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FOURTH SECTION

CASE OF TARNOWSKI AND OTHERS v. POLAND

(Application no. 43939/07)

JUDGMENT

STRASBOURG

27 September 2011

This judgment is final but it may be subject to editorial revision.

In the case of Tarnowski and Others 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 6 September 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 43939/07) 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 three Polish nationals, Mr Juliusz Tarnowski, Mr Marek Tarnowski and Mr Aleksander Tarnowski (“the applicants”), on 15 October 2003.

2. The applicants, who had been granted legal aid, were represented by Mr P. Boroń, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

On 11 May 2009 the President of the Fourth Section decided to give notice of the application to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants, Mr Juliusz Tarnowski, Mr Marek Tarnowski and Mr Aleksander Tarnowski are siblings. They are Polish nationals who were born in 1929, 1932 and 1934 respectively and live in Kraków and Sopot.

The applicants are heirs of the owner of plots of land and buildings, which constituted a property called “Końskie Wielkie – Pałac”. The property was expropriated by the State by virtue of the 1944 Decree on Agrarian Reform and confiscated in January 1945.

However, the relevant authorities failed to issue an appropriate administrative decision, declaring that the property had been subject to expropriation within the framework of the agrarian reform.

In 1965 the State Treasury’s ownership over the property was entered in the land and mortgage register.

A. Administrative proceedings concerning the applicants’ right to the property

On 16 July 1996 the applicants requested the Kielce Governor to issue a decision stating that the property “Końskie Wielkie – Pałac” should not have been subject to expropriation under section 2 § 1 (e) of the 1944 Decree on Agrarian Reform.

On 30 May 1997 the Kielce Governor dismissed the applicants’ request, finding that the property had met the criteria for expropriation set out in the 1944 Decree. The applicants appealed on 21 June 1997.

On 4 August 1999 the applicants complained about inactivity on the part of the Minister of Agriculture.

On 14 September 1999 the applicants lodged another complaint about inactivity on the part of the Minister of Agriculture with the Supreme Administrative Court.

On 8 December 1999 the Minister of Agriculture dismissed the applicants’ appeal against the decision of the Kielce Governor of 30 May 1997.

On 31 May 2001 the Supreme Administrative Court allowed the applicants’ appeal against the Minister’s decision, finding that the administrative authorities had erred in law in that they had failed to give persuasive grounds for their decisions. The court quashed the first- and the second instance decisions.

On 1 July 2002 the applicants requested a stay of the proceedings since the Kielce Regional Court had resumed parallel civil proceedings (see 2. below). On 14 August 2002 the Kielce Governor refused to grant their request. On 28 August 2002 the applicants lodged an interlocutory appeal with the Minister of Agriculture.

On 7 February 2003 the applicants lodged a complaint about inactivity on the part of the Minister of Agriculture. On 20 March 2003 the applicants lodged another complaint about inactivity on the part of the Minister of Agriculture with the Supreme Administrative Court.

On 6 November 2003 the Minister of Agriculture discontinued the appellate proceedings (concerning the applicants’ request for the proceedings to be stayed) following the withdrawal of their interlocutory appeal.

On 31 March 2005 the Kielce Governor discontinued the administrative proceedings on the merits of the applicants’ case finding that the civil courts were competent to deal with it. The applicants appealed on 20 April 2005 to the Minister of Agriculture.

On 5 June 2006 the Chamber of seven judges of the Supreme Administrative Court adopted a resolution on procedure to be followed in the examination of cases concerning claims for restitution of property expropriated on the basis of the 1944 Decree on Agrarian Reform. The court ruled that the administrative authorities were competent to deal with such cases.

On 30 June 2005 the applicants lodged a complaint about inactivity on the part of the Minister of Agriculture. On 7 September 2005 they withdrew their appeal, having regard to the resolution of the Supreme Administrative Court (see paragraph 18 above).

On 28 September 2005 the Minister upheld the decision of the Kielce Governor of 31 March 2005 by which the latter had discontinued the proceedings.

On 23 June 2006 the applicants requested the Minister to re open the administrative proceedings. The proceedings were subsequently re opened on 11 July 2008.

On 30 January 2009 the Świętokrzyski Governor gave a decision. He held that the provisions of the 1944 Decree on Agrarian Reform were applicable to the Końskie Wielkie – Pałac property. The applicants appealed.

On 23 April 2009 Mr Juliusz Tarnowski complained to the Regional Administrative Court about the Minister’s failure to give a second instance decision on the merits of the case.

On 18 May 2009 the Minister of Agriculture dismissed the applicants’ appeal and upheld the contested decision of 30 January 2009.

On 29 May 2009 the Warsaw Regional Administrative Court, having examined the applicants’ complaint about the Minister’s failure to act in the case, discontinued the proceedings, having found that the Minister had given his decision on 18 May 2009.

