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MIKOLAJ PIOTROWSKI v. POLAND - 15910/08 [2010] ECHR 1503 (12 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1503.html
Cite as:
[2010] ECHR 1503
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FOURTH
SECTION
CASE OF
MIKOŁAJ PIOTROWSKI v. POLAND
(Application
no. 15910/08)
JUDGMENT
STRASBOURG
12 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Mikołaj Piotrowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting
as a Committee composed of:
Ljiljana Mijović,
President,
Lech Garlicki,
Nebojša Vučinić,
judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 21 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 15910/08) 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, Mr Mikołaj
Piotrowski (“the applicant”), on 19 March 2008.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
On
25 March 2009 the
President of the Fourth Section of the Court decided to communicate
the complaint concerning the length of the administrative proceedings
to the Government. In accordance with Protocol No.
14, the application was assigned to a Committee of three Judges.
The
Government objected to the examination of the application
by a Committee. After having considered the Government's
objection, the Court rejected it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1954 and lives in Zamostne. The applicant is
the legal successor of his mother, Mrs K.A.P., who died in May 2003.
On 1 September 1944 a property owned by L.B. –
the applicant's grandfather and the father of K.A.P.- M.B. and H.L.,
was taken over by the State pursuant to provisions of the Decree
of the Polish Committee of National Liberation on the
Agricultural Reform of 6 September 1944 (Dekret
PKWN o przeprowadzeniu reformy rolnej).
No decision was delivered in the proceedings.
The
applicant submits that on 16 October 1991 his mother, K.A.P., who was
the legal successor of L.B., informed the Siedlecki Governor
(Wojewoda Siedlecki)
that she had undertaken certain steps seeking restitution of her
property or pecuniary compensation in lieu.
It
appears that the Governor informed the applicant's mother by a letter
of 20 November 1991 that no laws regulating this matter had been
enacted yet.
On
1 December 1995 K.A.P. lodged a request with the Minister
of Agriculture and Food Economics (Minister
Rolnictwa i Gospodarki Żywnościowej)
for restitution of the property. She argued that the property in
question had been unlawfully expropriated, since the 1944 Decree had
entered into force on 13 September 1944, i.e. after the date of the
expropriation.
On
9 January 1996 the Minister referred the case to the Siedlecki
Governor.
On
19 February 1996 the Siedlecki Governor gave a decision on the
expropriation of the property in question, confirming that the
property had been taken over by the State on 1 September 1944.
On
27 February 1996 the applicant's mother appealed against the
decision.
On
7 March 1996 she reiterated her arguments. She added that the
property in question had comprised a brickyard, a distillery, a
glass-works and a power station and, should have therefore been as
such, exempted from expropriation within the framework of the
agrarian reform law.
On
13 March 1996 the Minister of Agriculture informed K.A.P. that her
appeal would be examined in the first quarter of 1997.
On
20 March 1996 K.A.P. lodged a complaint with the Council of Ministers
(Rada Ministrów)
about the inactivity of the Minister of Agriculture.
By
a letter of 22 July 1996 the Office of the Council of Ministers
(Biuro Rady Ministrów)
requested the Minister of Agriculture to accelerate the proceedings.
On
7 July 1997 K.A.P. enquired about the state of the proceedings
pending before the Minister of Agriculture.
On
11 August 1997 the Minister of Agriculture upheld the decision of
19 February 1996.
The
applicant's mother appealed.
On
17 July 1998 she asked the Supreme Administrative Court (Naczelny
Sąd Administracyjny) about the
state of the proceedings.
Subsequently,
by a letter of 25 November 1998, she complained to the Ombudsman
about the excessive length of the proceedings.
On
23 November 1999 the Supreme Administrative Court quashed both the
1997 decision of the Minister of Agriculture and the preceding
decision of the Siedlecki Governor. It held that the administrative
authorities had failed to address the applicant's arguments
concerning the non agricultural status of certain components of the
property.
On
27 October 2000 the Lubelski Governor (the Siedleckie Province had
ceased to exist in the meantime) gave a decision declaring that the
property had been taken over by the State in 1944 without
compensation.
On
17 November 2000 K.A.P. lodged an appeal with the Minister of
Agriculture and Country Development (Minister
Rolnictwa i Rozwoju Wsi).
On
19 February 2001 she lodged a complaint with the Prime Minister
(Prezes Rady Ministrów)
about the inactivity of the Minister of Agriculture.
She
further complained, on 30 March 2001, to the Council of Ministers,
about the inactivity of the Minister of Agriculture.
On
17 April 2001 the Chancellery of the Prime Minister (Kancelaria
Prezesa Rady Ministrów)
requested the Minister of Agriculture to consider speeding up of the
proceedings.
On
30 May 2001 the Minister of Agriculture and Country Development
quashed the decision of 27 October 2000 and remitted the case.
