FOURTH SECTION

CASE OF LORENC v. POLAND

(Application no. 28604/03)

JUDGMENT

STRASBOURG

15 September 2009

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 Lorenc v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
	Nicolas Bratza, President,
	Lech Garlicki,
	Giovanni Bonello,
	Ljiljana Mijović,
	David Thór Björgvinsson,
	Ledi Bianku,
	Mihai Poalelungi, judges,
and Fatoş AracıSection Registrar,
Having deliberated in private on 25 August 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the  of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by .
2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  On  the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1946 and lives in Jarocin.
A.  Background of the case
5.  The applicant's relative – a certain W.W. – owned the Jarocin Furniture Factory, registered under numbers: no. 87/1 and 87/2 with a surface area of 4,955 square metres. By an administrative decision of 11 January 1955 of the Board of the Poznań National Council (Prezydium Rady Narodowej) the factory and the adjacent land were expropriated.
The applicant is one of the heirs of the owner of that property.
B.  Administrative proceedings for restitution of the property
6.  On 12 Starosta
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13On 27 December 2002 her complaint was referred to the Wielkopolski Governor.
14if the
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C.  Administrative proceedings to declare the expropriation decision null and void
16.  On 6 August 2001 the applicant lodged an application with the  for a declaration that the expropriation decision of 11 January 1955 was null and void.
17.  By a decision of 9 May 2002 the President of the  refused to institute the administrative proceedings, since the applicant had failed to produce the relevant documents in support of her claim. The applicant made an application for reconsideration of the matter.
18.  On 30 July 2002 the President of the  quashed his decision of 9 May 2002.
19.  On 30 May 2003 the President of the 
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23that it would not be possible to conclude the proceedings within the time-limit specified in Article 35 of the Code of Administrative Procedure due to the need to undertake further examination of the application
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25requested to accelerate the proceedings and to schedule an administrative hearing in the case.
26.  On 26 April 2006 the Ministry of  and informed the applicant that it would not be possible to conclude the proceedings within the time-limit specified in Article 35 of the Code of Administrative Procedure
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29.  On 18 December 2006 the Ministry of Construction informed the applicant that it would not be possible to conclude the proceedings within the time-limit specified in Article 35 of the Code of Administrative Procedure due to the need to establish the current address of one of the parties to the proceedings. The applicant was further informed that 
30.  By a decision of 28 April 2008 the Minister of Infrastructure refused to declare the expropriation decision null and void.
31.  On 23 May 2008 the applicant lodged an application for reconsideration of the matter.
32.  On 22 July 2008 the applicant was informed by the Minister of Infrastructure that it would not be possible to conclude the proceedings within the time-limit specified in Article 35 of the Code of Administrative Procedure and that 
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II.  RELEVANT DOMESTIC LAW AND PRACTICE
34.  The relevant domestic law concerning the remedies for the inactivity of the administrative authorities at the material time is set out in the Court's judgment in the case of Grabiński v. Poland, no. /02, §§ 60-65, 17 October 2006.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
35.  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...”
36.  The Government contested that argument.
37.  In relation to the proceedings for restitution of the property, the period to be taken into consideration began on 12 April 2001 and has not yet ended. It has thus lasted over 8 years and 1 month, for two levels of jurisdiction.
38.  As regards the proceedings to declare the expropriation decision null and void, the period to be taken into consideration began on 6 August 2001 and has not yet ended. It has thus lasted some 7 years and 9 months for two levels of jurisdiction.
A.  Admissibility
39 .  The Government submitted that the applicant had not exhausted remedies available under Polish law. They maintained that she had not lodged a complaint about inactivity on the part of the authority obliged to issue a decision with the Supreme Administrative Court.
40.  The applicant contested the Government's arguments.
41.  The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see the Aksoy v. Turkey judgment of 18 December 1996, 1996-VI, pp. 2275–76, §§ 51–52).
42.  The Court notes that the applicant several times lodged complaints about inactivity on the part of the (see paragraphs 7, 13, 24 and 27 above). The competent supervisory bodies often found the complaints well-founded, ordered that the proceedings be accelerated and apologised for the delay (see paragraphs 26 and 28 above). The remedy the applicant used was therefore adequate and sufficient to afford her redress in respect of the alleged breach. In consequence, the Court does not consider that the applicant should have lodged a further complaint about inactivity with the Supreme Administrative Court in order to fulfil her obligation under Article 35 § 1.
43.  The Court also reiterates that, although Article 35 § 1 requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, it does not require that, in cases where the national law provides for several parallel remedies in various branches of law, the person concerned, after an attempt to obtain redress through one such remedy, must necessarily try all other means (see, , (dec.), no. 33310/96, 7 June 2001; , no. 38049/02, §§ 32-39, 8 November 2005).
44.  Accordingly, the Court concludes that, 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.
 45.  The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
46.  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).
47.  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).
48.  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. Having regard to its case-law on the subject, the Court considers that in the instant case the length of both sets of 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
49.  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
50.  The applicant claimed 15,000 euros (EUR) in respect of non‑pecuniary damage.
51.  The Government did not express an opinion on the matter.
52.  The Court considers that the applicant must have sustained non‑pecuniary damage. Ruling on an equitable basis, it awards her EUR 5,000 under that head.
B.  Costs and expenses
53.  The applicant also claimed a lump sum of EUR 6,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.
54.  The Government did not express an opinion on the matter.
55.  According to the Court's case-law, an applicant is entitled to the reimbursement of 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 sum of EUR 800 for the proceedings before the Court.
C.  Default interest
56.  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
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of both sets of proceedings;

3.  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 5,000 (five thousand euros) in respect of non-pecuniary damage and EUR 800 (eight hundred euros) in respect of costs and expenses, plus any tax that may be chargeable, to be converted into Polish zlotys at the rate applicable at the date of settlement;
(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;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 15 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Nicolas Bratza	Deputy Registrar	President