of PLN 24,015.
On 13 December 2002 the applicant and his
co-plaintiff appealed against this decision. Their appeal was dismissed by the
Wrocław Court of Appeal on 21 February 2003. On an unspecified date the
applicant paid half of the legal costs incurred by the defendant, in the amount
of PLN 12,007.
Subsequently, the applicant and the co-plaintiff
claimed compensation from the State Treasury. They submitted that the Wrocław Regional Court had breached Article 124 of the Code of Civil Procedure by
setting the civil proceedings in motion despite the fact that their request for
an exemption from court fees had not been decided at that time. The court had
wrongly and unlawfully served the statement of claim on the defendant before
the issue of exemption from the court fees had been decided. The defendant,
relying on that service and assuming that there had been no impediment to
proceeding with the case at that time, had incurred legal costs. The court had
also failed to serve the refusal of exemption on the applicant properly,
despite the fact that the applicant had already informed it of his address for
service of judicial correspondence in his statement of claim. When this
decision was ultimately served on them, the plaintiffs decided to withdraw
their claim. Nonetheless, they had been obliged to pay in full the legal costs
borne by the defendant.
Subsequently, during the same proceedings
concerning his compensation claim, the applicant was heard by the Wrocław
District Court. He stated that he was a businessman earning an average monthly
income of PLN 10,000.
By a judgment of 19 May 2006 the Wrocław
District Court dismissed the claim. It found that the decision to serve the
statement of claim on the defendant was in breach of Article 124 of the Code of
Civil Procedure. It further acknowledged that the plaintiffs had sustained
damage as they had to reimburse the costs borne by the defendant.
However, the court was of the view that the plaintiffs had
failed to show that the damage had been caused exclusively by the court’s
procedural error in serving the summons. In their pleadings withdrawing their
claim they had referred not only to the refusal of exemption but also to the
fact that the defendant had left the country. Moreover, the plaintiffs had been
obliged to pay the defendant’s costs not because the court had refused to grant
them an exemption, but because they had withdrawn their claim. They had
therefore failed to show the existence of a normal causal link (normalny
związek przyczynowy) between the acts of the State Treasury,
represented by the court, and the uncontested damage which they had suffered.
The applicant and his co-plaintiff appealed
against that decision, arguing that their obligation to reimburse the defendant’s
costs had arisen essentially because their statement of claim had been
incorrectly served on the defendant. They had thereby been drawn into the
litigation unlawfully and despite the fact that they had already requested
exemption from the court fees in their statement of claim.
A hearing in the case was held on 3 January
2007. The applicant attended the hearing. The court informed him that the
judgment on the merits of the case would be given on 16 January 2007.
By a judgment of 16 January 2007 the Wrocław Regional Court dismissed the claim, essentially sharing the conclusions of the
lower court. The court read out the operative part of the judgment, giving a
brief verbal explanation of the reasons for that judgment.
On 18 January 2007 the applicant and the
co-plaintiff requested the court to prepare written grounds for the judgment.
The written grounds, comprising the facts of the
case as established by the court and summarising the legal reasoning of both
the first- and second-instance courts, were served on them on 26 February
2007.
II. RELEVANT DOMESTIC LAW
Article 124 of the Code of Civil Procedure, as
applicable at the relevant time, reads, in so far as relevant:
“Submission of a request for exemption from court fees ...
shall not result in the proceedings being stayed, save for cases where such a
request has been lodged together with a statement of claim or before such a
statement has been lodged with a court.”
Section 16 (1) of the 1967 Court Fees Act,
applicable at the material time, provided:
“ A court shall not take any procedural measures following an
application for which the relevant court fee has not been paid. The president
shall summon the party to pay that fee within a seven-day time limit, on pain
of the application being returned. If the fee has not been paid, the president
shall return the application.”
Article 325 of the Code of Civil Procedure
specifies which constituents the operative part of a judgment (sentencja)
must contain. It lists the following: the name of the court, those of the
parties, the judges, the court clerk and the prosecutor (provided that the
last-named was a party to the case), the date and name of the town, matter in
dispute and the substance of the decision (rozstrzygnięcie sądu o
żądaniach stron).
