FOURTH SECTION

DECISION

Application no. 13050/02 
by Andrzej LUBERA 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 15 March 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr L. Garlicki, 
 Mr J. Borrego Borrego, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 25 April 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 Andrzej Lubera, is a Polish national who was born in 1968 and currently lives in Sulechów. The respondent 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.  The applicant's invalidity pension and the insolvency proceedings

The applicant became an invalid as a result of a traffic accident caused by a drunk driver. Subsequently, the applicant and the insurer of the driver who had caused the accident – an insurance company Westa – signed an agreement under which Westa agreed to pay the applicant a monthly pension for the rest of his life.

In March 1993 Westa was declared insolvent and the payments of the applicant's pension stopped.

On 4 June 1993 the applicant submitted his claim to the Westa's estate. On 15 May 1996 the applicant was awarded compensation in the amount of PLN 61,766.31.

On 6 March 1997 the insolvency judge dismissed the applicant's claim for payment of the monthly pension as he had not submitted required documents. The judge's decision was published in two national newspapers on 13 March 1997. The time-limit for appealing the decision expired on 27 March 1997 but the applicant failed to lodge an appeal.

On 25 April 1999 the applicant made an application for leave to lodge an appeal out of time but that was dismissed on 31 May 1999 by the Łódź District Court (Sąd Rejonowy).

On 25 June 2001 the applicant lodged a complaint about the decision of 31 May 1999. On 7 July 2001 the Łódź District Court requested the applicant to comply with the formal requirements for lodging a complaint, but the applicant did not reply to the request. On 27 August 2001 the Łódź District Court rejected the applicant's complaint for failure to comply with the formal requirements. The applicant claimed that he had not been served with the court's request to comply with the formal requirements for lodging a complaint.

The applicant did not submit copies of decisions given in the course of the insolvency proceedings.

2.  The monitoring of the applicant's correspondence

In January 2001 the Zielona Góra District Court remanded the applicant in custody on charges of fraud. On 8 November 2001 the Court received the applicant's application form and certain documents posted on 26 October 2001. The envelope in which the application form and the documents were sent bears the following stamps: “259, Received on” (259, Wpłynęło) and a hand-written date: 24.10.01, and “Censored, Zielona Góra Court, date” (Cenzurowano, Sąd Zielona Góra, dnia), a hand-written date: 25.10.01, and an illegible signature.

COMPLAINTS

The applicant complained under Articles 8 and 34 of the Convention about monitoring of his correspondence with the Court. He also alleged, invoking Articles 6 § 1 and 13 of the Convention, that the insolvency proceedings were unfair and that they were not concluded within a reasonable time.

THE LAW

On 24 January 2005 the Court received the following declaration signed by the applicant:

“I note that the Government of Poland are prepared to pay me the sum of PLN 6,000 with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, 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.”

On 14 February 2005 the Court received the following declaration from the Agent of the Government:

“I declare that the Government of Poland offer to pay PLN 6,000 to Mr Andrzej Lubera with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, 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. 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 public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). 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

Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.

Michael O'Boyle Nicolas Bratza 
 Registrar President

LUBERA v. POLAND DECISION


LUBERA v. POLAND DECISION