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KOSINSKA v. POLAND - 42797/06 [2010] ECHR 2023 (14 December 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/2023.html
Cite as:
[2010] ECHR 2023
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FOURTH
SECTION
CASE OF KOSIŃSKA v. POLAND
(Application
no. 42797/06)
JUDGMENT
STRASBOURG
14
December 2010
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 Kosińska v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić,
Vincent A. de Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 23 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 42797/06) 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 Grażyna
Kosińska (“the applicant”), on 4 October 2006.
The
applicant was represented by Mr K. Kinder, a lawyer practising in
Toruń. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
On
8 June 2009 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1955 and lives in Włocławek.
A. Background to the
proceedings
The
applicant's parents co-owned a carpenter's workshop and a house
located in Włocławek. On 17 December 1976 a local land
development plan was adopted under which a rain and a sanitary ditch
were to be built on their land. By a notarial deed of 23 June 1980
the representative of the State Treasury, the applicant's parents and
the remaining co-owners concluded a contract of sale, under the
provisions of the Law on Expropriation of 12 March 1958
(Ustawa o zasadach i trybie wywłaszczaniu nieruchomości).
They agreed to sell the plot of land listed in the local land
register as plot no. 143 for the agreed price.
After
the sale, the property was leased back to the applicant's parents.
The
applicant's father died on 7 November 1988. The applicant and her
mother, G.S., inherited from him.
B. Proceedings for restitution of property
1. Facts prior to 1 May 1993
On 8 February 1989 the applicant's mother lodged a
motion with the Włocławek Town Office (Urząd
Miejski) for restitution of the property. She argued that the
local land development plan had not been implemented and therefore
the State no longer required her property for the reasons of public
interest for which it had been expropriated.
It
appears that by letters of 7 March and 3 April 1989 the applicant's
mother contacted the authorities requesting them to conclude a new
lease contract. It seems that her letters have not been answered.
On
15 March 1989 the Włocławek Town Office dismissed her
motion, arguing that only a property which had been expropriated, and
which had not been sold, could be recovered under the Law on
Expropriation.
On
5 May 1989 the Governor's Office (Urząd Wojewódzki)
quashed the decision of 15 March 1989 and discontinued the
proceedings, noting that the claim should have been lodged before the
civil courts.
On
7 December 1989 the Company of Housing Economy (Przedsiębiorstwo
Gospodarki Mieszkaniowej) informed the applicant's mother about
the termination of the lease contract. This decision was enforced on
21 August 1991, when the applicant and her mother had left the
property.
On
14 March 1990 the Supreme Administrative Court (Naczelny Sąd
Administracyjny) quashed the decisions of 15 March and 5
May 1989. It referred to the Supreme
Court's resolution of 20 February 1986, which held that a transfer of
a real estate to the State Treasury under a sale contract was to be
considered an expropriation for the purposes of the restitution
proceedings.
By
a decision of 7 May 1991 the Mayor of Włocławek (Prezydent
Miasta) stayed the proceedings, pending the adoption of the new
local land development plan.
On
18 July 1991 the Self-Government Board of Appeal (Samorządowe
Kolegium Odwoławcze) quashed the decision of 7 May 1991.
On
12 August 1992 the Mayor of Włocławek discontinued the
proceedings.
It
appears that on 7 September 1992 the applicant's mother lodged yet
another motion for restitution with the Włocławek District
Office (Urząd Rejonowy).
2. Facts after 30 April 1993
On
13 May 1993 the Włocławek District Office dismissed the
motion. The decision was served on the applicant, her mother and
other co owners of the property.
On
6 July 1993 the Governor's Office quashed the decision of the
District Office and remitted the case.
On
22 November 1993 the Head of the District Office (Kierwonik Urzędu
Rejonowego) dismissed the motion for restitution.
On
11 January 1994 the Governor's Office quashed the decision of
22 November 1993 and remitted the case.
On
25 April 1994 the applicant lodged a complaint with the Governor
about the inactivity of the Włocławek District Office.
