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SERAFIN AND OTHERS v. POLAND - 36980/04 [2009] ECHR 660 (21 April 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/660.html
Cite as:
[2009] ECHR 660
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FOURTH
SECTION
CASE OF SERAFIN AND OTHERS v. POLAND
(Application
no. 36980/04)
JUDGMENT
STRASBOURG
21
April 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 Serafin and others v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 31 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 36980/04) 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 Polish nationals, Ms Jolanta Serafin, Ms Teresa Urbanek, Ms
Małgorzata Gładysz-Wójcik, Ms Katarzyna Okoniewska,
Ms Marta Plamenac, Mr Andrzej Zawistowski, Ms Elżbieta
Zawistowska, Mr Piotr Zawistowski and Ms Joanna
Aleksowicz Zawistowska, (“the applicants”), on 6
October 2004.
The
applicants were represented by Mr J. Brzykcy, a lawyer practising in
Warszawa. The Polish Government (“the
Government”) were represented by their Agent, Mr J.
Wołąsiewicz, of the Ministry of Foreign Affairs.
On
10 January 2008 the
President of the Fourth Section of the Court 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
applicants live in Warszawa, Łódź, Świdnica and
Sochaczew.
The
applicant Joanna Aleksowicz-Zawistowska died in 2005. The applicant
Piotr Zawistowski is her sole heir.
The
applicant Andrzej Zawistowski died in 2008. His heirs Monika, Rafał
and Marcin Zawistowscy declared their intention to pursue the claim.
1. Background of the case
The
applicants are heirs to a property (a plot of land with a creamery)
situated in central Warsaw on Towarowa Street (previously Krochmalna
Steet).
The
property belonged to Julian Charaziński and after his death on
15 May 1939 it was inherited by his daughters: Władysława
Zawistowska (legal predecessor of the applicants Małgorzata
Gładysz-Wójcik, Elżbieta Zawistowska, Andrzej and
Piotr Zawistowski), Stefania Onichimowska (mother of the applicant
Jolanta Serafin), Krystyna Gumułka (mother of the applicant
Marta Plamenac), Czesława Paszkowska (grandmother of the
applicant Ms Katarzyna Okoniewska), Julia Urbanek (mother of the
applicant Teresa Urbanek). They all worked in the creamery until
1954.
By
virtue of the Decree of 26 October 1945 on the Ownership and Use of
Land in Warsaw (“the 1945 Decree”) the ownership of all
private land was transferred to the City of Warsaw. The applicants'
creamery was also nationalised.
On
13 October 1948 the applicants and/or their legal predecessors
requested to be granted the right of temporary ownership (własność
czasowa) of the property pursuant to section 7 of the 1945
Decree.
On 16 December 1952 the Board of the Warsaw National
Council (Prezydium Rady Narodowej) refused the request.
On
19 April 1993 the applicants requested annulment of the decision of
16 December 1952.
On
22 September 1994 the Minister of Planning and Construction (Minister
Gospodarki Przestrzennej i Budownictwa) declared the decision
null and void, finding that it had been issued in breach of law.
2. The administrative proceedings concerning the grant
of the right of perpetual use
On
20 November 1990 the applicants lodged a request to have their
property returned under Article 7 of the
1945 Decree.
On
31 January 1992 the Warsaw Deputy Mayor transferred the applicants'
request to the Warszawa Wola Mayor.
In
letters dated 10 April 1992 and 10 September 1992, Stefania
Onichimowska requested the speedy examination of her application.
On
3 November 1992 Aniela Gładysz (the niece of Stefania
Onichimowska and mother of Małgorzata Gładysz-Wójcik),
one of the legal heirs to the property, complained to the Warsaw
Deputy Mayor about the lack of response on the part of the
Warszawa-Wola Mayor.
On
30 December 1992 the Warsaw Deputy Mayor requested the Warszawa-Wola
Mayor to deal with the applicants' request by 30 January 1993.
Apparently,
on 14 September 1995, the applicants were requested to submit
relevant documents confirming their rights to the property.
On
5 December 1995 and on 15 April 1997, in letters to the Warsaw
municipality, Aniela Gładysz demanded that the applicants'
request for the return of the property or for compensation be
examined.