Under Article 326 § 3 of that Code,
the president of a judicial panel reads out the operative part of the judgment in
open court. Afterwards the president or judge rapporteur orally explains the
main grounds for the decision (podaje ustnie zasadnicze powody
rozstrzygnięcia).
Pursuant to Article 328 of the Code, written
grounds for a judicial decision shall be prepared at a party’s request
submitted within one week from the date of the delivery. Written grounds must
consist of a summary of the facts established by the court, refer to the
evidence relied on by the court, indicate the reasons why the court considered
that evidence to be credible and give legal reasons for the decision adopted.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicant
complained that the order to reimburse legal costs incurred by his opponent was
in breach of his right to a fair hearing as guaranteed by Article 6 of the
Convention. This provision, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Admissibility
1. No significant disadvantage
The Government first submitted that the
applicant could not be said to have suffered a significant disadvantage within the
meaning of Article 35 § 3 (b) of the Convention. The applicant had
requested exemption from the court fees even though his financial situation was
such that he had been able to pay and had ultimately paid the legal fees
incurred by the defendant as ordered by the court.
They acknowledged that the Wrocław Regional
Court had erred in law in that it had served the applicant’s statement of
claim on the defendant before deciding on the exemption from the court fees.
However, the domestic courts had subsequently held that there had been no
causal link between that error and the damage sustained by the applicant. The
Government concluded that this indicated that the applicant had not suffered
any disadvantage as a result of the alleged violation of the Convention.
The applicant disagreed.
The Court notes that the main element of the
criterion set by Article 35 § 3 (b) of the Convention is
whether the applicant has suffered any significant disadvantage (see Adrian Mihai Ionescu
v. Romania (dec.), no. 36659/04,
1 June 2010, and Korolev
v. Russia (dec.), no. 25551/05,
1 July 2010). Inspired by the general principle of de
minimis non curat praetor, this admissibility criterion is based on
the idea that a violation of a right, however real from a purely legal point of
view, should attain a minimum level of severity to warrant consideration by an
international court. The assessment of this minimum level is, in the
nature of things, relative, and depends on all the circumstances of the case.
The severity of a violation should be assessed taking into account both the
applicant’s subjective perceptions and what is objectively at stake in a
particular case (see Korolev,
cited above). In other words, the absence of any significant disadvantage can be based on criteria such as the financial
impact of the matter in dispute or the importance of the case for the applicant
(see Adrian Mihai Ionescu,
cited above).
The Court reiterates in this connection that it
has previously considered insignificant the pecuniary loss of EUR 90
allegedly sustained by the applicant in the case of Adrian Mihai Ionescu
(cited above), and
has found negligible the
pecuniary loss of EUR 0.50, allegedly sustained by the applicant in the
case of Korolev
(cited above). Similarly, the Court held that the criterion of insignificant
disadvantage was not met in cases concerning a delayed payment of EUR 25 (Gaftoniuc
v. Romania, (dec.) no. 30934/05, 22 February 2011); failure
to reimburse EUR 125 (Ştefănescu v. Romania (dec.), no. 11774/04, 12 April 2011); failure by the State authorities to pay
the applicant EUR 12 (Fedotov v. Romania (dec.), no. 51838/07,
24 May 2011; failure by the State authorities to pay the applicant
EUR 107 plus costs and expenses of EUR 121, totalling EUR 228 at
stake (Burdov v. Moldova (dec.), no. 38875/08, 14 June
2011); and a case where the amount of pecuniary damages claimed by the
applicant at issue was EUR 504 (Kiousi v. Greece (dec.), no. 52036/09, 20 September 2011). Likewise, the Court rejected
a case where the initial claim of EUR 99 made by the applicant
against his lawyer was considered in addition to the fact that he had been
awarded by the domestic authorities the equivalent of EUR 1,515 for the
length of the proceedings (Havelka v. the Czech Republic (dec.),
no. 7332/10, 20 September 2011).