On
24 May 1994 the Governor's Office acknowledged
the delay and informed the applicant that
the decision would be issued by 30 June 1994.
On
1 September 1994 the Włocławek District Office apologised
for the delay in the proceedings, claiming that they had not, until
then, received necessary information from the Ministry
of Town and Country Planning (Ministerstwo
Gospodarki Przestrzennej i Budownictwa).
By
a decision of 14 November 1994 of the Włocławek District
Office the real estate was restored to the applicant and other
co-owners.
On
5 January 1995 the Governor's Office quashed the decision of the
District Office and remitted the case for re-examination.
On 27 February 1995 the applicant together with the
remaining co owners submitted a request under the Land
Administration and Expropriation Act of 29 April 1985 (Ustawa
o gospodarce gruntami i wywłaszczaniu
nieruchomości) for partial restitution of the real estate
(the carpenter's workshop with the adjacent land) – a part
of the property that had not been inhabited.
By
a notarial deed of 13 March 1995 the applicant's mother transferred
all her claims and obligations connected with the real estate to the
applicant.
On
5 April 1995 the applicant lodged a complaint with the Governor about
the inactivity of the Włocławek District Office.
On 29 April 1995 the Governor's Office acknowledged
the delay and informed the applicant that
a decision would be issued by 14 June 1995.
By a decision of 23 May 1995 of the Włocławek
District Office the real estate was partly returned to the applicant
and the other co-owners.
On
3 July 1995 the Governor's Office upheld that decision.
On
14 January 1997 the Supreme Administrative Court quashed the
decisions of 23 May and 3 July 1995, holding that the calculation of
the re payment was wrong.
On
30 October 1998 the real estate was divided into two parts: real
estate no. 143/1 and real estate no. 143/2.
35. On
23 January 1999 the applicant lodged a complaint about the inactivity
of the Governor's Office.
36. On
22 February 1999 the Kujawsko-Pomorski Governor's Office apologised
for the delay. They explained that the delay had been caused by a new
law, which had changed the competence of the administrative
authorities to deal with the case. It had entered into force on 1
January 1998.
On
12 November 1999 the Mayor of Włocławek decided to restore
to the applicant a plot of land listed in the local land register as
plot no. 143/2 (a part of property that she has claimed in her
motion of 27 February 1995). She was ordered to repay the
compensation which her parents had received for the expropriation of
this plot. The applicant took possession of it on 12 January 2000.
The applicant did not lodge an appeal against this decision.
On
29 May 2000 the applicant again filed a motion for restitution of the
plot of land listed in the local land register as plot no. 143/1.
On
31 August 2001 the Mayor of Włocławek gave a decision in
which it allowed the applicant's action. The property in question was
restored to the applicant and the other co-owners. The applicant
appealed against this decision, arguing that the authorities had
failed to address the issue of the persons inhabiting the property.
On
26 October 2001 the Kujawsko-Pomorski Governor upheld the
first instance decision. The applicant appealed.
On
21 June 2005 the Regional Administrative Court (Wojewódzki
Sąd Administracyjny) quashed the decisions of 31 August
and 26 October 2001.
On
21 October 2005 the Mayor of Włocławek District (Starosta
Powiatu) was appointed as the competent administrative authority
to deal with the applicant's case.
On
23 November 2005 the applicant was informed that all evidence had
been obtained.
On
21 February 2008 the applicant complained about the inactivity of the
Mayor of Włocławek District to the Kujawsko-Pomorski
Governor's Office.
On 17 April 2008 the Mayor of Włocławek
District acknowledged the delay in the proceedings and informed the
applicant that the persons responsible for the delay would be
identified.
By a decision of 21 May 2008 the Kujawsko-Pomorski
Governor informed the applicant that a decision
would be issued by 31 July 2008.
On
21 August 2008 the Mayor of Włocławek District
gave a decision. It decided to restore to the applicant real estate
no. 143/1. She was ordered to repay the compensation received
by her parents for the expropriation of that plot.
