CASE OF JEDAMSKI AND JEDAMSKA v. POLAND
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
7. The applicants, Mr Grzegorz Jedamski and Mrs Teresa Jedamska, are a married couple. They are Polish nationals, who were born in 1954 and 1960, respectively. They live in Mikołajki Pomorskie, Poland. 8. The proceedings summarised below have already been examined by the Court under Article 6 § 1 of the Convention from the angle of the “reasonable time” requirement. In its judgment of 26 July 2001 (Jedamski v. Poland appl. no. 29691/96) the Court (former Fourth Section) unanimously held that there had been a violation of Article 6 § 1. 9. On 22 December 1992 the Łódź Bank of Development (Łódzki Bank Rozwoju), submitting a bill of exchange payable to bearer which required the first applicant to pay on demand 19,777,167,300 old Polish zlotys (PLZ), asked the Łódź District Court (Sąd Rejonowy) to issue an order for payment against him. 10. On 14 January 1993 the court granted the plaintiff’s claim and ruled that the first applicant was to pay the sum in question within seven days from the date of service of the order or, alternatively, within the same time-limit, to lodge an appeal against the said order. The first applicant appealed. 11. On 11 February 1993, acting under a provisional writ of execution of 1 February 1993 and on a request by the creditor, i.e. the Łódź Bank of Development, the Bailiff of the Warsaw District Court (Komornik Sądu Rejonowego) made an order attaching the applicants’ shares in the Bank of Development of Export (Bank Rozwoju Eksportu) and an unknown sum of cash deposited in the Central Brokerage Bureau of the Bank PeKaO S.A. (Centralne Biuro Maklerskie Banku Polska Kasa Opieki S.A.), by way of security for the creditor’s claim for payment of PLZ 19,777,167,300 pending in the Łódź Regional Court. 12. On 26 February 1993 the first applicant lodged an unsuccessful complaint against the actions taken by the bailiff (skarga na czynności komornika), relying on Article 767 of the Code of Civil Procedure and arguing that the attached shares constituted the matrimonial property of the applicants, whereas the execution was against the applicant alone. 13. On 12 October 1993 the Łódź Bank of Development was taken over by the BIG Bank SA (Bank Inicjatyw Gospodarczych SA). The BIG Bank SA replaced the former bank as a plaintiff in the civil proceedings and as a creditor in the enforcement proceedings. 14. On 23 February 1999 the Łódź Regional Court quashed the order for payment and awarded the plaintiff bank 1,954,097.49 new Polish zlotys (PLN) [approx. EUR 442,000] together with interests and costs of the proceedings. The plaintiff bank and the first applicant appealed against that judgment. 15. On 9 April 1999 the Łódź Regional Court secured the plaintiff’s already-awarded claim by attaching the applicants’ shares in the Bank of Development of Export (Bank Rozwoju Eksportu), an amount of PLN 984,674.50 in cash deposited in the Central Brokerage Bureau of the Bank PeKaO S.A. (Centralne Biuro Maklerskie Banku Polska Kasa Opieki S.A.) and shares in the former Łódź Bank of Development (Łódzki Bank Rozwoju) (taken over by the BIG Bank SA) deposited in the Łódź District Court by the Bailiff of the Łódź District Court (Komornik Sądu Rejonowego). 16. On 6 October 1999 the Łódź Court of Appeal (Sąd Apelacyjny) dismissed the appeal lodged by the first applicant against the decision of 9 April 1999. 17. On 19 October 1999 the Łódź Court of Appeal upheld the decision of 23 February 1999. 18. On 16 November 2000 the Bailiff of the Warsaw District Court discontinued the enforcement proceedings instituted under the writ of execution of 1 February 1993. Nevertheless, the attachment of the applicants’ property made on 9 April 1999 remained in force. 19. On 26 January 2001 the Supreme Court dismissed the cassation appeal lodged by the first applicant. 20. On 10 May 2001 the Supreme Court rejected the first applicant’s request to reopen the proceedings. 21. On 28 December 2000 the applicants sued the Warsaw BIG Bank SA in the Warsaw Regional Court (Sąd Okręgowy). They sought damages of PLN 340,000,000 claiming that the attachment of their property, in particular the shares, made at the BIG Bank SA request on the basis of the quashed order for payment of 14 January 1993, deprived them of any future profit-making trade in shares at the Warsaw Stock Exchange. 22. On 23 January 2001 the applicants informed the court that, on 5 January 2001, as a result of the banks’ merger, the BIG Bank SA (Bank Inicjatyw Gospodarczych SA) had been taken over by the BIG Bank Gdański SA. From that date onwards, the BIG Bank Gdański SA replaced the former bank as a defendant in the proceedings. On an unknown date the court ordered the applicants to pay a court fee of PLN 100,000 for lodging the claim. 