On
28 May 1997 she was informed that, due to the need to confirm the
inheritance rights of the alleged heirs to the property and due to
Stefania Onichimowska's death in August 1995 and the resulting need
to establish the identity of her heirs, the examination of their
application could not be undertaken before 15 April 1997 – the
date on which Aniela Gładysz had submitted all required
documents.
On
17 March 1999, Aniela Gładysz complained to the Warsaw Centre
Municipal Council against the Office for Housing and Urban
Development about the inactivity of the body and lack of any decision
concerning the title to the property.
On
18 March 1999, the municipal council informed Ms Gładysz that
her complaint had been transferred to the Audit Committee and that,
due to the complex nature of her case, it would not be possible to
examine her complaint within 14 days.
On
24 June 1999 Ms Małgorzata Gładysz-Wójcik, on behalf
of Aniela Gładysz, lodged a complaint with the Minister of
Internal Affairs against the Warsaw-Centre Municipal Council and the
Office for Housing and Urban Development.
On
25 June 1999 the Minister transferred the complaint to the Local
Government Board of Appeal (Samorządowe Kolegium Odwoławcze).
On
15 September 1999 the Local Government Board of Appeal, finding that
it had lacked competence to deal with the complaint, transferred it
to the Mazowiecki Governor.
On
15 November 2004 Małgorzata Gładysz-Wójcik and Marta
Palmenac complained to the Warsaw Local Government Board of Appeal
about the inactivity of the administrative authorities and their
failure to issue an administrative decision.
On
19 January 2005 the Warsaw Local Government Board of Appeal ordered
the Mayor of Warsaw to issue a decision concerning the grant of the
right of perpetual use of the property within a period of 2 months.
On
11 April 2005 Małgorzata Gładysz-Wójcik and Marta
Plamenac lodged a complaint with the Warsaw Regional Administrative
Court against the Mayor of Warsaw for failure to issue an
administrative decision.
On
26 October 2005 the Warsaw Regional Administrative Court informed Ms
Małgorzata Gładysz-Wójcik that the court could not
rule on the complaint of 11 April 2005 because the administrative
authority in question had not yet submitted their observations on the
applicants' complaint.
On
14 March 2006 the Warsaw Regional Administrative Court fined the
Mayor of Warsaw PLN 2,500.
On
14 June 2006 the Warsaw Regional Administrative Court ordered the
Mayor of Warsaw to issue within 2 months a decision concerning the
perpetual use of the property.
On
2 August 2006 the Mayor of Warsaw stayed the proceedings concerning
the right of perpetual use pending the outcome of civil proceedings
before the Warsaw District Court for acquisition by prescription,
instituted by a “Wola” co-operative.
On
14 August 2006 the applicants appealed against the decision of
2 August 2006 to the Local Government Board of Appeal.
On
17 January 2007 the Local Government Board of Appeal quashed the
decision of 2 August 2006 finding that there had been no reason to
stay the proceedings and to delay the delivery of the decision on the
merits. The Board noted that the co-operative's request to re-open
the proceedings terminated by the decision of 22 September 1994 of
the Minister of Planning and Construction had been refused on 5
December 2006.
On
17 April 2007 Małgorzata Gładysz-Wójcik and Marta
Plamenac instituted enforcement proceedings against the Mayor of
Warsaw.
On
5 July 2007 the Mayor of Warsaw issued a decision granting the
perpetual use of the property to the applicants for a period of 99
years, with the exception of a part of the property which had been
intended for the building of a road.
The
“Wola” co-operative appealed to the Warsaw Local
Government Board of Appeal. On 5 September 2007 the Board of Appeal
discontinued the appeal proceedings due to lack of legal standing on
the part of the “Wola” co-operative. The decision of 5
July 2007 issued by the Mayor of Warsaw became final.
3. First set of civil proceedings (proceedings for
compensation)
On
18 September 1997, Aniela Gładysz and the other heirs lodged
with the Office for Housing and Urban Development (Urząd
Mieszkalnictwa i Rozwoju Miast) an action for damages resulting
from the administrative decision of 16 December 1952. At the same
time, they demanded from the Warsaw municipality compensation for
unlawful use of their property.
On
30 September 1998 Aniela Gładysz complained to the Office about
their failure to examine her claim of 18 September 1997. On
27 October 1998 the Office for Housing and Urban Development
rejected the claim.