On 30 November 2009 the Warsaw Regional Administrative Court again allowed the applicants’ appeal against the decision of 18 May 2009. That court quashed the first- and second instance decisions given in the applicants’ case, finding that there were not in compliance with the applicable laws and that the authorities had failed to give persuasive grounds for them.

On 3 March 2010 the Końskie Municipality and the Minister of Agruculture filed a cassation appeal against this judgment with the Supreme Administrative Court.

The proceedings are currently pending before that court.

B. Civil proceedings for rectification of an entry in the land and mortgage register

On 16 July 1996 the applicants instituted civil proceedings for rectification of an entry in the land and mortgage register of the property concerned. They submitted that in the absence of a formal expropriation decision given in respect of that property they should be listed as owners.

Hearings were held on 8 January and 9 April 1997. On 9 April 1997 the Kielce Regional Court stayed the proceedings pending the outcome of the above administrative proceedings.

On 15 April 1997 the Kielce Regional Court gave an interlocutory decision, securing the applicants’ claims by entering a warning in the land and mortgage register as to the veracity of the entry about the State Treasury’s ownership.

On 18 April 2002, following the applicants’ request, the Kielce Regional Court resumed the proceedings.

On 8 January 2003 the Kielce Regional Court stayed the proceedings pending the outcome of the administrative proceedings. The applicants lodged an interlocutory appeal on 19 February 2003. On 19 August 2003 the Cracow Court of Appeal dismissed their appeal.

On 31 May 2005 the applicants requested the court to resume the proceedings as the administrative authorities had declared that the civil courts had been competent to deal with their case (see the decision of the Kielce Governor of 31 March 2005, paragraph 17 above). The court resumed the proceedings on a later date.

On 25 January 2006 the Kielce Regional Court gave judgment in the applicants’ favour ordering that their ownership be entered in the land and mortgage register. The applicants’ opponents, the State Treasury and the Końskie Municipality, appealed against that decision.

On 12 September 2006, following the State’s Treasury request, the Cracow Court of Appeal stayed the appellate proceedings, having regard to the resolution given by the Supreme Administrative Court (see paragraph 18 above). Subsequently, the proceedings were resumed.

On 12 October 2010 the Kraków Court of Appeal discontinued the appellate proceedings, having regard to the fact that they had been stayed on 23 September 2009 and that the parties had not requested that they be resumed.

C. Proceedings under the 2004 Act

On 8 March 2005 the applicant, Mr J. Tarnowski, lodged a complaint with the Cracow Court of Appeal under the Act of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (“the 2004 Act”) in the proceedings pending before the civil court (see paragraph 29 37 above). The applicant claimed just satisfaction in the amount of PLN 1. He also requested the court to undertake relevant actions in order to expedite and resume the proceedings for rectification of the entry in the land and mortgage register.

On 26 April 2005 the Cracow Court of Appeal dismissed the complaint. The court found that the civil proceedings had been handled properly. The court referred to the fact that there had been no undue delay in the proceedings after the date of entry into force of the 2004 Act on 17 September 2004. The court acknowledged that the proceedings had been stayed from 8 January 2003. However, in the Court’s view, that delay had not been “unreasonable” within the meaning of the 2004 Act. It found that the applicant should have submitted a request to resume the proceedings following the delivery of the decision of the Kielce Governor of 31 March 2005.

II. RELEVANT DOMESTIC LAW AND PRACTICE

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings 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 concerning remedies for the length of administrative proceedings is summarised in detail in the judgment Berent Derda v. Poland, no. 23484/02, §§ 27-35, 1 July 2008; see also Grabiński v. Poland, no. 43702/02, §§ 60-65, 17 October 2006.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicants complained that the length of the administrative and civil proceedings in their cases 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...”

A. Civil proceedings

1. Admissibility

The Government raised a preliminary objection that the applicants had not exhausted the domestic remedies available to them under Polish law, as required by Article 35 of the Convention.

As regards the judicial proceedings concerning the ownership entry in the land and mortgage register, the Government submitted that only Mr Juliusz Tarnowski had lodged his complaint about the excessive length of the proceedings under the provisions of 2004 Act. Neither Mr Marek Tarnowski nor Mr Aleksander Tarnowski had had recourse to that remedy. By failing to do so, they had failed to comply with the requirements of exhaustion of domestic remedies in respect of the complaint about excessive length of those proceedings.

The applicants disagreed.

The Court reiterates that under Article 35 § 1 of the Convention, the Court may only deal with complaints after all domestic remedies have been exhausted.

The Court considers that the applicants were required by Article 35 of the Convention to lodge a complaint of a breach of the right to trial within a reasonable time with the domestic court under the 2004 Act in respect of the proceedings for rectification of an entry in the land and mortgage register and the proceedings for compensation. However, only Mr Juliusz Tarnowski availed himself of this remedy.