23. On 23 January 2001 the applicants asked the Warsaw Regional Court to exempt them from payment of that fee. They also submitted a declaration of means, pursuant to Article 113 § 1 of the Code of Civil Procedure. Their application read, in so far as relevant: “... The plaintiffs ask for an exemption from the court fee on the ground that they cannot pay that sum as it will entail a substantial reduction in their standard of living. The plaintiffs’ matrimonial property was seized by the Bailiff acting upon the decision of the Łódź Regional Court of 9 April 1999. [in connection with that argument, the applicants produced a copy of that decision] Their income from a farm, which is the second applicant’s personal property, does not suffice for the payment of PLN 3,957.50 the plaintiffs owe in tax arrears. [in connection with this argument, the applicants produced a copy of a certificate issued by the Mikołajki Pomorskie Commune Office (Urząd Gminy) stating the anticipated income and tax arrears] The plaintiffs declare that they are not deriving the anticipated income indicated in the presented certificate due to a shortage of funds for making investment outlays in the production. The plaintiffs further state that, given that their other assets were attached, their only present income is that from the farm. In the circumstances, the plaintiffs are unable to pay the court fees. Finally, the plaintiffs inform [the court] that in other civil proceedings, the Łódź Regional Court, in its decision of 9 June 1999, exempted the first applicant from paying the full amount of fees. [in connection with that argument, the plaintiffs produced a copy of that decision]” The declaration of means made by the first applicant read, in so far as relevant: “The plaintiff asks for an exemption from court fees on the ground that he cannot pay the fee in question [as it will] entail a substantial reduction in his standard of living. He has the following items of property: 1) no personal property; the average anticipated annual income from the agricultural farm is estimated at PLN 66,140.43; 2) 62,500 shares in the BRE Bank SA, 9,950 shares in the BIG Bank SA and PLN 984,674.50 in cash (matrimonial property attached by the Bailiff); 3) 11 shares in the BIG BG SA; 4) audio and television equipment; furniture.” 24. The declaration of means made by the second applicant read, in so far as relevant: “The plaintiff asks for an exemption from court fees on the ground that she cannot pay the fee in question [as it will] entail a substantial reduction in her standard of living. She has the following items of property: 1) agricultural farm, the average anticipated annual income from which is estimated at PLN 66,140.43; 2) car; 3) 62,500 shares in the BRE Bank SA, 9,950 shares in the BIG Bank SA and PLN 984,674.50 in cash (matrimonial property attached by the Bailiff); 4) 11 shares in the BIG BG SA; 5) audio and television equipment; furniture.” 25. On 30 January 2001 the court rejected the applicants’ application. The reasons for that decision read, in so far as relevant: “... As it emerges from the plaintiffs’ declarations of means, the second applicant is a sole owner of the farm of 57.44 ha ... The annual anticipated income from the farm amounts to PLN 66,140.43 and constitutes the only source of the plaintiffs’ income. Moreover, the plaintiffs are the owners of PLN 984,674.50 in cash, 62,500 shares in the BRE Bank SA and 9,950 shares in the BIG Bank SA. It is true that their cash and shares have been attached by the decision of the Łódź Regional Court, but the plaintiffs’ real financial situation does not seem to be as bad as they present it. Taking into consideration their assets and income derived from the farm, the plaintiffs are able to pay the full amount of the court fees without any reduction in their family’s standard of living. When deciding to bring the present claim, the plaintiffs should have taken into account the fact that it would involve the necessity of paying court fees. They should therefore have secured financial means in anticipation of the litigation...” 26. On 13 February 2001 the applicants lodged an interlocutory appeal (zażalenie) against that decision. They alleged a breach of Article 113 § 1 of the Code of Civil Procedure and Article 6 § 1 of the Convention. The applicants maintained that it had clearly emerged from the documents produced by them, in particular the Łódź Regional Court’s decision to secure the plaintiff’s claim for payment by attaching the applicants’ shares and the declaration setting out the average anticipated annual income from the farm, that they were unable to pay the court fee of PLN 100,000 imposed on them. 27. On 9 March 2001 the Warsaw Court of Appeal (Sąd Apelacyjny) dismissed the appeal. The relevant part of that decision read: “... The plaintiffs’ assets are of a