On
25 November 1998 Aniela Gładysz and the other applicants (“the
plaintiffs”) lodged with the Warsaw Regional Court a claim
against the State Treasury for compensation under Article
160 of the Code of Administrative Procedure. The amount of
compensation claimed (PLN 1,000,000) was later modified.
The
first hearing in the case was scheduled for 31 January 2002. Nine
hearings were held up until 10 November 2005.
On
15 February 2006 the proceedings were stayed upon the plaintiffs'
request and resumed on 23 May 2006.
On
29 June 2007 the court delivered a judgment and awarded compensation
to the plaintiffs.
On
21 August 2007 the Mazowiecki Governor appealed. The appeal hearing
was scheduled for 27 March 2008. On 27 March 2008 the proceedings
were stayed due to the death of one of the plaintiffs – Andrzej
Zawistowski.
The
Warsaw Court of Appeal rejected the appeal on 10 June 2008.
4. Second set of civil proceedings (proceedings aiming
at ordering the Warsaw municipality to issue a statement confirming
the applicants right of perpetual use of the property at Towarowa
Street)
On
6 December 1999 the applicants lodged with the Warsaw Regional Court
requested the court to order the Warsaw municipality to issue a
statement confirming the applicants' right of perpetual use of the
property at Towarowa Street, and to pay compensation for lost profits
(lucrum cessans).
Certain
delays in the preliminary phase of the proceedings were due to the
fact that one of the plaintiffs, Aleksadra Czudowska, who lived in
the Netherlands, had not signed the claim properly and had not
established an address for correspondence in Poland; the court had to
obtain assistance of the Polish Consul in the Hague to contact the
plaintiff and to remedy the shortcomings of the pleadings.
The
first hearing in the case was held on 9 April 2002.
On
12 December 2002 the proceedings were stayed upon request of
Małgorzata Gładysz-Wójcik (in relation to her
mother's death). The proceedings were resumed on 22 May 2003.
On
31 October 2003 the Warsaw Regional Court rejected the plaintiffs'
claim in part and stayed the proceedings concerning the remainder of
the claim pending the outcome of the administrative proceedings. The
plaintiffs appealed.
On
18 November 2005 the Court of Appeal quashed the decision of the
Regional Court.
On
21 December 2006 the Warsaw Regional Court dismissed the claims. The
plaintiffs appealed.
On 20 February 2009 the Warsaw Court of Appeal quashed the judgment
of the Regional Court and remitted the case for re-examination.
The
case is pending.
5. Proceedings under the 2004 Act
On
7 December 2004 Małgorzata Gładysz-Wójcik, Marta
Plamenac, Jolanta Serafin and Teresa Urbanek lodged with the Warsaw
Court of Appeals a complaint under the Law of 17 June 2004 on
complaints about a breach of the right to a trial within a reasonable
time (Ustawa o skardze na naruszenie prawa strony do rozpoznania
sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki)
(“the 2004 Act”). They complained about the excessive
length of the first and second sets of civil proceedings.
On
21 January 2005 the Warsaw Court of Appeal issued two decisions.
In
a decision concerning the first set of proceedings the court
acknowledged that the impugned proceedings had been excessively
lengthy. The court observed that the applicants' right to a trial
within a reasonable time had been breached. However, in the court's
view, the plaintiffs had partly contributed to the length of the
proceedings and their overall length resulted from objective
circumstances which could not be attributable to the Regional Court.
The court ordered the Regional Court to accelerate the proceedings
and awarded each applicant PLN 1,000 as just satisfaction.
In
a decision concerning the second set of proceedings the court
acknowledged that the impugned proceedings had been excessively
lengthy. In particular, the applicants' appeal against the decision
of 31 October 2003 had not yet been transferred to the Court of
Appeal. However, the Court of Appeal took into account the complexity
of the case resulting from the large number of plaintiffs. The court
ordered the Regional Court to accelerate the proceedings and awarded
each applicant PLN 1,000 as just satisfaction.
II. RELEVANT DOMESTIC LAW AND PRACTICE
For
a presentation of the domestic law concerning inactivity of
administrative authorities, see: Kaniewski v. Poland, no.
38049/02, 8 February 2006, and Koss v. Poland, no.
52495/99, 28 March 2006.