In the present case, the applicant tried to
institute civil proceedings to reclaim an amount of approximately PLN 238,000,
but to no avail as he ultimately withdrew his statement of claim following the
court’s refusal to grant him an exemption from the payment of the court fees.
Ultimately, the court ordered the applicant to pay legal fees incurred by the
defendant in the amount of PLN 12,007.
The Court notes that at that time the applicant
received a monthly income of approximately PLN 10,000. Hence, the amount
which he was obliged to pay was equivalent to approximately 120 % of his
monthly income.
The foregoing considerations, taken together,
are sufficient to enable the Court to conclude that, owing to the significant
financial impact of the sums concerned on the applicant’s financial situation
and the substantive nature of the matter at stake, the applicant has suffered a
significant disadvantage as a result of the
alleged violation of the Convention.
In view of the above, the Government’s objection
must be dismissed.
2. Six months
The Government further argued that the applicant
had failed to submit his case to the Court within the six-month time-limit
provided for by Article 35 § 1 of the Convention. Where an applicant
was entitled to be served with a written copy of the final domestic decision as
a matter of course, the object and purpose of Article 35 § 1 of the
Convention were best served by counting the six-month period as running from
the date of service of the written judgment (the Government
cited Worm
v. Austria, 29 August 1997, § 33, Reports
of Judgments and Decisions 1997-V). In the present case the
applicable law did not provide the applicant with the right to be served with a
written copy of the judgment of the second-instance court, as a matter of
course. Hence, the six-month period should be counted from 16 January
2007, the date when that court had given judgment. The applicant submitted his
application to the Court on 31 July 2007. He had therefore failed to
comply with the obligation to apply to the Court within six months, as
stipulated by Article 35 § 1 of the Convention.
The applicant argued that he had become aware of
the content of the judgment only when it was served on him with its written
grounds. He argued that the six-month rule also served the purpose of giving
the applicant time to consider whether to lodge an application with the Court
and to decide on the specific complaints and legal arguments to be raised.
Hence, the six-month period should be counted from the date when the written
text of a decision was served on the party, irrespective of whether its essence
was previously delivered orally in open court.
The Court reiterates that where the domestic law
does not provide for service of the decision, the Court considers it
appropriate to take the date the decision was finalised as the starting-point,
that being when the parties were definitely able to find out its content (see Papachelas v. Greece
[GC], no. 31423/96, § 30, ECHR 1999-II, and Jakelaitis
v. Lithuania (dec.), no. 17414/05, 16 December 2008).
The Court notes that at the hearing of 16 January 2007 the Wrocław Regional Court read out the operative part of the judgment and briefly explained
orally the reasons for that judgment. The court was not obliged either to serve
a copy of its judgment on parties to civil proceedings, as a matter of course,
or to prepare written grounds for the judgment. It was open to the applicant to
request that detailed written grounds for that judgment be prepared in order to
acquaint himself with the court’s reasoning in its entirety, including the
facts of the case as established by the court and the legal reasoning grounding
its decision and he did avail himself of that right. The written grounds
prepared by the court under the provisions of Article 328 of the Code of
Civil Procedure were served on him, together with its operative part, on 26 February
2007.
The Court is of the view, having regard to the
fact that only the written grounds of the judgment contained a detailed summary
of the facts of the case as established by the court and the court’s reasoning
as to the law, that it was only on that date that the applicant was able to
find out the content of the judgment given in his case.
Consequently, it was from 26 February 2007,
the date when the applicant was served with the written grounds of the
judgment, that the six-month period started to run. As the applicant
brought his application to the Court on 31 July 2007, the Government’s
objection based on his alleged failure to file the application with the Court
within that time-limit must be dismissed.
3. Non-exhaustion of domestic remedies
The Government further submitted that the
applicant had failed to exhaust domestic remedies as he had not appealed
against the court’s decision of 5 June 2002 refusing exemption from payment of
the court fees.
The
Court notes that the issue raised by this preliminary objection is closely
bound up with those it will have to consider when examining the complaint under
Article 6 of the Convention. This issue should therefore be joined to the
merits of the present case.