On
9 January 2002 the Lubelski Governor informed K.A.P. that her
application would be examined by the end of March 2002, as further
evidence had to be taken.
On
23 April 2002 the Lubelski Governor informed K.A.P. that her
application would be examined by the end of June 2002.
On
15 July 2002 the Lubelski Governor stayed the proceedings and
requested K.A.P. to provide evidence that she was a legal successor
of L.B. She lodged an interlocutory appeal.
On
6 November 2002 the Minister of Agriculture dismissed her
interlocutory appeal.
On
31 December 2002 K.A.P. appealed against this decision.
On
1 May 2003 K.A.P. died.
On
14 April 2004 the Warsaw Regional Administrative Court (Wojewódzki
Sąd Administracyjny) stayed the
proceedings concerning suspension of the administrative proceedings,
pending the termination of the inheritance proceedings after K.A.P.'s
death.
On
9 August 2005 the applicant, the legal successor of K.A.P., lodged a
complaint with the Minister of Agriculture about the inactivity
of the Lubelski Governor.
On
14 November 2005 the Warsaw Regional Administrative Court quashed
both the Minister's decision of 26 November 2002 and the Lubelski
Governor's decision of 2002, by which the proceedings had been
stayed. It noted that on 13 April 2000 the Wejherowo District Court
(Sąd Rejonowy)
had declared K.A.P. to be the legal successor of L.B. It held that
the decisions to stay the proceedings had therefore been issued
in breach of the provisions of the Code of Administrative
Procedure, since the authorities should have been aware of the
above-mentioned inheritance decision.
Between
August 2006 and October 2008 the Lubelski Governor tried to establish
the whereabouts of any potential heirs of M.B. and H.L.
On
9 August 2007 the applicant complained to the Lubelski Governor about
the unreasonable length of the proceedings.
On
13 September 2007 the Lubelski Governor informed the applicant
that his application would be examined by the end of 2007.
On
31 December 2007 the Governor informed the applicant that his
application would be examined by the end of February 2008.
On
27 February 2008 the Lubelski Governor informed the applicant that
his application would be examined by 30 June 2008.
On
3 April 2009 the Warsaw District Court decided that a trustee of an
estate (kurator spadku)
should be appointed in respect to parts of property owned by
M.B. and H.L.
On
21 April 2009 the Lubelski Governor informed the applicant that the
dates and places of birth of both M.B. and H.L. were needed in order
to declare them dead and to appoint a trustee of an estate. In
these circumstances the new time limit for dealing with his
application was set on 31 December 2009.
On
11 January 2010 the Lubelski Governor informed the applicant that his
application would be examined by 30 June 2010.
On
24 May 2010 the Lubelski Governor discontinued the administrative
proceedings instituted by the applicant. The applicant complained
about the decision to the Minister of Agriculture.
The
proceedings are still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant domestic law concerning inactivity on the part
of administrative authorities is 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS
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 1 December 1995 and
has not yet ended. It has thus lasted fourteen years and eight months
for three levels of jurisdiction.
A. Admissibility
The
Government raised a preliminary objection that the applicant had not
exhausted domestic remedies available to him under Polish law.
In
this respect, the Government underlined that the applicant did not
attempt to pursue all effective domestic remedies with respect to his
complaint about the length of the proceedings.
The
Government acknowledged that the applicant had on one occasion lodged
an appeal with the higher authority under Article 37 § 1 of the
Code of Administrative Procedure. However, they maintained that under
Article 17 of the Law of 11 May 1995 on the Supreme Administrative
Court (“The 1995 Act”) the applicant could have further
lodged a complaint with the Supreme Administrative Court, since, by
complaining first to the higher administrative authority, he had
fulfilled a requirement under section 34 of the 1995 Act. The
Government further submitted that after 1 January 2004,
that is after the date of the entry into force of the Law
of 30 August 2002 on Proceedings before Administrative
Courts (“The 2002 Act”), which replaced the 1995
Act, the applicant could have made use of Section 3 § 2 of the
2002 Act which contains provisions analogous to Section 17 of the
1995 Act.
Furthermore,
the Government observed that the applicant could have also complained
about inactivity of the Lubelski Governor directly to the Supreme
Administrative Court (and after 1 January 2004 to a Regional
Administrative Court).
Finally,
they argued that the applicant had failed to lodge a compensation
claim with a civil court in order to seek redress for the alleged
damage which had resulted from the inactivity of the administrative
authorities. They relied on Articles 417 and 417¹ § 3 of
the Civil Code.
The
applicant claimed that he had exhausted all available domestic
remedies.
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, Reports
of Judgments and Decisions 1996 VI, pp. 2275–76,
§§ 51–52).