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 the 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 relevant domestic law and practice relating to administrative
proceedings concerning the grant of the right of perpetual use of
land can be found in the Court's decisions in the cases Potocka
and Others v. Poland (dec.), no. 33776/96, 6 April 2000 and Szenk
v. Poland (dec.), no. 67979/01, 1 June 2004 and the judgment in
the case Koss v. Poland, no. 52495/99, § 29,
28 March 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained that the length of the proceedings they were
involved in 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
Court notes that the administrative proceedings commenced on 31
January 1992. However, the period to be taken into consideration
began only on 1 May 1993, when the recognition by Poland of the right
of individual petition took effect. Nevertheless, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time. The period in
question ended on 5 September 2007. It thus lasted 14 years and 4
months for three levels of jurisdiction.
With
regard to the first set of civil proceedings, the period to be taken
into consideration began on 25 November 1998 and ended on 10 June
2008. It thus lasted 9 years and 6 months for two levels of
jurisdiction.
With
regard to the second set of civil proceedings, the period to be taken
into consideration began on 6 December 1999 and has not yet ended. It
has already lasted [on 3 March 2009] 9 years and 2 months for two
levels of jurisdiction.
A. Admissibility
1. Compatibility ratione
personae
The
respondent Government submitted that the application should be
declared inadmissible ratione personae in respect of Ms Joanna
Aleksowicz Zawistowska and Mr Andrzej Zawistowski because of
their death.
On
16 June 2008 the applicants' lawyer informed the Court that the heirs
of those applicants wished to support the application and had
authorised him to represent them before the Court. The Court accepts
that the son of Joanna Aleksowicz-Zawistowska - the applicant Piotr
Zawistowski, and children of Andrzej Zawistowski - Monika, Rafał
and Marcin Zawistowscy, have standing to pursue the application in
their stead.
In
view of the above, the Government's objection should be dismissed.
2. Exhaustion of domestic remedies
The
Government raised an objection that the applicants had not exhausted
the domestic remedies available to them under Polish law, as required
by Article 35 § 1 of the Convention.
a) The administrative proceedings
The
Government maintained that the applicants had failed to file jointly
a complaint alleging inactivity on the part of an administrative
body, as provided by Article 37 § 1 of the Code of
Administrative Procedure, and to make use of the remedy provided
under Article 17 of the 1995 Act on the Supreme Administrative Court.
According to the Government, only some of the applicants had availed
themselves of those remedies.
The
applicants submitted that the administrative proceedings in question
had involved the substantive and formal joint participation of them
all. This meant that actions brought by one or more of the applicants
entailed legal effects, both substantive and formal, for all
applicants, irrespective of whether they had all signed the
complaints or not.
The
Court recalls that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention requires
applicants first to use the remedies provided by the national legal
system. The rule is based on the assumption that the domestic system
provides an effective remedy in respect of the alleged breach. 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 Aksoy
v. Turkey, judgment of
18 December 1996, Reports
of Judgments and Decisions 1996-VI,
pp. 2275–76, §§ 51–52).
The
Court notes that one or two of the applicants, on behalf of the other
applicants, filed several complaints alleging inactivity on the part
of the administrative authorities with the respective higher
authority, as provided by Article 37 § 1 of the Polish Code of
Administrative Procedure of 1960. Complaints were also filed by them
with the Regional Administrative Court according to the Act on
Proceedings before Administrative Courts of 30 August 2002 (see
paragraphs 22-32 above). The applicants also successfully appealed
against a decision of the Mayor of Warsaw to stay the proceedings
pending the outcome of civil proceedings (see paragraphs 33-35
above).
The
Court further notes that, as submitted by the applicants, the
administrative proceedings in question involved the substantive and
formal joint participation of the claimants. Consequently, actions
brought by one or more of the applicants entailed the same legal
effects for all of them (see paragraph 72 above). Therefore, the
Court finds that the applicants, as a whole, can be considered to
have availed themselves of the abovementioned remedies in compliance
with the relevant domestic legal provisions.
With regard to the Government's claim that the
applicants failed to use other available remedies, namely that they
could have challenged the incompatibility of the prolongation of the
proceedings with the principle of promptness of proceedings (laid
down in Article 12 of the CAP), the
Court 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, mutatis mutandis, H.D.
v. Poland (dec.), no. 33310/96, 7 June 2001;
Kaniewski v. Poland, no. 38049/02, §§ 32-39,
8 November 2005; and Cichla v. Poland, no. 18036/03,
§23-26, 10 October 2006).
