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KORCZ v. POLAND - 33429/07 [2009] ECHR 1398 (29 September 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1398.html
Cite as:
[2009] ECHR 1398
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FOURTH
SECTION
CASE OF KORCZ v. POLAND
(Application
no. 33429/07)
JUDGMENT
STRASBOURG
29
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 Korcz 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,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 8 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 3429/07) 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 Maria Korcz
(“the applicant”), on 20 July 2007.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
On
10 November 2008 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
The
applicant was born in 1937 and lives in Poznań.
A. Background of the case
5. By
an administrative decision of 29 June 1978 of the Head
of the Dominowo District (Naczelnik Gminy) the real estate
owned by the applicant’s husband was transferred to his son –
S.K. Neither the applicant’s husband nor the applicant was
informed by the authorities about this decision.
In
1990 the applicant’s husband died in a car accident.
B. Administrative proceedings for retrospective leave
to appeal
On
11 February 1999 the applicant filed a request with the Commune
Office (Urząd Gminy) for retrospective leave to appeal
against the decision of 29 June 1978.
On
23 February and 17 March 1999 the applicant was informed by the Mayor
of the Dominowo Commune (Wójt Gminy) that her request
had been left without consideration.
On
22 March 1999 she complained to the Head of the Commune Council
(Przewodniczący Rady Gminy) about the fact that her case
had been left without consideration and that no decision had been
taken on it. She did not receive any answer.
On
14 January 2001 the applicant repeated her request for retrospective
leave to appeal against the decision of 29 June 1978.
On
6 December 2000 the Commune Office (Urząd
Gminy) informed the applicant
that her request could not be dealt with since the case file had been
sent to the Supreme Administrative Court (Naczelny Sąd
Admnistracyjny).
On
3 March 2005 the applicant complained to the
Commune Office about the delay. She asked for the proceedings to be
accelerated.
On
5 April 2005 she lodged a complaint about the inactivity of the Mayor
of the Commune with the Regional Administrative Court (Wojewódzki
Sąd Administracyjny).
On
9 June 2005 the Regional Administrative Court rejected the
applicant’s complaint, since the applicant had failed to lodge
it in accordance with the formal requirements set out in
Polish law, namely she had failed to lodge a complaint with the
administrative authority under Article 37 of the Code of
Administrative Procedure.
On
3 February 2006 the applicant lodged a complaint about the inactivity
of the Mayor of the Dominowo Commune with the Self Government
Board of Appeal (Samorządowe Kolegium Odwoławcze).
The complaint was referred to the Dominowo Commune Council, being the
competent administrative authority.
By
a resolution of 30 August 2006 her complaint was dismissed
as ill-founded.
On
4 January 2007 she lodged a complaint about the inactivity of the
Mayor of the Dominowo Commune with the Regional Administrative Court.
She submitted that she had lodged numerous complaints with different
administrative authorities, her case had been pending for 8 years and
no decision had been given on it.
On
5 December 2007 the Regional Administrative Court found the complaint
well-founded. It held that the proceedings in the applicant’s
case had exceeded a reasonable time and ordered
the Mayor of the Dominowo Commune to proceed speedily with the case.
On
8 April 2008 the Self-Government Board of Appeal decided to grant
the applicant retrospective leave to appeal against the decision
of 29 June 1978.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic law and practice concerning the
remedies for the inactivity of the administrative authorities at the
material time are set out in the Court’s judgment in the case
of Grabiński v. Poland, no. 43702/02, §§ 60-65,
17 October 2006.
THE LAW
I. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE
APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
On
22 April 2009 the Government submitted a unilateral declaration
similar to that in the case Tahsin Acar v. Turkey (preliminary
objection) ([GC], no. 26307/95, ECHR 2003-VI) and
informed the Court that they were ready to accept that there had been
a violation of the applicant’s rights under Article 6 § 1
of the Convention as a result of the unreasonable length of the
proceedings in which the applicant had been involved. In respect
of non-pecuniary damage, the Government proposed to award the
applicant PLN 12,000 (the equivalent of approx. EUR 2,600). The
Government invited the Court to strike out the application in
accordance with Article 37 of the Convention.
The
applicant did not agree with the Government’s proposal and
requested the Court to continue the examination of the case. She
maintained that the amount offered was too low.
The
Court observes that, as it has already held on many occasions, it may
be appropriate under certain circumstances to strike out
an application under Article 37 § 1 (c) of the Convention
on the basis of a unilateral declaration by the respondent
Government even if the applicant wishes the examination of the case
to be continued. It will depend on the particular circumstances
whether the unilateral declaration offers a sufficient basis for
finding that respect for human rights as defined in the Convention
and its Protocols does not require the Court to continue its
examination of the case (see Tahsin Acar, cited above,
§ 75; and Melnic v. Moldova,
no. 6923/03, § 22, 14 November 2006).
According to the Court’s case-law, the
amount proposed in a unilateral declaration may be
considered a sufficient basis for striking out an application or part
thereof. The Court will have regard in this connection to the
compatibility of the amount with its own awards in similar length of
proceedings cases, bearing in mind the principles which it has
developed for determining victim status and for assessing the amount
of non-pecuniary compensation to be awarded where it has found a
breach of the reasonable time requirement (see Cocchiarella
v. Italy [GC], no. 64886/01, §§ 85 107,
ECHR 2006 ...,; Scordino v. Italy (no.1) [GC],
no. 36813/97, §§ 193-215, ECHR-2006-...; and Dubjakova
v. Slovakia (dec.), no. 67299/01, 10 October 2004).
On
the facts and for the reasons set out above, in particular the amount
of compensation proposed, the Court finds that the Government have
failed to provide a sufficient basis for concluding that respect for
human rights as defined in the Convention and its Protocols does not
require it to continue its examination of the case (see, conversely,
Spółka z o.o. WAZA v. Poland (striking out), no.
11602/02, 26 June 2007).
This
being so, the Court rejects the Government’s request to strike
the application out of its list of cases under Article 37 of the
Convention and will accordingly pursue its examination of the
admissibility and merits of the case.
II. 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 refrained from taking a position on
the merits of the applicant’s complaint.
The
period to be taken into consideration began on 11 February 1999
and ended on 8 April 2008. It thus lasted 9 years, 1 month
and 28 days for one level of jurisdiction.
A. Admissibility
The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes 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. 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.
III. 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 10,000 euros (EUR) in respect of non pecuniary
damage.
The
Government contested the claim.
The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards award her EUR 7,200
under that head.
B. Costs and expenses
The
applicant did not make any claim for costs and expenses involved in
the proceedings.
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
Dismisses the Government’s request
to strike the application out of its list of cases;
Declares 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 7,200
(seven thousand two hundred euros) in respect of non-pecuniary
damage, 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 amount 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 29 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