This decision became final on 5 September 2008. The applicant has
refused to take possession of the plot, as it is inhabited.
C. Civil proceedings for payment
On
20 September 2003 the applicant lodged a claim for compensation for
the alleged unlawful actions of the Włocławek Community.
She submitted that for eleven years she could not use her real
estate.
On
12 April 2005 the Włocławek Regional Court (Sąd
Okręgowy) gave judgment and dismissed the applicant's claim.
The applicant appealed.
On
19 April 2006 the Gdansk Court of Appeal (Sąd Apelacyjny)
upheld the first-instance judgment. The applicant was served with the
judgment on 10 October 2006. It appears that the applicant
did not lodge a cassation appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic law and
practice concerning remedies for the excessive length of
administrative proceedings, in particular the applicable provisions
of the Code of Administrative Procedure and the Act on Proceedings
before Administrative Courts, are described in the cases of Grabiński
v. Poland no. 43702/02,
§§ 60-65, 17 October 2006, Koss
v. Poland, no. 52495/99,
§§ 21-25, 28 March 2006, and Kaniewski
v. Poland no. 8049/02,
§§ 22-28, 8 November 2005.
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.
A. Admissibility
1. General remarks
The Government first submitted that the applicant had
been involved in three sets of administrative proceedings, the length
of which should be assessed separately. They noted that each set of
proceedings had concerned a different motion and each had been
concluded with a different decision. In that respect they argued that
“the first set of proceedings” had lasted from 8 February
1989 until 12 August 1992; “the second set of proceedings”
had lasted from 7 September 1992 until 12 November 1999 and “the
third set of proceedings” had lasted from 29 May 2000 until 21
August 2008.
The
applicant's representative opposed the Government's proposal to
assess the length of the proceedings separately.
The
Court notes that the first motion was lodged by the applicant's
mother on 8 February 1989. The proceedings were, however, for reasons
not explained to the Court, discontinued on 12 August 1992 (see
paragraph 16 above). Subsequently, a motion requesting restitution of
the entire property was lodged on 7 September 1992. The Court further
notes that on 27 February 1995 the applicant requested to have a
part of the property returned (see paragraph 27 above). The Court is
of opinion that by lodging this request – and therefore asking
for the property in question to be divided into two parts - the
applicant wanted to simplify the procedure and in consequence, to
accelerate the proceedings. It appears that the applicant's choice of
legal action was indeed correct, as the decision returning a part of
her property was already given on 12 November 1999. Accordingly, the
applicant's motion of 28 May 2000 (paragraph 38 above) is to be seen
as a consequence of her earlier choice of action (see paragraph 27
above) and not as a new motion initiating a different set of
proceedings. The Court finds it immaterial that the proceedings were
concluded with different decisions (see paragraphs 37 and 47 above),
as the proceedings were initiated by a motion lodged on 8 February
1989, aiming at acquisition of the entire property in question. For
those reasons the Court considers that the length of the proceedings
should be assessed globally.
2. Incompatibility ratione temporis and incompatibility
with the requirement of the submission of the application within a
six month time-limit
The
Government submitted that “the first set of proceedings”
and a part of “the second set of proceedings” were
incompatible ratione temporis, as the Court's jurisdiction
covered only the period after the date of ratification of the
Convention or its Protocols by the respondent State. They further
submitted that the complaint concerning the length of “the
first set of proceedings” and the length of “the second
set of proceedings” were inadmissible for failure to comply
with a six-month time-limit.
The
applicant's representative contested these arguments.
The Court's jurisdiction ratione
temporis covers only the period
after the date of ratification of the Convention and its Protocols by
the respondent State.
In
the present case the Court decided that the length of the
administrative proceedings should be assessed globally (see paragraph
56 above). The Court recalls that Poland recognised the right of
individual petition on 1 May 1993; hence, the Court's
jurisdiction began on that date. However, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time (see paragraph 73
below). Having regard to the above, the Court does not find it
necessary to examine the Government's objection.