The Court considers therefore that, having exhausted
the available remedies provided by Article 37 § 1 of the Polish
Code of Administrative Procedure of 1960, and by the Act on
Proceedings before Administrative Courts of 30 August 2002, and
having obtained decisions in their favour (see paragraphs 28 and
31-33 above), the applicants were not required to embark on another
attempt to obtain the same conclusion though a different legal
measure.
Accordingly,
the Court concludes that, for the purposes of Article 35 § 1
of the Convention, the applicants have exhausted domestic remedies in
respect of the administrative proceedings. For these reasons, the
Government's plea of inadmissibility on the ground of non-exhaustion
of domestic remedies must be dismissed.
b) The civil proceedings
i) As regards the applicants Ms Katarzyna
Okoniewska, Mr Andrzej Zawistowski, Ms Elżbieta Zawistowska, Mr
Piotr Zawistowski and Ms Joanna Aleksowicz-Zawistowska
The
Government argued that only the applicants Małgorzata
Gładysz-Wójcik, Marta Plamenac, Jolanta Serafin and
Teresa Urbanek had lodged a complaint under the 2004 Act (see
paragraphs 56 59 above). Accordingly, the remaining
applicants failed to exhaust domestic remedies and this part of their
application should be rejected in accordance with Article 35 § 1
and 4 of the Convention.
The
Court observes that the present application was lodged with the Court
when the proceedings complained of were pending before the domestic
court.
It
further observes that, pursuant to section 18 of the 2004 Act, it was
open to persons whose case was pending before the Court to lodge,
within six months from 17 September 2004, a complaint about the
unreasonable length of the proceedings with the relevant domestic
court, provided that their application to the Court had been lodged
in the course of the impugned proceedings and had not yet been
declared admissible.
The
Court has already examined those remedies for the purposes of
Article 35 § 1 of the Convention and found them effective
in respect of complaints about the excessive length of judicial
proceedings in Poland. In particular, it considered that they were
capable both of preventing the alleged violation of the right to a
hearing within a reasonable time or its continuation, and of
providing adequate redress for any violation that has already
occurred (see Charzyński v. Poland (dec.), no. 15212/03,
§§ 36-42). Such compensation can be awarded only to a party
to the proceedings who actually lodged the complaint.
However,
the remaining applicants, despite having been informed by the
Registrar of the possibility of lodging a complaint about the length
of the proceedings under the 2004 Act, have chosen not to avail
themselves of this remedy.
It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies, in respect of the applicants: Ms
Katarzyna Okoniewska, Mr Andrzej Zawistowski, Ms Elżbieta
Zawistowska, Mr Piotr Zawistowski and Ms Joanna
Aleksowicz-Zawistowska.
ii) As regards the applicants Małgorzata
Gładysz-Wójcik, Marta Plamenac, Jolanta Serafin and
Teresa Urbanek
With
regard to the four applicants who had recourse to the remedy provided
for by the 2004 Act (see paragraph 78 above), the Court notes that
the Government raised an objection that the applicants had not
exhausted all remedies available under Polish law. They maintained
that they had not lodged a claim with the civil courts for
compensation for damage suffered due to the excessive length of the
proceedings. Such a claim was provided for by Article 417 of the
Civil Code.
The Court has already examined and rejected the
Government's arguments in this respect on many occasions (see Cichla
v. Poland no. 18036/03, § 21-26, 10 October
2006; and Jagiełło v. Poland, no. 59738/00,
§ 24, 23 January 2007). 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.
Accordingly,
the Court concludes that, for the purposes of Article 35 § 1
of the Convention, the four applicants have exhausted domestic
remedies. It follows that the Government's plea of inadmissibility on
the ground of non-exhaustion of domestic remedies must be dismissed.
Further,
the Court notes that the Warsaw Court of Appeal acknowledged a breach
of the applicants' right to a hearing within a reasonable time and
awarded each of them the equivalent of EUR 244 in respect of the
length of the proceedings (see paragraphs 58-59 above). The just
satisfaction awarded amounts to approximately 7 per cent of what the
Court would be likely to have awarded the applicants at that time in
accordance with its practice, taking into account the particular
circumstances of the proceedings.
The Court thus concludes that the redress provided to the applicants
at domestic level, considered on the basis of the facts of which they
complain before the Court, was insufficient (see Czajka v.
