Does the creditor bear the costs of bringing and arresting the debtor?

Service

Polish courts require creditors to pay for the costs of bringing and arresting the debtor. However, do they have the right to do so, or do they unjustifiably impose such an obligation on their creditors?

This problem was discussed in Art. 916 of the Code of Civil Procedure. According to which, the court has the right to sentence the debtor to a fine or order compulsory removal. He may also impose a punitive measure in the form of detention in the event of refusal to testify or take an oath, but it may not last longer than a month.

Accordingly, it is undisputed that the costs of arrest in this situation are covered by the state budget and not by the parties between whom the dispute is ongoing. Consequently, the costs of arresting a debtor who refuses to submit an inventory of assets should be borne by the Treasury and not by the creditor.

The courts probably refer to the previous wording of Art. 916 §1 of the Code of Civil Procedure, which referred to the provisions on the enforcement of non-pecuniary benefits. According to which the debtor is to cover the costs of arrest from his income. The creditor should provide the bailiff in advance with the amount necessary to bring the debtor to custody and to feed him during detention. If the creditor is exempted from court costs, the above fees do not apply to him.

However, in accordance with the Regulation of the Minister of Justice of 13 January 2004 on administrative activities related to the performance of pre-trial detention and penalties and coercive measures resulting in deprivation of liberty and the documentation of these activities, it still provides that the debtor may be placed in custody upon payment by the authority leading to the payment necessary to feed the debtor for the duration of the arrest. The payment does not have to be paid in cash. It is enough to have a document confirming the payment for this purpose. However, in a situation where the creditor is exempt from court costs, a copy of the decision confirming this should be presented.

As can be seen from the above, the legislator changed Art. 916 § 1 of the Code of Civil Procedure, but this modification was not included in the regulation. Therefore, the currently applicable provisions are contradictory in this respect. On the other hand, this discrepancy should be considered in favor of the creditor, so he should not bear the said costs. This is because it is required by the principles of legal interpretation.