4. Conclusion
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
The applicant submitted that the Wrocław Regional Court had ordered that the statement of claim be served on his
opponent contrary to the domestic law, thus setting the proceedings in motion.
Further, the refusal of exemption from court fees had not been served on the
applicant despite the fact that he had already informed the court of his
address in his statement of claim. As to the Government’s view that the
applicant as a businessman should have saved for the purposes of future and
uncertain litigation, this was irrelevant for the assessment of the case. The
courts examining the applicant’s compensation claim against the State Treasury
had wrongly failed to see the obvious causal link between the error committed
by the court at the outset of the proceedings and the damage sustained by the
applicant.
The Government submitted that the applicant had
instituted the proceedings together with A.Ł. who was also his business
partner (see paragraph 6 above). The court’s refusal to grant the
exemption had been properly served on the latter. It was therefore unlikely
that the applicant had not been informed about that decision by his co-plaintiff.
The Government further argued that the applicant
had already submitted a request for exemption from the court fees with his
statement of claim, but failed to attach documents disclosing facts regarding
his family status, property and income. In the absence of such documents the
court could not give a decision on his request for an exemption. Furthermore,
the applicant had failed to inform the court about his change of address. Had
he complied with that obligation, the decision of 5 June 2002 refusing to
grant the exemption could have been served on him properly. He would then have
been able to challenge it.
The Government submitted that the applicant had
failed to exhaust the relevant domestic remedies as he had not appealed against
the refusal of exemption from the obligation to pay the court fees.
They argued that the applicant as a
professional businessman should have acted with the requisite diligence when
lodging a civil claim. He had failed to do so. Moreover, he should have
foreseen in advance that running a business would be likely to involve him in
litigation and he should have secured funds for that purpose. The conditions
for claiming exemptions from court fees were in any event more stringent in
cases involving businesses than in those involving individuals.
The Government averred that the amount of legal
fees incurred by the defendant which the applicant had had to pay (PLN 12,007)
had been determined by the value of the subject matter of the litigation which
amounted to PLN 237,737. They referred in this connection to the view expressed
by the Court in the case of Kupiec v. Poland (no. 16828/02, 3 February
2009) that applicants who deliberately inflated the value of their
claims could not be expected to be exempted entirely from the payment of court
fees or from the requirement to contribute a reasonable amount to the costs of
taking the action. In any event, the applicant had eventually been able to pay
the legal fees ordered by the court.
To sum up, the fact that the Regional Court had
infringed Article 124 of the Code of Civil Procedure, making it possible
for the defendant to incur costs, was not a decisive factor which had led to
the applicant’s having to reimburse those costs later on.
2. The Court’s assessment
The Court first reiterates that it has found on
several occasions that a court fee levied on parties to civil proceedings
constituted a restriction that impaired 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. 1), 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.
The Court is well aware that in the present case
neither the court fee nor the applicant’s access to a court is at issue. However,
the Court is of the view that there may also be situations in which issues
linked to the determination of litigation 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 Article 6 § 1 of the Convention (see, mutatis
mutandis, Robins v. the United Kingdom, 23 September 1997,
§ 29, Reports 1997-V; Macková v. Slovakia,
no. 51543/99/98, § 55, 29 March 2005; and Pyrobatys A.S.
Restrukturalizacii v. Slovakia (dec.), no. 40050/06, 3 November
2011, mutatis mutandis). The resolution of the issue of court costs may
have implications for the fairness of the proceedings as a whole (see Stankiewicz
v. Poland, no. 46917/99, § 60, ECHR 2006-VI).
As to the present case, the first-instance court
served the statement of claim on the defendant, thereby launching the
proceedings, despite an express provision of the domestic law to the effect
that no procedural measure should be taken until the court fees had been
properly paid (see paragraph 28 above). The defendant, in response to the
proceedings against her, hired a lawyer and incurred costs. Subsequently, in
the compensation proceedings against the State Treasury the Wrocław District
Court acknowledged that the Wrocław Regional Court had erred in law when
forwarding the statement of claim to the defendant (see paragraph 21 above).
