Information Note on the Court’s case-law 255
Judgment 19.10.2021 [Section III]
Access to court
Domestic court’s continuing failure to assess eligibility for exemption from stamp duty impairing very essence of right of access to court: violation
Facts – The applicant lodged a claim for damages for the loss of his wife’s life after an explosion in an ammunition dismantling facility, and for which he was required to pay stamp duty. Owing to his poor financial situation as a result of his unemployment status, the applicant was unable to pay the high stamp duty, which amounted to one hundred and twenty times the level of his monthly allowance. The applicant’s request for an application form from the State Commission for Legal Aid (“the SCLA”), to seek legal aid in the form of an exemption from the stamp duty payment, was unanswered and his request for an exemption before the domestic courts at first instance was rejected. There are pending proceedings before the Supreme Court.
Law – Article 6 § 1:
The central issue was whether the domestic authorities had carried out an assessment of his financial situation in accordance with the requirements of Article 6, so that the obligation to pay the high stamp duty did not impair the essence of his right of access to a court.
The Court noted the shortcomings in the functioning of the SCLA since its establishment, which had been reported by the Council of Europe monitoring bodies in 2013 and 2014 and highlighted in a letter sent by the Ministry of Justice to the applicant in 2015.
The applicant had also made a request for exemption from stamp duty to the Court of First Instance, which had rejected the request and returned the claim for damages to him without taking a decision on the merits. Despite being in possession of supporting documents from the applicant about his poor financial situation, the Court of First Instance had failed to make an assessment of his personal circumstances in accordance with what appeared to be the clear provisions of the Legal Aid Act. Furthermore, the court appeared to have disregarded the interpretation made by the Constitutional Court in a relevant decision.
The Court took note of the situation prevailing in Albania at the relevant time in respect of which the Council of Europe monitoring bodies had expressed serious concerns, stating that “judges [we]re reluctant to exempt persons with financial constraints from the payment of court fees”. The Court further considered that the amount of stamp duty payable by the applicant had been excessively high in view of the level of monthly allowance he received. The restriction in question had been imposed at the very initial stage of the proceedings.
Following an appeal by the applicant, the Administrate Court of Appeal had quashed the Court of First Instance’s decision and remitted the case to a different bench of the same court. However, owing to a cassation appeal filed by the defendant, namely the Ministry of Defence, the proceedings appeared to have been pending before the Supreme Court since 2018. Consequently, the domestic courts had not yet carried out an individualised assessment of the applicant’s financial situation in order to determine whether he should be exempted from stamp duty. The examination of his claim for damages on the merits was yet to start.
Overall, the applicant’s conduct in making use of the possibilities provided for by domestic law could not be reproached. However, those efforts had been thwarted by the cumulative effect of the shortcomings in the functioning of the SCLA and its failure to adopt the required implementing regulations, the apparent reluctance of national judges to exempt persons with inadequate financial means from the payment of stamp duty, the Court of First Instance’s failure to properly assess his financial situation, and the significant delay in the cassation proceedings on the interim question before the Supreme Court. As a result, the applicant had continued to face uncertainty as regards the prospect of his claim for damages filed in 2011 being examined on the merits.
Conclusion: violation (unanimously).
Article 46: The national courts should ensure, as a matter of urgency, that the applicant’s eligibility for exemption from the payment of court fees was assessed without undue delay. In view of the Legal Aid Act 2017 which repealed the Legal Aid Act 2008, the Court did not consider that any general measures were called for. The implementation of the 2017 Act might, however, be subject to the Court’s review depending, in particular, on the authorities’ capacity to consider applications for legal aid.
Article 41: EUR 7,500 in respect of non-pecuniary damage.