The
Court notes that both K.A.P. and the applicant lodged complaints
about inactivity on the part of the
administrative authorities responsible for giving a decision
(see paragraphs 15, 25, 26 and 36 above). The competent supervision
bodies found the complaints well-founded and ordered the proceedings
to be accelerated (see paragraphs 16 and 27 above). The Court further
notes that the relevant administrative authorities, having exceeded
the statutory time-limits for giving a decision, informed the
applicant of the delay and set new dates (see paragraphs 29, 30, 40,
41, 42, 44 and 45 above).
In
these circumstances the Court does not consider that the applicant
should have lodged a further complaint with the Supreme
Administrative Court in order to fulfil his obligation under
Article 35 § 1. The remedies the applicant used were
therefore adequate and sufficient to afford him redress in respect of
the alleged breach (see Puczyński v.
Poland, no. 32622/03, § 36,
8 December 2009).
The
Court further observes that according to Article 417¹ § 3
of the Civil Code no claim for damages resulting from the
unreasonable length of administrative proceedings may arise
unless it has been formally determined that there was an unlawful
failure to issue an administrative decision within the relevant
time-limits. The Court also notes that the domestic case-law relied
on by the Government does not constitute evidence of sufficiently
established judicial practice to show that a claim for compensation
based on Article 417¹ § 3 of the Civil Code was an
effective remedy, and they have thus failed to substantiate their
contention (see Boszko v. Poland, no. 4054/03, §
35, 5 December 2006; Grabiński v. Poland,
no. 43702/02, § 74, 17 October 2006; and Pióro
and Łukasik v. Poland, no. 8362/02, § 35, 2 December
2008).
Accordingly,
the Court concludes that in the circumstances of the case
seen as a whole 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 also
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Government submitted that the case was very complex, mainly due to
the unknown whereabouts of the potential heirs of the two co-owners
of the disputed property.
The
applicant argued that the complexity of the case, referred to by the
Government, could not by itself explain the overall length of the
proceedings. Moreover, the conduct of the proceedings by the
administrative authorities was criticised by the Warsaw Regional
Administrative Court in its judgment of 14 November 2005. In
conclusion, according to the applicant, the length of the proceedings
was in breach of the “reasonable time” requirement
laid down in Article 6 § 1 of the Convention.
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).
As
regards the administrative proceedings in the present case, the
Court, having regard to the evidence available, accepts that the case
is of a certain complexity.
The Court further acknowledges that the applicant
lodged several appeals and complaints in the course of the impugned
proceedings. However, in this connection the Court notes that
following his appeals two decisions on the merits were quashed by the
higher authorities and remitted for re-examination. Given that a
remittal of a case for re-examination is usually ordered as a
result of errors committed by the lower courts, the Court considers
that the repetition of such orders within one set of proceedings
discloses a deficiency in the procedural system as applied in the
present case (see, mutatis mutandis, Wierciszewska
v. Poland, no. 41431/98, § 46, 25 November 2003).
Moreover, the time-limits set to deal with the case were on many
occasions prolonged, the authorities not being able to finish the
examination of the case by the dates which had been fixed for that
purpose.
The
foregoing considerations are sufficient to enable the Court
to conclude that the applicant's case has not been heard within
a reasonable time. There has accordingly been a breach of Article 6
§ 1.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant further complained, in substance under Article 1
of Protocol No. 1, that the property of his predecessor was
unlawfully taken over by the State.
The Court notes that a completed taking of property
before the entry into force of the Convention for the respondent
State does not give rise to any continuing situation of
deprivation of a property right, as it is in principle an
instantaneous act (see Kopecký v. Slovakia [GC],
no. 44912/98, ECHR 2004 IX). It follows that this complaint
must be declared inadmissible in accordance with Article 35 §§
1 and 3 as incompatible ratione temporis with the Convention.
In
so far as the applicant can be understood as complaining about
inability to reclaim the property, the Court observes that the
domestic proceedings to determine the applicant's claims are
currently pending. Therefore, insofar as the applicant relies on
Article 1 of Protocol No. 1 to the Convention, the Court
considers that it would be premature to take a position on the
substance of this complaint.
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 26,500,000 zlotys (PLN) in respect of pecuniary
damage and 50,000 euros (EUR) in respect of non-pecuniary damage.
The
Government did not express an opinion on the matter.
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, it awards the applicant EUR 10,200 in respect
of non pecuniary damage.
B. Costs and expenses
The
applicant also claimed PLN 848 for the costs and expenses incurred
before the Court and PLN 44,320 for those incurred before the
domestic courts.
The
Government did not express an opinion on the matter.
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 applicant the sum of EUR 220
under this head.
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 proceedings admissible and the remainder of the
application inadmissible;
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,
EUR 10,200 (ten thousand two hundred euros) in respect
of non pecuniary damage and EUR 220 (two hundred and twenty
euros) for 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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 October 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ljiljana Mijović
Deputy
Registrar President
