BUKOWSKI proti Polsku

FOURTH SECTION

DECISION

Application no. 71150/01
by Wiesław BUKOWSKI
against Poland

The European Court of Human Rights (Fourth Section), sitting on 16 May 2006 as a Chamber composed of:

Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 10 February 2001,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together;

Having regard to the formal declarations accepting a friendly settlement of the case;

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Wiesław Bukowski, is a Polish national who was born in 1942 and lives in Warszawa. The respondent Government are represented by Mr Jakub Wołąsiewicz, the Government’s Agent.

The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows:

The applicant was involved in civil proceedings for payment of a debt, lasting from 1986 to 1994. On 26 April 1994 the Warsaw District Court delivered a judgment awarding the applicant 5.681 PLN with legal interest from 1986 amounting to 33.843 PLN.

During the proceedings the applicant’s lawyer had repeatedly made applications to the court to secure the payment of the debt but his motions were refused upon the debtor’s assurance of his solvency.

1. Enforcement proceedings

The applicant instituted enforcement proceedings in 1994. The bailiff could not find the debtor’s car and the debtor’s bank accounts seized by the bailiff were without funds.

Therefore, on 21 April 1995 the applicant lodged a motion for an affidavit of assets of the debtor. There is no information regarding the bailiff’s activity until 2001.

In June 2001 the bailiff seized the debtor’s car.

The debtor filed a motion to stay the execution, claiming that in the event that the car was sold he would suffer a great loss.

The District Court stayed the execution in respect of the car and stayed the enforcement of the judgment of 26 April 1994. Thus, the bailiff was no longer entitled to proceed with the case.

The applicant submits that the judge deciding on the case was the same judge who had not properly obtained an affidavit of assets in January 2001 (see below).

2. Proceedings for an affidavit of assets

On 21 April 1995 the applicant lodged a motion for an affidavit of assets of the debtor with the Warsaw District Court.

The debtor failed to attend the court hearings on 16 July 1996 and 26 September 1996 and did not submit the affidavit.

No hearings took place until 16 June 2000, after the applicant had lodged several complaints with the President of the District Court. The proceedings were taken up and a fine was imposed on the debtor.

On 10 January 2001 the debtor attended the hearing but refused to submit an affidavit. The court obliged him to do so by 12 January 2001.

On 12 January 2001 the Warsaw District Court closed the proceedings. The debtor testified that he did not possess any kind of property, did not work anywhere and lived on his savings.

Subsequently, as the applicant found the debtor’s affidavit dishonest, on 29 January 2001 he lodged a notification of the commission of an offence.

The District Prosecutor discontinued the criminal proceedings on 21 May 2001 on the ground that the District Court had not properly obtained an oath from the debtor and had failed to instruct the debtor about his criminal responsibility, with the consequence that he could not be held criminally liable for making a false statement.

The Prosecutor’s decision was upheld by the District Court on 1 October 2001.

Therefore, on 8 October 2001 the applicant again requested that a relevant affidavit be made.

On 4 August 2003 the District Court returned the applicant’s motion. According to the applicant’s submissions, he was summoned by the court to submit an original document confirming his enforcement title with a writ of execution, which was in the possession of the bailiff. The applicant claims that the bailiff did not reply to his repeated requests to give the document back to him and his complaints about the actions of the bailiff have not been examined.

COMPLAINT

The applicant complained under Article 6 of the Convention about the excessive length of the proceedings in his case and about the impossibility to enforce the court judgment of 1994.

THE LAW

On 21 October 2005 the Court decided to communicate the application to the Government

On 9 March 2006 the Court received the following declaration signed by the applicant:

“I, Wiesław Bukowski, note that the Government of Poland are prepared to pay me the sum of 10.000 Polish zlotys with a view of securing a friendly settlement of the above mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and it will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 (b) of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Poland in respect of the facts of this application. I declare that this constitutes a final resolution of the case.”

On 18 April 2006 the Court received the following declaration from the Government:

“I, Jakub Wołąsiewicz, Agent of the Government before the ECHR, declare that the Government of Poland offer to pay 10.000 Polish zlotys to Mr Wiesław Bukowski with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and it will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 (b) of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

The Court takes note of the agreement reached between the parties (Article 39 of the Convention). It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).

Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.

For these reasons, the Court unanimously

Declares to discontinue the application of Article 29 § 3 of the Convention;

Decides to strike the application out of its list of cases.

Michael O’Boyle Nicolas Bratza
Registrar President