It follows that this part of the application in respect of Mr Marek Tarnowski and Mr Aleksander Tarnowski must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

The Court notes that the remainder of this complaint is not manifestly ill founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

The period to be taken into consideration began on 16 July 1996 and ended on 12 October 2010. It thus lasted fourteen years and nearly four months for two level of jurisdiction.

51. 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).

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.

There has accordingly been a breach of the right to have his case heard within a reasonable time within the meaning of Article 6 § 1 of the Convention in respect of Mr Juliusz Tarnowski.

B. The administrative proceedings

1. 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.

2. Merits

The period to be taken into consideration began on 16 July 1996 and has not yet ended as the cassation proceedings are currently pending before the Supreme Administrative Court (see paragraph 28 above). It has thus lasted fifteen years [and ... months, depending on the date when the judgment is adopted] for three levels of jurisdiction.

57. 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).

58. The Court notes that the case was twice remitted, the administrative courts finding that the administrative authorities had erred in law by failing to give sufficient grounds for their decisions. It reiterates that in a number of cases it has found that the repetitive re-examination of cases within one set of proceedings disclosed a deficiency in the domestic legal system (see, e.g., Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003).

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).

There has accordingly been a breach of the applicants’ right to have their case heard within a reasonable time within the meaning of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

62. The applicants further complained of the fact that in Poland there was no court to which application could be made to complain of the excessive length of proceedings. They relied on Article 13 of the Convention which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court notes that two of the applicants, Mr M. Tarnowski and Mr A. Tarnowski, failed to avail themselves of the remedy provided for by the 2004 Act (see paragraphs 43-49 above). It also notes that only Mr J. Tarnowski availed himself of that remedy in respect of the proceedings concerning the entry in the land and mortgage register.

The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time. The Court has already found that the remedy under the 2004 Act is effective in respect of a length of proceedings complaint (see, Figiel v. Poland (no. 1), no. 38190/05, 17 July 2008).

It follows that this part of the application is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

The applicants complained that the length of the proceedings for restitution infringed their right to the peaceful enjoyment of their possessions. They relied on Article 1 of Protocol No. 1 to the Convention, which reads:

“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 Court first 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 the applicants chose to challenge the results of the de facto expropriation by, inter alia, instituting civil proceedings for rectification of an entry in the land and mortgage register. Their claim was allowed by a judgment given on 25 January 2006 (see paragraph 35 above). Subsequently the appellate proceedings instituted following the appeal brought by the defendant State Treasury and the Końskie Municipality were discontinued and that judgment became final. Thus, in so far as it can be said that this judgment had incidence on the applicants’ right to the peaceful enjoyment of their possessions, their claim was satisfied by the national authorities. In view of that, the applicants do not have any legal interest in pursuing their complaint under Article 1 of Protocol No. 1 and consequently, they cannot be considered victims of the violation of the impugned provision.

The Court further notes that the applicants had also a possibility of lodging a claim with the domestic authorities, requesting the restitution of the property taken from their legal predecessors. The applicants lodged such a claim with the administrative authorities and requested that a decision be given that the property concerned should not have been subject to expropriation under the provisions of the Decree on Agrarian Reform (see paragraph 8 above). The proceedings are currently pending before the Supreme Administrative Court (see paragraph 28 above). In so far as the applicants complain that the length of the restitution proceedings resulted in a breach of their right to peaceful enjoyment of their possessions, the Court considers, in view of its finding under Article 6 § 1 (see paragraphs 54 and 61 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 applicants’ 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 applicants claimed 18,427,33 Polish zloty (PLN) in respect of pecuniary damage resulting from the alleged failure of the authorities to restore the property concerned to the applicants and PLN 14,600,000 and PLN 170,000 in respect of lost profits. They further claimed EUR 10,000 for each of them in respect of non-pecuniary damage resulting from the circumstances of the case.

The Government contested these claims. They argued that the applicants’ claim for damage was wholly unjustified.

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, the Court considers that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis and having regard to the Court’s case law in similar cases it awards EUR 10,000 to each of the applicants.

B. Costs and expenses

The applicants also claimed EUR 1,743 EUR each for the costs and expenses incurred in the proceedings before the Court. They submitted relevant bills.

The Government contested the claim.

Regard being had to the documents in its possession and to its case law, the Court considers that the sum claimed should be awarded in full.

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 and civil proceedings in respect of Mr J. Tarnowski admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the administrative proceedings in respect of the applicants;

Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the civil proceedings in respect of Mr J. Tarnowski;

Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into Polish zlotys at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,743 (one thousand seven hundred and forty-three euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(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 applicants’ claim for just satisfaction.

Done in English, and notified in writing on 27 September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Ljiljana Mijović Deputy Registrar President