Kijewska v Poland  ECHR Application No 73002/01 (6 September 2007)
The European Court of Human Rights has held that the right to a fair hearing subsumes a right of access to a court and that a requirement to pay substantial court fees to file or proceed with a claim may constitute a violation of that right.
The applicant, Bozena Kijewska, lodged a civil claim regarding a property dispute in the Polish local courts. She applied on a number of occasions between 1999 and 2001 to be exempted from court filing and processing fees amounting to approximately 10,000 Polish zlotys (about A$4000). The applicant received on average around 2,500 Polish zlotys (about A$1000) from a disability pension and part-time work as a lawyer. The Polish courts refused her applications for exemption from the court fees and dismissed her claim accordingly. In 2004, the applicant again filed her claim and paid the associated court fees. This claim was determined on the merits and dismissed in 2005.
The applicant then lodged a complaint with the European Court of Human Rights alleging that the excessive court fees required to proceed with her claim constituted a breach of her right of access to a court for the determination of her civil rights under art 6 of the European Convention. Art 6 relevantly provides that, ‘In the determination of civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal established by law. ...’
The Court held that, pursuant to its judgment in Kreuz v Poland (Application No 28249/95, 19 June 2001), a requirement to pay substantial fees to civil courts can be regarded as a restriction on the right of access to a court. The Court stated that 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 a right of access and had ‘a ... hearing by [a] tribunal’.
In the present case, the Court considered that the amount of the court fees were substantial, particularly having regard to the applicant’s monthly income, stating that ‘it does not seem reasonable to demand that she spend it on the payment of court fees rather than on her basic living needs.’ The Court also observed that, even if the fees were not waived in their entirety, the Polish courts could and should have considered partial exemption.
In respect of the claim filed and applications made between 1999 and 2001, the Court concluded that, ‘having regard to the importance of the right to a court in a democratic society…the judicial authorities failed to secure a proper balance between the interest of the state in collecting court fees on the one hand, and the interest of the applicant in pursuing her civil claim on the other’. The Court further concluded that ‘the refusal to reduce the fee for lodging the applicant’s claim constituted a disproportionate restriction on her right to access to a court’ in breach of art 6 of the European Convention. The Court ordered the payment of EUR 6,000 in damages for the applicant’s ‘frustration and feeling of injustice’.
In respect of the claim filed and substantively dismissed in 2005 after the applicant had paid the fees, the Court held that the applicant had obtained a determination on the merits by domestic courts and, therefore, notwithstanding that the court fees were very high, they could not be found on the facts to have constituted ‘an unjustified restriction on her access to a court’.
Implications for the Victorian Charter
This decision may be relevant to the interpretation and application of s 24 of the Charter, which provides that ‘a person charged with a criminal offence or a party to a civil proceeding has the right…to a fair hearing’.
As discussed in Edition 17 of the Bulletin, on a narrow view, the term ‘party to a civil proceeding’ used in the Charter is more limited in its application than a term such as a person seeking ‘determination of rights and obligations in a suit at law’ used in art 6 of the European Convention and art 14 of the ICCPR, and will not subsume a right of access to the courts; the right to a fair hearing is only a right belonging to a person who is already before the court.
The broader and better view, however, is that ‘party to a civil proceeding’ under s 24 of the Charter should be interpreted to include a potential party to a proceeding in circumstances where the denial of access to a court would amount to the denial of a fair hearing itself. Both the European Court and the UN Human Rights Committee have consistently stated that human rights must be interpreted and applied in a manner which renders them ‘practical and effective, not theoretical and illusory’ (see, eg, Goodwin v United Kingdom (2002) 35 EHRR 447, -; Airey v Ireland (1979) 2 EHRR 305, 314; Currie v Jamaica, UN Doc CCPR/C/50/D/377/1989). Accordingly, the right to a fair hearing has been consistently held, at the very least, to include the minimum basic elements of:
- equal access to, and equality before, the courts;
- the right to legal advice and representation;
- the right to procedural fairness;
- the right to an expeditious trial or hearing without undue delay;
- the right to a competent, independent and impartial tribunal established by law;
- the right to a public hearing; and
- the right to have the free assistance of an interpreter where necessary.
In respect of access to a court, both the Human Rights Committee and the European Court have held that the fair conduct of a civil proceeding is meaningless if one does not have the right to bring the proceeding in the first place. The right to a fair hearing presupposes the right of access to the courts just as it presupposes the existence of the courts themselves (see, eg, Golder v United Kingdom, 4451/70  ECHR 1). Both bodies have further held that fulfilment of the right to a fair hearing may require positive action by the state to ensure effective access to the courts, such as waiver of court fees and the provision of legal aid (see, eg, Airey v Ireland (1979) 2 EHRR 305).
The broader interpretation of s 24 of the Charter is consistent with the requirement pursuant to s 32(1) of the Charter that all statutory provisions must be interpreted compatibly with human rights (this interpretative principle relevantly applying to s 24 of the Charter itself) and s 32(2) which encourages Victorian courts to consider international and comparative human rights jurisprudence. It is also consistent with the fact that the right to a fair hearing under international law is considered by the Human Rights Committee to be fundamental and, in certain respects, non-derogable (see, eg, HRC, General Comment 29: States of Emergency (Article 4), UN Doc CCPR/C/21/Rev.1/Add.11 (2001) ).
The decision is available at http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database.
Philip Lynch is Director of the Human Rights Law Resource Centre