As
to the alleged incompatibility with the 6-month time-limit, the Court
is of the opinion that in view of its findings above (see paragraph
56 above), it is no longer necessary to rule on
the matter.
3. Exhaustion of domestic remedies
The
Government raised a preliminary objection that the applicant had not
exhausted domestic remedies, as required by Article 35 § 1 of
the Convention. They maintained that the applicant had a possibility
of seeking compensation for the damage resulting from the excessive
length of proceedings before the Polish courts under Article 417 of
the Civil Code and additionally, from 1 September 2004, under
Article 417¹ § 3 of the Civil Code.
The Government stressed that although the applicant made use of the
remedy provided under Article 417 of the Civil Code, her action was
lodged against the Włocławek Community, whereas she should
have brought an action against all the authorities involved in the
proceedings (see paragraphs 48-50 above).
They
further submitted that in the course of “the third set of
proceedings” – that is between 29 May 2000 and 21 August
2008 - the applicant could have lodged a complaint under section 16
of 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”), as her appeal had been pending for almost four
years before the Regional Administrative Court.
Giving
examples of the Court's case-law, the applicant's representative
stated that the rule of exhaustion of domestic remedies was neither
absolute nor capable of being applied automatically. He stressed that
the applicant had been unsuccessful in lodging her compensation claim
with the civil court and noted that the fact that her claim was
lodged only against the Włocławek Community and not against
all the authorities, had been a consequence of the
administrative transformations in Poland that resulted in legal
uncertainty and inconsistency in the jurisdiction. In that respect he
also pointed out to several changes of civil law provisions governing
liability in tort.
Lastly,
he emphasised that the Article 417¹ of the Civil Code came into
force on 1 September 2004 only.
The
Court observes that Article 35 § 1 must be applied with some
degree of flexibility and without excessive formalism. The rule
of exhaustion of domestic remedies contained in that provision
requires that normal recourse should be had by an applicant to
remedies which are available and sufficient to afford redress in
respect of the breaches alleged. The existence of the remedies
in question must be sufficiently certain not only in theory but in
practice, failing which they will lack the requisite accessibility
and effectiveness (see, among other authorities, Akdivar and
Others v. Turkey, judgment of 16 September 1996,
Reports of Judgments and Decisions
1996-IV, § 65).
In addition, for the purposes of reviewing
whether the rule of exhaustion has been observed, it is essential to
have regard to the circumstances of the individual case. This means,
in particular, that the Court must take realistic account not only of
the existence of formal remedies in the legal system of the
Contracting State concerned but also of the general context in which
they operate, as well as the personal circumstances of the applicant
(see Akdivar,
cited above,
§ 69).
The Court notes that the
applicant lodged, on several occasions, complaints about inactivity
on the part of the
administrative authorities
responsible for giving a decision (see paragraphs 22, 29, 35 and 44
above). The competent supervision bodies found the complaints
well-founded, apologised for the delays and set new time-limits for
giving a decision (see paragraphs 23-24, 30, 36 and 45-46
above).
The Court further observes that according to Article
417¹ § 3 of the Civil Code no claim for damages resulting
from unreasonable length of administrative proceedings may arise
unless it has been formally determined that there had been an
unlawful failure to issue an administrative decision within the
relevant time-limits. The Court also notes that the provision relied
on by the Government entered into force on 1 September 2004. It also
observes that prior to that date the applicant resorted to remedies
designed to accelerate the process of obtaining an administrative
decision, namely an appeal under Article 37 of the Code of
Administrative Procedure (see paragraph 65 above).
Furthermore, the Court notes that the Government
provided an example of the domestic courts' judgments indicating that
a claim for compensation based on Article 417 of the Civil Code
could, in some circumstances, be an effective remedy. However, the
judgment relied on by the Government was, at
the time of its delivery, no more than an isolated example of
jurisprudence, rather than a sufficiently established judicial
practice and it cannot therefore be regarded as presenting a
consolidated and well-established judicial practice (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).