considerable value and they several times exceed the average level of means. This conclusion cannot be changed by the fact that part of their property is attached in other civil proceedings. The plaintiffs still remain the owners of their property and, consequently, should be able to take necessary measures to gather sufficient means to pay the court fees. The plaintiffs are involved in a number of proceedings concerning pecuniary and non-pecuniary rights to their shares in commercial companies and, in the past, they made a large number of transactions on the stock exchange market. These facts indicate that the plaintiffs ... cannot be regarded as indigent and that the court fees for lodging their claim should not be borne by the State. Their declaration of means is dubious because it is not complete. The plaintiffs did not indicate precisely whether they had title to their apartment. They did not reveal the real income derived from the farm. Nor did they produce any information concerning the type of activities in which they are engaged on their farm. Moreover, [the first applicant] failed to indicate his place of employment; his being his wife’s dependant seems doubtful.... Lastly, the plaintiffs did not supply any information concerning their house or the farm equipment. That information would have enabled the court to ascertain their real standard of living. Assessing all the circumstances, the following conclusion can be drawn: the plaintiffs, who have failed to show their current financial situation and to reveal their income, cannot successfully challenge the first-instance decision which rejected their application for an exemption from court fees. They cannot therefore complain that they are deprived of access to a court. In addition, it should be pointed out that the amount of the court fee is based on the value of the claim in question and that [that value] depended on the plaintiffs....” 28. On 30 April 2001 the Warsaw Regional Court ordered the applicants to pay PLN 100,000 for lodging their claim. The applicants did not pay that sum. As a consequence, on an unknown date, the Warsaw Regional Court ordered that the applicants’ statement of claim be returned to them (zarządził zwrot pozwu), which meant that their claim was of no legal effect and that the relevant proceedings were, for all legal and practical purposes, regarded as having never been brought before the court. 29. Under Polish law every plaintiff is obliged to pay a court fee at the time of lodging a statement of claim with a court. As the case proceeds, either party is obliged to pay further court fees at the time of lodging any appeal or constitutional complaint, unless granted an exemption from such fees. Court fees are based on a percentage (if a fee is due for lodging a claim or an appeal) or a fraction (if a fee is due for lodging an interlocutory appeal) of the value of the claim in question. The court fees incurred by either party can, depending on the outcome of the litigation, be finally repaid by the losing party (who, in principle, is ordered to pay all the costs of litigation in a final judgment). 30. There are, however, categories of litigants who are exempted from court fees by virtue of statutory provisions. Some of those categories are listed in Article 111 § 1 of the Code of Civil Procedure. That provision, in the version applicable at the relevant time, exempted from court fees a party lodging a paternity action, a party seeking maintenance, a prosecutor, a court-appointed guardian and “any party exempted from court fees by the competent court” (that is to say, a party who had been granted an exemption under Article 113 of the Code, cited below). 31. The other categories of these exempted litigants are listed in, inter alia, sections 8 and 9 of the Law of 13 June 1967 on Court Fees in Civil Cases (Ustawa o kosztach sądowych w sprawach cywilnych). Under section 8 of the Law, the State Treasury, municipalities and other public organs or institutions are not obliged to pay court fees, provided that the claim in question does not relate to their business activity. Section 9 authorises the Minister of Justice to exempt non-governmental organisations from court fees. 32. In case of a successful outcome of litigation initiated by a person exempted from court fees, the fees which would normally have been collected from that person for lodging and proceeding with his claim are awarded to the State Treasury against his opponent. 