However, the task of the Court is not to examine one particular incident which
occurred during the proceedings, but to ascertain whether the proceedings at
issue, considered as a whole, were fair as required by Article 6 § 1
(see, among many other authorities, Vidal v. Belgium,
judgment of 22 April 1992, Series A no. 235-B, § 33). The Court
therefore has to examine the circumstances of the case in their entirety.
The Court reiterates that a party to civil
proceedings is normally expected to display diligence (see Pretto and Others v. Italy,
8 December 1983, § 33, Series A no. 71; Bąkowska
v. Poland, no. 33539/02, §§ 53-54,
12 January 2010). The Court has also held that a party seeking exemption
from the payment of court fees should act with the requisite diligence when
presenting to the courts evidence concerning his financial standing and is
under an obligation to cooperate faithfully with the courts in this matter (Elcomp
sp. z o.o. v. Poland, no. 37492/05, § 41, 19 April 2011). In the present case the
applicant requested the court to grant him an exemption in his statement of
claim submitted on 2 April 2002. However, he failed to submit at the same
time any documents testifying to his family situation and his financial
standing. Hence, the court had no basis on which to determine the question of
exemption.
The Court further observes that the applicant
was a businessman and the proceedings concerned a commercial partnership (see
paragraph 6 above). The Court has already held that the level of diligence
expected from an entity engaged in a commercial activity may be higher is
required from a natural person (see Elcomp sp. z o.o. v. Poland, cited above, § 41). The
applicant brought his action together with the co-plaintiff who was also his
business partner. On 5 June 2002 the court requested the plaintiffs to
submit additional information in respect of their request for an exemption from
court fees. It is true that this summons was not properly served on the
applicant. However, it was served on the co-plaintiff on 10 June 2002. In
the Court’s view, even assuming that the latter failed to inform the applicant
of the summons, the Court is of the view that the applicant, by failing to
ensure effective communication between himself and his co-plaintiff as to
developments in the proceedings, failed to comply with the obligation of
diligence, referred to above.
The Court
further observes that in his testimony given in the compensation proceedings
against the State Treasury the applicant stated that he had withdrawn his claim
not only because of the refusal to grant an exemption, but also because the
defendant had left Poland (see paragraph 21 above). The Court is therefore
of the view that the refusal to grant the exemption was not the only or decisive
factor which made the applicant withdraw his claim.
The Court further notes that in the compensation
proceedings against the State Treasury the applicant was provided with ample
opportunity to state his arguments, to challenge the submissions made by the
State Treasury’s representative and to submit any evidence he considered
relevant to the outcome. In so far as the applicant argued before the Court
that when examining the compensation claim the domestic courts had wrongly
failed to see the obvious causal link between the error committed by the
Wrocław Regional Court at the outset of the proceedings and the damage
sustained by the applicant as a result of that error (see paragraph 50
above), the Court reiterates that its power to review compliance with domestic
law is limited (see, mutatis mutandis, Fredin v. Sweden
(no. 1), 18 February 1991, § 50, Series A no. 192). It
is not the task of the Court to take the place of the domestic courts, as it is
in the first place for them to interpret domestic law
(see, among many other authorities, Tejedor
García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997-VIII;
Iwaszkiewicz v. Poland, no. 30614/06, § 37, 26 July 2011).
The foregoing
considerations are sufficient to enable the Court to conclude that there has
been no violation of Article 6 § 1 of the Convention. On that
account, the Court finds that it is not necessary to examine the Government’s
preliminary objection (see paragraphs 47-48 above).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins to the merits
the Government’s preliminary objection concerning the applicant’s failure to
appeal against the decision of 5 June 2002 and declares the application
admissible;
2. Holds that there has been no violation of
Article 6 § 1 of the Convention and holds in
consequence that it is not necessary to answer the Government’s above-mentioned
preliminary objection.
Done in English, and notified in writing on 16 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David
Thór Björgvinsson
Registrar President