Moreover,
leaving aside the fact that when claiming compensation under Article
417 of the Civil Code the applicant directed her action merely
against the Włocławek Community, the Court notes that her
claim was in any event unsuccessful.
In
so far as the Government submit that the applicant has failed to make
use of the remedy provided under the 2004 Act, the Court notes that
this complaint could only be brought in respect of the proceedings
before the Regional Administrative Court – that is the part of
the procedure which was not exceptionally lengthy. Moreover, the
proceedings before the administrative court ended on 21 June 2005,
that is shortly after the 2004 Act entered into force.
In
any event, the Court notes that the overall length of the proceedings
in the present application occurred essentially before the
administrative authorities, rather than before the administrative
court. In view of the above, the Court is of
the opinion that having exhausted the available remedy under Article
37 of the Code of Administrative Procedure, the
applicant was not required to embark on another attempt to obtain
redress by lodging a complaint under the 2004 Act.
In
these circumstances the Court is of the opinion that the remedies the
applicant used were adequate and sufficient to afford her redress in
respect of the alleged breach (see Puczyński
v. Poland, no. 32622/03, § 36,
8 December 2009).
It
follows that the Government's plea of inadmissibility on the ground
of non exhaustion of domestic remedies must be dismissed.
4. Conclusion as to 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 Government refrained from expressing an opinion on
the merits of the complaint.
The
applicant's lawyer submitted in general terms that the proceedings
had been unreasonably lengthy and that the several unjustified delays
in the proceedings were not attributable to the applicant, but to the
authorities.
The
Court notes that the proceedings commenced on 8 February 1989.
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 21 August 2008. It thus lasted fifteen years and
some three months.
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).
The Court considers that the case involved a certain
degree of complexity. There is, on the other hand, nothing to suggest
that the applicant's activities unduly contributed to the delay in
the examination of her case. On the contrary, the Court is of the
opinion that the applicant's request for partial restitution of the
property had in fact expedited the procedure for restoration.
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. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
TO THE CONVENTION
The applicant complained that her property had
unlawfully been taken by the State and kept in their possession,
despite their obligation, arising under the Land Administration and
Expropriation Act of 1985, to return it to the original owner. In
that respect the applicant further alleged that the length of the
proceedings for restitution infringed her right to the peaceful
enjoyment of her possessions. The applicant invoked Article 1 of
Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
The
Government submitted that the Court had competence to examine the
facts of the present case with respect to the impugned violation of
the provisions of Article 1 of Protocol No. 1 to the Convention only
in so far as they occurred after 10 October 1994.
They further submitted that the
applicant lacked standing, as she could not claim to be a victim of a
violation of the Convention. In that respect they underlined that the
property in question had been in the lawful possession of the State,
as the applicant's parents had received compensation for the property
taken from them and the amount thereof had never been questioned by
the applicant. They also noted that the State was under no obligation
to return the property in question.
Lastly, the Government expressed
their opinion that the issue of length of the proceedings could not
automatically result in a finding of a violation of the applicant's
right to a peaceful enjoyment of her possessions. They submitted that
the complaint about the length of the restitution proceedings was to
be examined under Article 6 § 1 of the Convention only.
The
applicant's lawyer did not agree with the Government's submissions.
He pointed to the 14 March 1990 judgment of the Supreme
Administrative Court (see paragraph 13 above), in which the court
stated that in accordance with the Supreme Court's resolution of 20
February 1986, a transfer of a real estate to the State Treasury
under a sale contract was to be considered an expropriation for the
purposes of the restitution proceedings.
In that respect he referred to the 1985 Land Administration and
Expropriation Act, which stated that any real estate expropriated by
the State was to be returned to its former owners at their request,
if a property was no longer necessary for the public interest reason
that justified the expropriation.
Lastly,
he submitted that the compensation received by the applicant's
parents in the 1980s for the property in question had not
corresponded to its real value.
The Court's jurisdiction ratione temporis
covers only the period after the date of ratification of the
Convention and its Protocols by the respondent State. The Court notes
that, in respect of Poland, Protocol No. 1 to the Convention entered
into force on 10 October 1994.