33. The Law of 13 June 1967 on Court Fees in Civil Cases (as amended) sets out general principles with respect to the collection of fees by courts. Section 5(1) of the Law, in the version applicable at the material time, stipulated: “Unless otherwise provided by the law, a party who has submitted to a court a pleading which is subject to court fees, shall pay such fees.” 34. The relevant part of section 16 of the Law, in the version applicable at the material time, provided as follows: “1. The court shall not take any action if the court fee due for lodging a given pleading is not paid. In such a case the president of the court shall order the party concerned to pay the fee due within a period not exceeding seven days, on pain of having the pleading returned. If the party does not comply with the time-limit, the pleading shall be returned to this party. ... 3. Any appeal, cassation appeal, interlocutory appeal or objection to a judgment by default ... shall be rejected if the court fee due is not paid within the [above] time-limit.” 35. Section 18 provided: “A pleading which has been returned to a party as a result of the fact that the court fee had not been paid, shall be of no legal effect.” 36. The relevant part of paragraph 1 of the Ordinance of the Minister of Justice of 17 December 1996 on Determining Court Fees in Civil Cases (Rozporządzenie Ministra Sprawiedliwości w sprawie określania wysokości wpisów w sprawach cywilnych) (as amended), in the version applicable at the material time, stated: “(4) Where the value of the claim exceeds PLN 100,000 the court fee shall amount to PLN 6,600 for the first PLN 100,000 and 5% of the remaining value of the claim. In any case the court fee due shall not exceed the sum of PLN 100,000.” 37. Exemption from payment of court fees was (and still is) a matter for the discretion of the court competent to deal with the case. Article 113 § 1 of the Code of Civil Procedure, in the version applicable at the material time, stipulated: “An individual may ask the court competent to deal with the case to grant him an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living. Such a declaration shall contain details concerning his family, assets and income. It falls within the court’s discretion to assess whether or not the declaration satisfies the requirements for granting the exemption requested.” The grounds for exempting legal persons, companies and business enterprises from court fees were, however, formulated in a different way from the grounds applying to natural persons. Paragraph 2 of Article 113 of the Code of Civil Procedure in the version applicable at the relevant time read: “A legal person, or an entity not possessing legal personality, which has demonstrated that it does not have sufficient financial means for court fees, may be granted an exemption from those fees.” Article 116 § 1 of the Code of Civil Procedure provides: “In case of doubt ... as to the real financial situation of the party requesting exemption from court fees, the court may order a verification of his declaration.” The relevant part of Article 120 § 1 of the Code, in the version applicable at the material time, stated: “The court shall revoke an exemption from court fees or legal assistance granted if the basis therefor did not exist or has ceased to exist. In either instance the party concerned shall pay all court and/or legal fees due in his case...” 38. Fees collected by courts do not constitute, nor are they equivalent to, security for costs. The court fees are transferred by financial departments of the courts to the State Treasury and are deemed to be part of its income. 39. On 11 January 1995 the Supreme Court (Sąd Najwyższy) gave a decision in which it referred for the first time to the “right to a court” guaranteed under Article 6 § 1 in the context of the requirement to pay court fees for lodging a claim or appeal (decision no. III ARN 75/95, published in OSN Zb. U. 1995, no. 9). That ruling concerned an extraordinary appeal lodged by the First President of the Supreme Court with the Supreme Court. The appeal was directed against a decision of the Supreme Administrative Court, refusing to exempt a claimant in administrative proceedings from payment of court fees. The Supreme Court held as follows: “1. From the date on which Poland became a member of the Council of Europe, the case-law of the European Court of Human Rights in Strasbourg may and should be taken into account in interpreting Polish law. 2. If the subject matter of a case is the party’s application for substantial financial assistance from the public authorities, particular diligence should be displayed in considering [that party’s] parallel application for an exemption from court fees. [Any decision] rejecting such an application should give relevant and particularly cogent reasons so as not to amount to an actual denial of the right to a court (as secured by Article 6 of the European Convention of Human Rights) ...” Although the relevant decision related to court fees for lodging an appeal with the Supreme Administrative Court by a person who had requested financial assistance from the public authorities, it has been applied mutatis mutandis to civil cases.