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OLSZEWSKA v. POLAND - 13024/05 [2007] ECHR 1113 (18 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1113.html
Cite as:
[2007] ECHR 1113
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FOURTH
SECTION
CASE OF OLSZEWSKA v. POLAND
(Application
no. 13024/05)
JUDGMENT
STRASBOURG
18
December 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Olszewska v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr K. Traja,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 27 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 13024/05) against the
Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Polish national, Ms Halina
Olszewska (“the applicant”), on 23 March 2005.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
On
3 October 2006 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings to
the Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time. It also gave priority to the
application, pursuant to Rule 41 of the Rules of the Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1929 and lives in Białystok, Poland.
In
1940 the applicant's father had been arrested by NKVD (Soviet
People's Commissariat for Internal Affairs) and was sent with his
family to Kazakhstan. The applicant's mother died in 1940 and her
father died in London in 1967. In 1946 the applicant and her siblings
returned to Poland.
On
6 October 1948 the property belonging to the applicant's parents was
taken over by the State.
In
1990 the applicant and her sister were designated jointly as their
father's heirs.
On
29 November 2001 the applicant applied to the Podlaski Governor
(Wojewoda Podlaski) to have the 1948 decision annulled and her
parents' property returned to her. The case was transferred to the
Ministry of Agriculture for consideration.
Subsequently,
the applicant wrote to the Minister and other authorities complaining
that the property had not been returned to her.
On
28 November 2003 she complained to the Minister about his inactivity.
As she received no reply to her complaint, on 5 December 2003
the applicant, represented by a lawyer, lodged a complaint about the
Minister's inactivity with the Supreme Administrative Court (Naczelny
Sąd Administracyjny).
Following
her complaint, on 5 January 2004 the Supreme Administrative Court
requested the Minister to provide it with the case file within thirty
days. It appears that the Minister did not comply with this order.
However, the Minister started examining the merits of the applicant's
case and made several requests to various authorities asking them for
documents.
On
20 May 2004 the Warsaw Regional Administrative Court (Wojewódzki
Sąd Administracyjny), to which the case was transferred,
informed the applicant that despite its repeated requests the
Minister had not complied with the order to provide the case file.
The applicant was advised that she could therefore apply for a fine
to be imposed on the Minister.
On
4 June 2004 the Minister gave a decision in which he stayed the
proceedings. The applicant lodged an appeal in which she asked for
the decision to be reconsidered and the proceedings to be resumed.
On
23 June 2004 the applicant followed the Regional Administrative
Court's advice and applied to have a fine imposed on the Minister.
On
3 August 2004 the Warsaw Regional Administrative Court dismissed the
applicant's complaint about the Minister's inactivity. The court
found that since the Minister had stayed the proceedings the
inactivity had ceased to exist. The applicant's lawyer lodged a
cassation appeal against this decision with the Supreme
Administrative Court. However, it was rejected on 8 October 2004 as
the applicant's lawyer failed to pay court fees for the appeal.
After
the decision of 3 August 2004, the applicant withdrew her application
for the imposition of a fine, and on 17 September 2004 the
Warsaw Regional Administrative Court discontinued the relevant
proceedings.
On
6 April 2005 the Minister resumed the proceedings.
On
18 November 2005 the Minister of Agriculture gave a decision. He
annulled the 1948 decision and returned a part of the property to the
applicant.
On
7 December 2005 the Doroszki Agriculture Co-operative, which has been
using the land in question, joined the proceedings as a party and
lodged an appeal against the decision.
On
22 May 2006 the Minister upheld its decision of 18 November 2005. The
Doroszki Agriculture Co-operative lodged an appeal against the
decision.
On
11 October 2006 the Regional Administrative Court gave a judgment. It
quashed the impugned decision of 22 May 2006 finding that the
co-operative had no standing in the proceedings. The Doroszki
Agriculture Co-operative appealed.
The
proceedings are pending before the Supreme Administrative Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Under
Article 35 of the Code of Administrative Procedure (“the Code”)
of 1960 an administrative authority should give a decision on the
merits of a case within two months. If this time-limit has not been
complied with, the authority must, under Article 36 of the Code,
inform the parties of that fact, explain the reasons for the delay
and fix a new time-limit.
A
party to administrative proceedings may make a complaint under
Article 37 of the Code in order to urge the relevant administrative
authority to issue a decision within the time-limits fixed in the
Code. Moreover, in cases where an authority persistently failed to do
so, a party could lodge, under sections 17, 26 and 30 of the
Supreme Administrative Court Act 1995 (“the 1995 Act”) as
in force at the material time, a complaint with the Supreme
Administrative Court against the authority's failure to give a
decision.
In
cases where allegations of inactivity were well-founded, the Supreme
Administrative Court could oblige that authority to issue a decision.
Pursuant to section 30 of the Act, the decision of the Supreme
Administrative Court ordering an authority to put an end to its
inactivity was legally binding on the authority concerned. If the
authority did not comply with the decision, the court could, under
section 31 of the 1995 Act, impose a fine on it. It also could itself
give a ruling on the merits of the administrative case.
As
of 1 January 2004 the 1995 Act was replaced by the Act on Proceedings
before Administrative Courts of 30 August 2002 which provides for
similar remedies.
