by Józef FRANKOWSKI
The European Court of Human Rights (Fourth Section), sitting on 15 September 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 30 April 2004,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
The applicant, Mr Józef Frankowski, was a Polish national who was born in 1934 and lived in Jasło. On 11 May 2009 the applicant’s children, Ms M. Bemben and Mr R. Frankowski informed the Registry that the applicant had died and that they wished to pursue the application. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Enforcement proceedings instituted by the applicant
On 12 May 1993 the applicant lodged a claim for payment with the Kraków District Court (Sąd Rejonowy) against four defendants.
On 30 July 1993 the Kraków District Court granted the claim and made an order for payment.
The defendants appealed.
On 29 June 1994 the Kraków District Court gave judgment and upheld its order for payment.
The defendants appealed.
On 23 November 1994 the Kraków Regional Court (Sąd Wojewódzki) dismissed their appeal.
The judgment became final and, on 19 February 1996, the applicant lodged a request to institute enforcement proceedings with the Bailiff of the Kraków District Court (Komornik Sądowy przy Sądzie Rejonowym w Krakowie).
Two sets of enforcement proceedings were carried out on the basis of the Kraków Regional Court’s judgment of 23 November 1994. The first set of proceedings concerned the principal amount adjudged by the court and the second set, the interest payable on the principal amount.
On 30 January 1996 the first set of proceedings was terminated; the Bailiff collected the whole of the principal amount from the debtors.
The second set of enforcement proceedings was still pending.
On 9 April 2007 the bailiff, having collected the amounts due from three debtors, discontinued the proceedings in relation to them.
On the same day the bailiff found that he had no competence to deal with the subject-matter as regards the fourth debtor and transmitted the case to another bailiff in Kraków.
On an unspecified date the applicant appealed against that decision to the Kraków District Court.
On 17 November 2007 the Kraków District Court quashed the bailiff’s decision. The proceedings concerning the fourth debtor are pending before the Kraków Bailiff.
2. Proceedings under the 2004 Act
On 19 February 2007 the applicant lodged a complaint about the excessive length of the two sets of enforcement proceedings with the Kraków Regional Court.
On 17 May 2007 the Kraków Regional Court dismissed the applicant’s complaint.
It held that it could examine only the length of proceedings which had occurred after the date of entry into force of the 2004 Act, i.e. after 17 September 2004. Therefore, the court did not examine the first set of the enforcement proceedings which terminated in 1996 or the second part of the enforcement proceedings in relation to three debtors, holding that the proceedings against them had been discontinued on 9 April 2007.
The court found also that the applicant had appealed against the decision to transmit the case file to another bailiff and that the Kraków Regional Court had found the appeal well-founded and quashed the bailiff’s decision. However, it held that it could examine only the length of proceedings which had been conducted by the court (and the applicant did not complain about that) and that it could not refer to previous stages of proceedings, discontinued by the bailiff. Referring to the fourth debtor, in relation to whom the proceedings were still pending, the court held that the complaint about length of proceedings was ill-founded. It found that other enforcement proceedings had been carried out against that debtor for the benefit of the Social Insurance Board (Zakład Ubezpieczeń Społecznych) and that the applicant “had not lodged a complaint about inactivity of the bailiff”.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński 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.
The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings.
On 30 June 2009 the Court received the following declaration signed by the applicant’s heirs:
“We, Monika Bemben and Radosław Frankowski, heirs of the deceased applicant, Mr Józef Frankowski, note that the Government of Poland are prepared to pay us jointly the sum of PLN 16,000 (sixteen 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 and 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.
We accept the proposal and waive any further claims against Poland in respect of the facts giving rise to this application. We declare that this constitutes a final resolution of the case.”
On 13 July 2009 the Court received the following declaration from the Government:
“I, Jakub Wołąsiewicz, Agent of the Polish Government, declare that the Government of Poland offer to pay PLN 16,000 (sixteen thousand Polish zlotys) jointly to Mr Józef Frankowski’s heirs, Ms Monika Bemben and Mr Radosław Frankowski 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 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.”
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 strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President