The exclusion of the application of provisions on court costs in electronic writ-of-payment proceedings (parties deprived of the right to request exemption from court costs) P 19/16
Case ref. no. P 19/16 (summary)
On 29 April 2020 the Constitutional Tribunal delivered its ruling on the question of law, referred by the Circuit Court in Lublin (2nd Civil Division – the appellate instance), pertaining to the exclusion of the application of provisions on court costs in electronic writ-of-payment proceedings, as a result of which parties to those proceedings are deprived of the right to request exemption from court costs (case ref. no. P 19/16).
The Constitutional Tribunal adjudicated that Article 104a of the Act of 28 July 2005 on Court Costs in Civil Cases – insofar as it excludes the possibility of the defendant being exempt from court costs in electronic writ-of-payment proceedings – is inconsistent with Article 45(1) in conjunction with Article 77(2) of the Constitution of the Republic of Poland. The ruling was unanimous. The Judge Rapporteur in the case was Judge Rafał Wojciechowski.
Electronic writ-of-payment proceedings were introduced – together with a number of related legal norms – into the Polish legal system at the beginning of 2010. Also, at that time, a special “e-court” was established (namely the District Court for the District of Lublin-Zachód in Lublin (6th Civil Division)). Electronic writ-of-payment proceedings are optional in character, namely a case is considered in those proceedings only when a plaintiff files his/her claim in an electronic form, i.e. files a lawsuit via the relevant Internet portal (https://www.e-sad.gov.pl/). As far as the scope ratione personae is concerned, the aforementioned proceedings have been introduced mainly for plaintiffs who file their claims en masse – i.e. entrepreneurs. Nevertheless, the group of plaintiffs that are eligible to assert their claims in those proceedings remains unlimited. As regards the scope ratione materiae, in electronic writ-of-payment proceedings parties may assert financial claims. Although the underlying assumption was that the said proceedings were intended for determining “minor” cases, the legislator has not actually set the value limit for claims that may be filed in those proceedings. According to the legislator’s assumptions, electronic writ-of-payment proceedings are intended to resolve cases that are uncomplicated (potentially those with undisputed matters) and do not require carrying out extensive evidentiary proceedings. The plaintiff’s obligation is to indicate relevant evidence to prove his/her assertions, without the requirement to annex the evidence to the plaintiff’s petition. This way many civil cases can be examined relatively quickly (due to the lack of evidentiary proceedings, the electronic exchange of correspondence, and the lack of a hearing) and – from the point of view of parties to those proceedings – cheaply.
The ratio legis of the challenged provision was the expeditious issuing of a ruling (a writ of payment). As it was indicated in the explanatory notes to the Government’s Bill: “The essence of electronic writ-of-payment proceedings is the expeditious issue of a ruling” (p. 4). The decision to eliminate the possibility of the defendant being exempt from court costs was primarily motivated by the fact that “the consideration of requests for exemption from court costs would to a considerable degree lengthen the proceedings, which would defeat the purpose of the proposed amendments” (p.18); secondly, it was motivated by the fact that “the elimination of the possibility of being exempt from court costs does not infringe the plaintiff’s rights” (ibidem), because recourse to electronic writ-of-payment proceedings is not obligatory” (ibidem) and it is “the plaintiff who decides what types of proceedings s/he will choose” (ibidem); therefore, if (…) s/he wishes to exercise the right to be exempted from court costs, s/he may choose the traditional writ-of-payment proceedings” (ibidem). In the explanatory notes to the Bill, it was clearly stated that “the elimination of the possibility of exemption from court costs does not concern (…) the defendant” (p.19), since “when s/he lodges an objection, s/he is not required to incur any costs” (ibidem).
The Constitutional Tribunal indicated that the aforementioned assumption of the legislator is not fully justified. The legislator has not predicted the situation where the effectiveness of the defendant’s objection against a writ of payment would require the conduct of evidentiary proceedings upon a request of the defendant who cannot afford the ensuing costs.
