CASE OF MARINA v. LATVIA
Violation of Art. 6-1;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
The applicant was born in 1938 and lives in Rīga. From an unspecified date, the applicant, together with her partner V.M., made use of a plot of land in Carnikava parish. The rights to use the land were allocated to the latter by a decision of the Carnikava Municipality. The property consisted of a dwelling house with an extension, greenhouses and a garden. After the death of the applicant's partner in 2000 and the applicant's subsequent eviction from an apartment in Rīga, she continued to reside in the property in Carnikava parish and to gain an income by selling the products cultivated there. In July 2005 the applicant found out that the dwelling house, greenhouses and the garden had been destroyed. She requested that criminal proceedings be instituted against the alleged perpetrator, P., who did not contest the allegations. On 9 September 2005, having examined the applicant's complaints, the police officer of the Saulkrasti Police Department refused to institute criminal proceedings on the grounds that the rights to use the aforementioned property had passed to J.M. (the son of the late V.M.) and no complaints whatsoever had been received from him regarding the alleged destruction of the property. From 2005 onwards the applicant has been repeatedly considered as a “low-income person” (maznodrošināta persona), as the amount of her old-age retirement benefit did not exceed 125 % of the established minimum monthly salary in the Republic of Latvia. From September 2004 to the present day the applicant has been renting an apartment in a social building where the monthly utilities charges have averaged LVL 25 (EUR 36) in the winter and, around LVL 12 (EUR 17) in the summer. Apart from receiving an old-age retirement pension in the amount of LVL 75.60 (EUR 107) (the amount at the material time), in 2006 and 2007, at the time of bringing the civil proceedings the applicant was also in receipt of the following municipality assistance: a housing allowance averaging LVL 3 (EUR 5) per month; two lump-sum payments together totalling LVL 50 (EUR 71) assigned to cover housing and utilities expenses; health insurance in the amount of LVL 45 (EUR 64) and a lump sum in the amount of LVL 20 (EUR 29) to improve the condition of her health. On 29 September 2005 the applicant lodged a claim for damages against P. in the amount of LVL 171,110 (EUR 244,443) and asked the court for exemption from the court fee (also referred to as a State fee) in the amount of LVL 1,503.33 (EUR 2,148) owing to her poor financial situation. In support of her application, the applicant attached thereto a certificate confirming her low-income status. On 3 October 2005, by a decision of the Rīga Regional Court, the applicant's claim for damages was dismissed on the grounds that she had failed to demonstrate that she had the right to use the aforementioned property. On 8 November 2005, on the applicant's appeal, the Civil Chamber of the Supreme Court revoked the above decision and forwarded the matter for examination once again ,finding that: “The Civil Law grants to everyone a right to claim damages. [I]n a situation where damage has been inflicted, everyone is entitled to come before a court in order to protect their infringed rights. [Thus], the applicant has a right to claim damages, and this should not be linked to her rights to [...] use the [property]”. On 25 November 2005 the Rīga Regional Court partly upheld the applicant's request and reduced the amount of the court fee to LVL 100 (EUR 143). On 1 March 2006 the Civil Chamber of the Supreme Court dismissed the applicant's ancillary complaint whereby she requested a further reduction in the court fee. The court noted that the claim concerned material damages and that there was no ground for a further reduction. It noted inter alia: “Pursuant to section 43 § 4 of the Law of Civil Procedure the applicant can ask to postpone payment of the court costs allocated to State revenue, or divide payment thereof into instalments.” Subsequently the applicant asked for postponement of payment of the fee until the court adopted a decision concerning her claim. On 12 April 2006 the Rīga Regional Court dismissed the applicant's request, noting: “Section 43 § 4 of the Law of Civil Procedure authorises the court to postpone or divide into instalments only those court costs which had been allocated to State revenues, [and it does not authorise] the postponement of [the paying of] State fees at the time of lodging a claim”. On 7 September 2006 the Civil Chamber of the Supreme Court dismissed the applicant's complaint and upheld the lower court's decision. On 12 January 2007 the applicant lodged an identical claim for damages and asked to be exempted from payment of the court fee. She argued that her financial situation was poor, that her property had been destroyed, and her only income was an old-age pension. On 17 January 2007, the Rīga Regional Court partly upheld the applicant's request and again reduced the fee to LVL 100 (EUR 143), taking account of the reasoning underpinning the decision adopted on 25 November 2005 by the Rīga Regional Court in identical circumstances. In an ancillary complaint, the applicant appealed against the partial reduction of the court fee and explained that her monthly old-age pension was about LVL 75.60 (EUR 107), from which she had to clear the rent and utilities arrears for the apartment she had been evicted from. On 5 March 2007 the Civil Chamber of the Supreme Court, in a final decision, upheld the decision of the lower court, noting that there were no grounds for a further reduction of the State fee or complete exemption. It stated inter alia that: “Pursuant to section 43 § 4 of the Law of Civil Procedure the applicant can ask to postpone payment of court costs as allocated to State revenues, or divide payment thereof into instalments.” The court subsequently set a time-limit of 7 May 2007 by which the applicant was obliged to rectify the deficiencies of her claim, i.e. add proof of payment of the court fee. According to the Government, the decision was served on the applicant not later than 12 March 2007. According to the applicant, she received the above decision on 14 May 2007. Section 33 Costs of adjudication: Section 34 State (court) fees: (1) For each statement of claim – original claims or counterclaims, applications of a third person statement of claim with an independent claim regarding the subject-matter of the dispute, submitted in a procedure which has already commenced, applications in special adjudication procedure matters, and other claims applications provided for in this Section submitted to the court – a State fee shall be paid in the amount set out as follows: Section 43 Exceptions from general provisions regarding court costs: (4) A court or a judge, upon considering the material situation of a natural person, shall exempt him or her partly or fully from the payment of court costs into State revenues, as well as postpone payment of court costs allocated to State revenues, or divide payment thereof into instalments. Section 56¹ provides that in a situation where court documents are sent by post, it ought to be assumed that a document will reach the recipient within seven days following the day on which it was posted. Section 133 § 5 provides that when a civil claim has not been allowed, the applicant bringing the claim is not prevented from repeatedly submitting an identical claim in compliance with the general procedures prescribed in this Law. According to paragraph 3.1., a “low-income status” is, inter alia, that granted to an individual who receives an old-age pension, resides alone, and whose monthly income does not exceed 125% of the minimum salary as prescribed by law. Besides, in order to be granted low-income status, the person has to prove that she or he does not own a property that could be used to generate income and that she or he has no debts and is not owed money.