Background
While serving a prison sentence, Tamara Nekrasova brought civil proceedings in 2017 seeking, principally, termination of a mortgage contract and recognition of another person’s ownership of related property. The trial court had approved her participation by video link, but the connection to the detention facility was not established. It heard the case in her absence and dismissed her claim. Nekrasova and her lawyer later took part in appellate proceedings, but the appellate court upheld the dismissal.
In January 2019, the Supreme Court refused to examine her cassation appeal because she had not paid a court fee of 2,560 Ukrainian hryvnias, then about EUR 80. It also refused her request to defer payment. Nekrasova had submitted a detention-facility certificate showing no income during eight months of detention and stated that she had received no income since her detention began in 2012.
The Court’s Holding
The Court unanimously held that Ukraine violated Article 6 § 1 by denying Nekrasova practical and effective access to the Supreme Court. Although a State may impose court fees and Article 6 does not require a cassation court, any existing court of cassation must be accessible in a manner compatible with the Convention.
The Supreme Court’s conclusory finding that Nekrasova had provided insufficient reasons and evidence for deferral was not sufficiently persuasive. Her evidence and explanation indicated that she lacked income, and the court gave no guidance on what further material it required. The refusal was therefore excessively formalistic. The Court rejected the Government’s objection that she had suffered no significant disadvantage, awarded EUR 1,500 for non-pecuniary damage and EUR 57 for Strasbourg costs, and rejected the remaining claims.
Key Takeaways
- A court-fee requirement may violate Article 6 when its application unjustifiably prevents a person from obtaining review.
- Courts deciding fee-waiver or deferral requests must give a sufficiently reasoned assessment of evidence of inability to pay.
- The complaint about the failed first-instance video hearing was inadmissible because the applicant had not shown that her personal presence was necessary and she could present her case on appeal.
Why It Matters
The judgment underscores that procedural requirements cannot be applied mechanically where a detained litigant presents credible evidence of indigence. A relatively modest fee can still impair the essence of the right of access to court if the person has no demonstrated means to pay it.
For litigants and counsel, the case also distinguishes an access-to-court defect from an alleged inability to attend one hearing: later appellate participation and meaningful opportunities to make submissions may cure the latter, but not an unjustified refusal to entertain a cassation appeal.