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58 Janusz Jankowski

expressis terbu in Art. 45 sec. 1 and in Art. 77 sec. 2. Tbc constitutionj] right to a court hcaring consists. in parttcular. of the followmg:

1)    right of acccss to court, i.c. right of initiating a procedurę beforc the court a body dislinguishcd by spccific charactcristics (competent. im partu; and independent);

2)    right to a fair, just and transparent trial;

3)    right to a judgar.cnt. i.c. right to obuun a binding court dccision i¹ a given casc.¹

The broad naturę of access to juslicc (access to a court hcaring) a narrowed in the titlc of this study to the issues of the influence of the cosa of proccedings and legał aid on this acccss Thesc issues will be the subjec of our consideniuons.

Pursuant to Art 45 of the Constitution of the Republic of Polaod, cveryonc has the right to a court hcaring. According to Art. 77 sec. 2 ct the Constitution. tfatutes cannot bar recourse by any person to the coum in pursuit of daitns allcging infringement of freedoms and rights. Notwńb standing these assurances contamcd in the highest legał aa, it has bca pomted out by tbc judicaturc that until recently there were no cohcrcnt and systemie regulation conceming the manner of proper implcmentation of these obligations and guidelines into court proceedings.⁵ At present. thesc shorteo-mings are gradually and partialiy rcmoved, which will bc discusscd latcr. Tha constitutcs the fulfdmcnt of Recommendation No. R (93) of the Committee of Ministcrs of the Counctl of Europę to Member States on cflectivc acces to the law and to justice for the very poor (adopted on 8 January 1993 a tbc 484"¹ meeting of the Minister¹' Deputics). In Scction Ic it is rccomraen-ded that the Member States fadlitatc access to the law for such persons (“tht right to the protcction by the law'¹), among others, via defraying the cost d legał advice for the vcry poor through legał aid. whilc in Section 3c - thr. they facilitate clTcctivc access to the courts for the very poor by rcoognisin| the right to be assisted by an appropriate counscl, as far as possiblc of ooe't choicc, who will rcccivc adcquatc ronuneration. Paragraphs 6 and 7 of the Explanatory Memorandum to the Rccommcndation point out that lcg£ advice and legał aid systems perform a vital function in respeet of the cffective cnjoymcnt of rights and the right of acccss to the system of justia for all member¹ of the puMic. not only the vcry poor. The document aho States that thesc problcms “arc not only a matter of sodal justice or naiiou) policy, but also fali withm the sphere of human rights and fundamenta! freedoms.'¹

According to § 9 of the Memorandum, legał aid should be vcry broad in scope. It should covcr not only IcgaJ aid in tbc rensc of complctc or partial exemption from payment of the cost of court procccdings and the assistancc of a lawycr at liillc or no cost. but also any frcc legał assistancc provided in the form of infonnation. advice. racdialion, etc., whether as part of judidal or quasi-judicial proceedings 1 hc Stccring Committee for liuman Rights (CDI)ll) is of the opimon that the right to choosc onc’s own couascl by the vcry poor must be cicrciscd frccly.

I shall start discussing the issues of acccss to justice from the point of view of the influence of the costs of procccdings and legał aid on this access from outhning the issuc of the costs, then I shall proceed to the problem of legał aid.

Tbc costs of dvil proceedings indudc the foliowing: court fees incurrcd by the partics to the proceedings in favour of the State Trcasury, costs fdated to legał representation and costs relatod to the aaivity of partiopants in the procccdings *

The problems of court fees have been rcccntly rcgulatcd cntircly anew under the Act of Juły 28, 2005 on court costs in civil cascs.^ł

Court costs inelude fees and espenses (Art. 2 of the Act on court costs in dvil cases). Fccs arc paid for writs submitted to the court. and particulariy an action, an appcal, a płaint, a cassation appeał, a bankruptcy pctition and others (Art. 3 of the Act). There are somc ways of dctcrmimng the anount of fcc in a given case:

1)    In cases involving property nghts, the amount of fcc is conditional upon the value of object of litigation and amounts to 5% of the valuc (proportional fcc). The costs of procccdings are lowered in this case, as prcviously the fee (cullcd the flling fcc) amounted to 8% of the valuc of object of litigation. If a writ is filed in a case involving estate whcrc it is impossible to determinc the valuc of object of litigation at the moment of ioitiating it. the presiding judge establishes an interim fcc of PLN 30 to 1000.

2)    In cases not involving estate and in somc estate cases indicatcd in the Act. a fixcd fee is diarged which cannot be lower than PLN 30 and higher than PLN 5000; e.g. for a divorcc pctition - PLN 600, for a pctition for dissolution of company or expulsion of shareholdcr - PLN 2000. an action invotving environmcnt protection PLN 100. Introducing fixed fees on a widcr scalę is morę favourablc sińce per saldo they arc lower than the proportional ones.

3)    If applicabłc Icgislation docs not providc any proportional. fixed or interim fcc. a basie fcc of PLN 30 is chargcd. The basie fcc is also chargcd

•W Kr on i rwie Z. Postępowanie cywilne » jarysie (An ovvo W» of the Q>d Croeecdiniuj. t* tamę, Winnw 2005. p. 90.

’ J of I. No. 167. uae I3M Bffcctta (toa Marek 2. 2006

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   Krom the tfatcmcni of reatooi lo the lodgmcnl by the (.ocMitulJona] tnboołl of luee ?. 1998. K 2¹/97. OTK 7.11 1998,4 nem SO

*    IbuUm