The main higher-level norm for the review in the present case is Article 45(1) of the Constitution, which stipulates that: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court”. The said provision establishes a fundamental right of the individual – in a democratic state ruled by law – i.e. the right to a fair trial, which also constitutes a guarantee of the rule of law. The right to a fair trial comprises four fundamental elements: the right of access to a court (i.e. the right to institute proceedings before a court), the right to a proper court procedure (which complies with the requirements of a fair and public hearing; in other words: procedural justice); the right to have cases examined by the organs of the state with an adequate organisational structure and position as well as the right to a court ruling (i.e. the right to have a given case determined in a legally effective way by a court; see e.g.: the judgment of 24 October 2007, ref. no. SK 7/06, OTK ZU nr 9/A/2007, item 108). The necessary (insufficient) prerequisite for the realisation of the right to a fair trial is – in the light of the above – the ensuring of access to a court, construed as a real possibility of commencing a relevant procedure for asserting claims or undertaking defence. It is only then that the other – substantive – components of the said right gain in significance, the regulation and functioning of which determines the possibility of effective protection of rights. The content of the allegations raised with regard to the challenged provision in the question of law indicates that the case under examination strictly concerns the right of access to a court as well as procedural justice.
What follows from Article 45(1) of the Constitution is that the constitution-maker’s intention was to cover, by means of the right to a fair trial, the widest possible scope of civil, administrative and criminal cases. Also, due to the fundamental principle of a democratic state ruled by law, the said right is not subject to a narrowing interpretation. Apart from the positive aspect (the requirement that the legislator appropriately shapes the administration of justice and its effective functioning), it also comprises a negative aspect which amounts to the prohibition of barring (or excessively restricting) access to the administration of justice. Clearly, the right to a fair trial is not absolute in character and may to some extent be restricted, provided that such a restriction will fall within the limits of Article 31(3) of the Constitution, i.e. will be introduced by statute and will be cause by the need to protect, in a democratic state, the following values: the security of the state, the public order, the protection of the natural environment, health and public morals, the freedoms and rights of other persons) and will not result in the lack of recourse to a court to assert one’s rights and freedoms (see e.g.: the judgment of 12 September 2006, ref. no. SK 21/05, OTK ZU no. 8/A/2006, item 103). The said restrictions may be financial, which is justified by a public interest which consists here in ensuring the proper functioning of the administration of justice.
It does not follow from the Constitution that the full realisation of the right to a fair trial may only be guaranteed by completely free-of-charge proceedings. Also, there is no constitutional requirement of free-of-charge court proceedings and of burdening the State Treasury with the costs. The legislator enjoys regulatory discretion within that scope and may – respecting the principle of responsibility for the outcome of a trial – specify the mutual settling of accounts between parties, taking account of axiological and functional considerations (see e.g. the judgment of 17 May 2016, ref. no. SK 37/14, OTK ZU A/2016, item 22). Addressing the issue of court costs from the constitutional perspective, the Constitutional Tribunal noted that the said costs constitute an instrument of the state’s policy, aimed at regulating relations between parties to court proceedings as well as triggering individuals’ decisions as to the way of handling their interests and selecting means of protection (see the judgment of 7 September 2004, ref. no. P 4/04, OTK ZU no. 8/A/2004, item 81). The said costs contribute to achieving efficiency on the part of courts, in terms of their organisation and jurisprudence, as well as to eliminating (at least partially) manifestly unfounded claims. The said costs also play a social role (limiting litigiousness, minimising incentives to protect fictional interests and to seek unjust enrichment) as well as a fiscal one (partial reimbursement of the costs of the administration of justice; see, for example, the judgment of 16 June 2008, ref. no. P 37/07, OTK ZU No. 5/A/2008, item 80).
While respecting the rule that the administration of justice is not free of charge, one should bear in mind that the possibility of avoiding court costs is of fundamental significance for those parties to court proceedings that cannot afford to cover the costs in full or partially. However, if an obligation to pay court costs is imposed and there is a state requirement that the costs be paid, then there should – for the sake of balance – also exist an effective system of exempting parties to court proceedings from court costs (i.e. a real possibility of avoiding the said costs; see the above-cited judgment ref. no. P 4/04). It is indeed inadmissible to set the costs of court proceedings at an excessive level, which would constitute an economic obstacle to asserting rights. In other words, court costs may not be too high so as not to restrict access to a court and not to prevent the individual from asserting his/her rights in court proceedings (see e.g. the judgment of 12 June 2002, ref. no. P 13/01, OTK ZU No. 4/A/2002, item 42, and the cited judgment ref. no. SK 37/14). Due to the possibility of being granted (and more precisely: due to the subjective right to request) exemption from court costs, parties to proceedings may – even despite a difficult financial and/or life situation – obtain court protection of their rights; at the same time, in this way, the state realises their right to a fair hearing of a case by a court (see e.g. the cited judgment ref. no. P 37/07). The court’s individualised examination of the financial and life situation of a party to proceedings constitutes the most effective means to guarantee access to a court.