Poland, no. 15067/02, § 56, 13 February
2007). Having regard to the criteria for determining victim status in
respect of length of proceedings complaints as set out in the
judgment of Scordino v. Italy (no.1) ([GC], no. 36813/97,
§§ 193-215, ECHR-2006-...), the Court concludes that the
complaint cannot be rejected as being incompatible ratione
personae with the Convention.
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
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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
As
regards the administrative proceedings, the Court, having regard to
the available evidence, does not find it established that the
applicants substantially contributed to the delays in the
proceedings. The Court acknowledges that the applicants lodged
several appeals and complaints in the course of the impugned
proceedings. However, all of these appeals and complaints proved
well-founded.
In
contrast, the Court is struck by the conduct of the relevant
administrative authorities and the manner in which they handled the
applicants' case. The Court notes that there were long delays in
dealing with the case and frequent periods of inactivity,
notwithstanding the fact that the Local Government Board of Appeal
and the Regional Administrative Court on several occasions instructed
the authorities to issue a decision and even fined the Mayor of
Warsaw.
With
regard to the first set of civil proceedings, the Court notes that it
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.
As
to the second set of civil proceedings, the Court observes that there
were certain periods of delay which could not be attributed to the
authorities (see paragraphs 48-50). However, the Court finds that the
overall period did not comply with the reasonable time requirement.
Having
regard to its case-law on the subject, the Court considers that in
the instant case the length of all three sets 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
applicants each claimed PLN 3,000,000 (approx. EUR 643,915) in
respect of non-pecuniary damage.
The
Government contested the claim.
The
Court considers that the applicants must have sustained non-pecuniary
damage. Ruling on an equitable basis, and taking
into the consideration the number of applicants (see
Arvanitaki-Roboti and Others v. Greece,[GC], no. 27278/03,
15 February 2008) and
the fact that the various sets of proceedings under consideration
were interconnected, it awards each of the
applicants Małgorzata Gładysz-Wójcik, Marta
Plamenac, Jolanta Serafin and Teresa Urbanek EUR 9,750 under that
head (in respect of the three sets of proceedings), and EUR 4,800
to each of the applicants Katarzyna Okoniewska, Andrzej
Zawistowski, Elżbieta Zawistowska and Piotr Zawistowski (in
respect of the administrative proceedings).
The Court recalls that it has recognised the locus
standi of Monika, Rafał and Marcin Zawistowscy, heirs
of the applicant Andrzej Zawistowski, to pursue the application after
the applicant's death. The Court considers that they may also take
the applicant's place as regards claims for just satisfaction under
Article 41 of the Convention and Rule 60 of the Rules of Court (see,
Malhous v. the Czech Republic [GC], 33071/96, § 67, 12
July 2001).
B. Costs and expenses
The
applicants did not make any claim for costs and expenses.
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 complaint concerning the excessive
length of the administrative proceedings admissible;
Declares the complaint concerning the excessive
length of the two sets of civil proceedings admissible in respect of
the applicants Małgorzata Gładysz-Wójcik, Marta
Plamenac, Jolanta Serafin and Teresa Urbanek and inadmissible in
respect of the remaining applicants;
Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the above-mentioned
administrative and civil proceedings;
Holds
(a) that
the respondent State is to pay each of the applicants Małgorzata
Gładysz-Wójcik, Marta Plamenac, Jolanta Serafin and
Teresa Urbanek, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 9,750 (nine thousand seven hundred and fifty
euros) in respect of non-pecuniary damage, plus any tax that may be
chargeable to be converted into the currency of the respondent State
at the rate applicable at the date of settlement;
(b)
that the respondent State is to pay each of the applicants
Katarzyna Okoniewska, Elżbieta Zawistowska and Piotr
Zawistowski, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 4,800 (four thousand eight
hundred euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable to be converted into the currency of the respondent
State at the rate applicable at the date of settlement;
(c)
that the respondent State is to pay the heirs of the applicant
Andrzej Zawistowski: Monika, Rafał and Marcin Zawistowscy
jointly, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 4,800 (four thousand
eight hundred euros) in respect of non-pecuniary damage, plus any tax
that may be chargeable to be converted into the currency of the
respondent State at the rate applicable at the date of settlement;
(d) 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 21 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President