FOURTH SECTION

DECISION

Application no. 23952/05 by Mieczysł aw TOKAJ against Poland

The European Court of Human Rights (Fourth Section), sitting on 8 July 2008 as a Chamber composed of:

Giovanni Bonello , President, Lech Garlicki , Ljiljana Mijović , David Thór Björgvinsson , Ján Šikuta , Päivi Hirvelä , Mihai Poalelungi , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 21 June 2005,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention) ,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mieczyslaw Tokaj , is a Polish national who was born in 1960 and lives in Sułoszowa . The Polish Government (“the Government”) were represented by Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 19 November 2002 the applicant lodged with the Tychy District Court a request for a payment order to be made against M.T. following non ‑ adversarial simplified proceedings ( postÄ™powanie nakazowe ) . On 31 January 2003 the court issued the order and allowed his claim in full. It was served on the applicant on 10 March 2003.

On 14 March 2003 the debtor lodged with the same court his objection to the making of the order.

On 9 October 2003 the court gave a judgment by which it again allowed the applicant ’ s claim. Subsequently, the applicant instituted enforcement proceedings against the debtor. It was established during these proceedings that the real estate on the strength of which he wanted to have his claim satisfied was co ‑ owned by the debtor and his wife.

On 9 March 2004 he requested the Tychy District Court to issue an enforcement warrant against the debtor ’ s wife in respect of certain of her assets.

On 7 April 2004 the applicant submitted a similar request to the same court concerning different assets.

In the meantime, the applicant requested the court to issue security orders in respect of his claim. The request was refused by a decision of 29 June 2004. On 5 July 2004 the applicant appealed against this decision. The refusal was upheld on 13 December 2004. The decision was served on the applicant on 3 January 2005.

The enforcement warrant against the debtor ’ s wife was issued on 3 March 2005.

1. First set of proceedings instituted under the provisions of the 2004 Act

On 11 October 2004 the applicant lodged with the Katowice Regional Court a complaint under the provisions of the Act of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”). He emphasised that the failure of the court to issue speedily the enforcement warrant following his first request of 9 March 2004 had enabled the debtor to dispose of his assets to the applicant ’ s detriment.

In a decision of 24 December 2004 the court rejected the complaint insofar as it concerned the proceedings on the merits of the case. Those proceedings had ended in October 2003, which was before the entry into force of the 2004 Act. However, it found that the proceedings in which the applicant had tried to secure the execution of the judgment by requesting the enforcement warrant and a security order had been conducted in breach of his right to a hearing within a reasonable time. It took the court seven months to examine the request for the security order. This was clearly not in compliance with the purpose of enforcement proceedings, namely to prevent the creditor from acting to the debtor ’ s detriment by disposing of his or her assets. However, this failure to act speedily had been caused by the court ’ s difficult staffing situation at the material time. The applicant ’ s request for an award of PLN 10,000 was dismissed.

2. Second set of proceedings instituted under the provisions of the 2004 Act

On 12 November 2004 the applicant lodged with the Katowice Regional Court a further complaint under the provisions of the 2004 Act. He emphasised that the court ’ s failure to issue speedily the enforcement warrant in respect of his first request of 9 March 2004 had enabled the debtor to dispose of his assets to the applicant ’ s detriment.

In a decision of 7 February 2005, served on the applicant on 7 February 2005, the court found, on grounds similar to those relied on in its decision of 24 December 2004, that the enforcement proceedings had been conducted in breach of the applicant ’ s right to a hearing within a reasonable time. The applicant ’ s request for an award of PLN 10,000 was likewise dismissed.

B. Relevant domestic law

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postÄ™powaniu sÄ…dowym bez nieuzasadnionej zwÅ‚oki ) (“the 2004 Act”), are stated in the Court ’ s decisions in the cases of CharzyÅ„ski v. Poland no. 15212/03 ( dec .), §§ 12 ‑ 23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 ( dec .), ECHR 2005 ‑ VIII and the judgment in the case of Krasuski v. Poland , no. 61444/00, §§ 34 ‑ 46, ECHR 2005 ‑ V.

COMPLAINT S

The applicant complain ed under Article 6 § 1 of the Convention that the civil proceedings in his cases were not conducted within a reasonable time.

The applicant further complained under Article 13 of the Convention that he did not have any effective remedy at his disposal because even though the courts had found his length of proceedings complaint justified, they refused to make an award of compensation as provided for by the 2004 Act.

THE LAW

On 19 May 2008 the Court received the following declaration from the Government:

“I declare that the Government of Poland offer to pay PLN 7,000 (seven thousand Polish zlotys) to Mr Mieczysław Tokaj 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 a ny taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 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. ”

On 28 May 2008 the Court received the following declaration signed by the applicant:

“ I, Mieczysław Tokaj , note that the Government of Poland are prepared to pay me the sum of PLN 7,000 (seven thousand Polish zlotys) 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. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 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 giving rise to this application. I declare that this constitutes a final resolution of the case. ”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 and to strike the case out of the list.

For these reasons, the Court unanimously

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

Lawrence Early Giovanni Bonello Registrar President