As regards procedural justice (namely, the right to a fair court procedure), it should be pointed out that – without the fairness of proceedings, the right to a fair trial would be illusory in character. What constitutes the core of procedural justice is the possibility of being heard by a court, i.e. the possibility of each party to reach a court and present its stance and arguments in favour of the stance.
Moreover, pursuant to Article 77(2) of the Constitution: “Statutes shall not bar the recourse by any person to the courts in pursuit of claims alleging infringement of freedoms or rights”. The said provision of the Constitution should – as the Constitutional Tribunal has pointed out on a number of occasions – be read in conjunction with Article 45(1) of the Constitution, as the two provisions have established the constitutional guarantees of the right to a fair trial and there is “an organic connection” between them (see the judgment of 10 May 2000, ref. no. K 21/99, OTK ZU No. 4/2000, item 109). Article 45(1) of the Constitution formulates the positive right to a fair trial, whereas Article 77(2) of the Constitution prohibits barring recourse to courts as regards asserting violated rights and freedoms, and thus the latter provision complements (supplements, expands) the right expressed in the former provision. One should remember that Article 45(1) of the Constitution comprises the pursuit of any rights before a court, whereas Article 77(2) of the Constitution merely refers to the rights and freedoms guaranteed by the Constitution, i.e. it contains “lex specialis” to Article 45(1) of the Constitution. In other words, statutory restrictions of the right to a fair trial, which meet the requirements set by Article 31(3) of the Constitution, must also take account of the strict prohibition against barring recourse to a court within the scope of asserting constitutional rights and freedoms. Additionally, Article 77(2) of the Constitution sets – together with Article 31(3) – the scope of admissible restrictions of the right to a fair trial.
The provision which raises the constitutional doubts of the court referring the question of law deprives parties to electronic writ-of-payment proceedings of the possibility of obtaining exemption from court costs. This is irrelevant in the case of a plaintiff, but this may at times be of great significance to the defendant. Indeed, this may result in barring recourse to a court, due to the unavoidable necessity to pay court costs which the defendant cannot afford. Restrictions of the right to a fair trial may not only be direct in character (i.e. be rendered expressis verbis), but also they may be indirect – when they arise from legal provisions introducing economic barriers, e.g. in the form of high costs of proceedings, without the payment of which the proceedings may not be instituted and conducted (see the judgment of 23 May 2005, ref. no. SK 44/04, OTK ZU No. 5/A/2005, item 52).
The Constitutional Tribunal emphasised that the only reason why the legislator had decided not to grant the possibility of requesting exemption from court costs to parties to electronic writ-of-payment proceedings was the expeditious pace, or efficiency, of main proceedings – i.e. avoiding interlocutory proceedings that slow down the main proceedings. It is not the first time that the Constitutional Tribunal has stressed that the pace of examining a case is not an absolute value for the sake of which it would be possible to sacrifice the protection of subjective rights. Also, one should bear in mind that cases considered in the course of electronic writ-of-payment proceedings – even if they may often happen to be “minor”, or “not complicated’ in terms of evidence, in comparison to other cases considered by courts – are still of considerable significance for parties to such proceedings (see e.g. – in the context of simplified proceedings, the judgment of 16 December 2008, ref. no. P 17/07, OTK ZU No. 10/A/2008, item 179). At the same time, the efficiency of examining cases may be ensured by means (mechanisms) other than barring recourse to an appellate instance for parties (see e.g. the cited judgment ref. no. P 13/01), whereas such is the actual effect of the challenged provision in the case in the context of which the question of law has been referred to the Constitutional Tribunal in the present case.
An analysis of the literature on the subject and the definite wording of the explanatory notes to the Bill on Court Costs in Civil Cases indicate that the legislator has assumed that a defendant in electronic writ-of-payment proceedings will never end up in a situation where s/he would be required to pay court costs. What the case being examined by the court referring the question of law revealed is that the aforementioned assumption is erroneous. Although the Constitution of the Republic permits that court proceedings are not free-of-charge, it does rule out setting excessive and unavoidable costs of proceedings, which may make it impossible for the individual to assert his/her rights in a court. In the view of the Constitutional Tribunal, the introduction of any provision on the possibility or impossibility of obtaining exemption from court costs should be preceded by much consideration and a diligent analysis of the significance of conflicting interests of individuals versus those of society as a whole (see e.g. the judgment of 30 March 2004, ref. no. SK 14/03, OTK ZU No. 3/A/2004, item 23 and the cited judgment ref. no. SK 21/05). In the case under examination, what was missing was such a thorough analysis, to the detriment of the right to a fair trial, which is fundamental in a democratic state ruled by law.