It follows that in so far as the applicant complains about the taking
of her property and the amount paid to her in compensation, her
complaint is incompatible ratione temporis with the provisions
of the Convention within the meaning of Article 35 § 3
and must be rejected in accordance with Article 35 § 4.
As
to the applicant's victim-status, according to Article 34 of the
Convention, “the Court may receive applications from any person
... claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention
or the Protocols thereto ...”.
The Court further recalls that Article 1 of Protocol
No. 1 cannot be interpreted as imposing any general obligation on the
Contracting States to restore property which was transferred to them
before they ratified the Convention. Nor does Article 1 of Protocol
No. 1 impose any restrictions on the Contracting States' freedom to
determine the scope of property restitution and to choose the
conditions under which they agree to restore the property rights of
former owners (see Kopecký v. Slovakia [GC],
no. 44912/98, § 35(d), ECHR 2004-...).
The Court notes that under the Land Administration and Expropriation
Act of 29 April 1985 and in view of the Supreme Court's
resolution of 20 February 1986 (see
paragraph 13 above), the applicant had a possibility of lodging a
claim with the domestic authorities, requesting the restitution of
the property taken from her, provided that it was no longer required
by the State for the public interest reasons for which it had been
expropriated. The applicant lodged such a claim and, by decisions of
12 November 1999 and 21 August 2008 (see paragraphs 37 and 47
above), the property was entirely restored to her. Thus, the
applicant's claim for restitution was fully satisfied by the national
authorities. In view of that, the applicant does not have any legal
interest in pursuing her complaint under Article 1 of Protocol No. 1
and consequently, she cannot be considered a victim of a violation of
the impugned provision.
Consequently,
what remains to be examined by the Court is the issue of the length
of the proceedings. However, in so far as the applicant complains
that the length of the restitution proceedings resulted in a breach
of the right to peaceful enjoyment of her possessions, the Court
considers, in view of its finding under Article 6 § 1 (see
paragraph 77 above), that Article 1 of Protocol No.1 complaint does
not give rise to any separate issue (see Zanghì v. Italy,
judgment of 19 February 1991, Series A no. 194-C, p. 47, § 23;
Beller v. Poland, no. 51837/99, § 74, 1 February 2005).
Having regard to the foregoing, the Court finds that
the applicant's complaint under Article 1 of Protocol No. 1 must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention, as being manifestly ill founded.
IV. 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 2,913,387.56 Polish zloty (PLN) in respect of
pecuniary damage and PLN 170,000 in respect of non-pecuniary damage
(PLN 100,000 in respect of Article 6 complaint and PLN 70,000 in
respect of her complaint under Article 1 of Protocol No. 1 to the
Convention).
The
Government contested these claims. They argued that the applicant's
claim for pecuniary damage was wholly unjustified and her claim for
non-pecuniary damage was excessive and inconsistent with the Court's
case-law.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
The Court considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards award
her EUR 11,100 under that head.
B. Costs and expenses
The
applicant's lawyer claimed PLN 15,495.00 for the costs of legal
assistance and other expenses. They presented bills for legal
representation before the Court amounting to PLN 12,200 and other
bills for the costs of translation, expert's opinion and costs
incurred in the domestic proceedings.
The
lawyer's additional costs for legal representation were not included
in the file, as belated.
The
Government contested these claims. They argued that compensating the
applicant for translation costs in a situation where she has been
represented by a lawyer was unjustified. Moreover, they claimed that
some of the applicant's demands concerned costs incurred before the
domestic courts.
Regard
being had to the documents in its possession and to its case-law, the
Court considers it reasonable to award the sum of EUR 3,000 for costs
and expenses in 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 complaint under Article 6 § 1
of the Convention 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 11,100
(eleven thousand one hundred euros) in respect of non pecuniary
damage and EUR 3,000 (three thousand euros) for costs and expenses,
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
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 14 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