On
15 May 2000 the Supreme Administrative Court gave a judgment in a
case IV SAB 143/99 in which it held as follows:
“No matter how substantive was the delay in
dealing with the case, a decision to stay the administrative
proceedings means that the inactivity of an authority ceases to exist
and that the [Supreme Administrative Court] cannot allow a complaint
about the inactivity and order the authority to issue a decision
within a given time-limit.”
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 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 LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government contested that argument.
The
period to be taken into consideration began on 29 November 2001 and
has not yet ended. It has thus lasted so far almost 6 years.
A. Admissibility
The
Government submitted that the applicant had not exhausted remedies
available under Polish law in respect of excessive length of
administrative proceedings. They argued that the applicant had a
possibility of lodging with the Polish civil courts a claim for
compensation for damage caused by the excessive length of the
administrative proceedings before the Minister of Agriculture under
Article 417 of the Civil Code. The Government also submitted that the
applicant had failed to lodge an appeal with the Supreme
Administrative Court against the decision of 3 August 2004 of the
Regional Administrative Court.
The
applicant did not comment on those arguments.
The
Court first notes that it has already examined whether after
18 December 2001 a compensation claim in tort as provided for by
Polish civil law was an effective remedy in respect of complaints
about the length of proceedings. It held that no persuasive arguments
had been adduced to show that Article 417 of the Civil Code could at
that time be relied on for the purpose of seeking compensation for
excessive length of proceedings or that such action offered
reasonable prospects of success (see, Małasiewicz v. Poland,
no. 22072/02, §§ 32-34, 14 October 2003, and for
administrative proceedings Boszko v. Poland, no. 4054/03,
§ 35, 5 December 2006). The Court sees no grounds on which
to depart from these findings in the present case.
Secondly, the Court notes that the applicant lodged a
complaint about the inactivity of the Minister of Agriculture in
accordance with the domestic law (see paragraph 10 above). The
complaint was dismissed by the Regional Administrative Court on 3
August 2004. This remedy was considered by the Court as designed to
accelerate the process of obtaining an administrative decision
enabling the applicant to put the issue of the length of the
proceedings in question before the national authorities and to seek a
decision terminating those proceedings “within a reasonable
time” (see Bukowski v. Poland
(dec.), no. 38665/97, 11 June 2002,
Mazurek v. Poland (dec), no. 57464/00, 7
September 2004 and Kołodziej v. Poland
(dec), no 47995/99, 18 October 2005).
The
Court also notes that the applicant failed to appeal against the
Regional Administrative Court's decision of 3 August 2004 in
compliance with procedural requirements. However, as explained by the
Regional Administrative Court in the reasoning of its decision
dismissing the applicant's complaint about inactivity, since the
administrative proceedings had been stayed by the Minister, the
inactivity of the Minister ceased to exist and the court could not
oblige him to give a decision within a new time-limit. This
interpretation of the domestic law reflects the case-law of the
Supreme Administrative Court (see paragraph 27 above). The Court
further notes that the Government's objection is confined to a mere
statement that the applicant should have nevertheless lodged a
complaint with the Supreme Administrative Court without any argument
as to whether such complaint could possibly succeed. The Court
reiterates that Article 35 § 1 of the Convention, which
sets out the rule on exhaustion of domestic remedies, provides for a
distribution of the burden of proof. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant's
complaints and offered reasonable prospects of success (see Selmouni
v. France [GC], no. 25803/94, § 76, ECHR
1999-V and Mifsud v. France (dec.), no. 57220/00,
§ 15, ECHR 2002-VIII). In the particular circumstances of
the case, regard being had to the above-mentioned case-law of the
Supreme Administrative Court, the Court finds that the Government's
objection has not been substantiated.
The
Court concludes that, having exhausted the available remedy provided
by domestic law, the applicant was not required to embark on another
attempt to obtain redress by bringing a civil action for
compensation. Accordingly, for the purposes of Article 35 § 1
of the Convention, the applicant has exhausted domestic remedies. For
these reasons, the Government's plea of inadmissibility on the ground
of non-exhaustion of domestic remedies must be dismissed.
The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
considers that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Taking into account what was at stake for the applicant in the
domestic proceedings and her age, almost six years of proceedings to
obtain redress must be considered a very considerable period (see
Hałka and Others v. Poland, no. 71891/01, § 37,
2 July 2002). Having regard to its case-law on the subject, the Court
considers that in the instant case the length of the proceedings was
excessive and failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 1,000,000 Polish zlotys (PLN) in respect of
pecuniary and PLN 150,000 for non-pecuniary damage.
The
Government contested these claims and considered them exorbitant.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards her 3,000 euros (EUR) under that head.
B. Costs and expenses
The
applicant also claimed PLN 2,000 for the costs and expenses incurred
before both the domestic courts and the Court.
The
Government contested the claims and submitted that only costs
actually incurred by the applicant before the Court should be taken
into consideration.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings and considers it
reasonable to award the applicant, who was not represented before the
Court by a lawyer, the sum of EUR 100 for the proceedings before
the Court.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the remainder of the application
admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros) in respect of non-pecuniary damage and EUR 100
(one hundred euros) for costs and expenses, to be converted into
Polish zlotys at the rate applicable at the date of settlement, plus
any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
