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Cite as: [2012] ECHR 273

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FOURTH SECTION

DECISION

Application no. 41753/09
Lidia DASZUTA
against Poland

The European Court of Human Rights (Fourth Section), sitting on 31 January 2012 as a Committee composed of:

Päivi Hirvelä, President,
Ledi Bianku,
Zdravka Kalaydjieva, judges,

and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 26 July 2009,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the comments submitted by the parties,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Lidia Daszuta, is a Polish national who was born in 1921 and lives in Gdynia. She is represented before the Court by Mr J. Jezierski, a lawyer practising in Rumia. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

1. Proceedings common to the whole of the disputed property

By a notary deed of 9 September 1974 the applicant’s plots of land (49.629 m²) located in Gdynia were expropriated. The applicant received compensation for the expropriated property. The land was intended to be used for the construction of a shipyard, a public parking lot and hotels for workers.

On 27 October 2006 the applicant lodged an application for restitution of her property. She argued that the property was no longer required by the State for the public-interest purposes that had originally justified the expropriation, as none of the planned work had been carried out.

On 19 December 2006 the Pomorski Governor (Wojewoda) transferred the application to the Mayor of Gdańsk (Prezydent Miasta Gdańsk).

On 15 May 2007 the applicant’s legal representative requested the Mayor to specify the time-limit for examining the application.

On 19 June 2007 the Mayor informed the applicant that her application would be examined by the end of March 2008.

On 4 April 2008 the applicant’s representative lodged a complaint under Article 37 of the Code of Administrative Procedure with the Pomorski Governor, alleging inactivity of the Mayor of Gdańsk.

On 5 August 2008 the Pomorski Governor allowed the complaint and fixed an additional 2-month time-limit for the Mayor to examine the application.

On 24 August 2008 a new lawyer appointed by the applicant requested the Mayor of Gdańsk to inform him about the stage reached in the proceedings.

2. Proceedings relating to plots no. 684/17, 684/7, 684/8, 684/20 and 684/22

On 2 October 2008 the applicant’s lawyer lodged a motion for a partial restitution of the property (plots no. 684/7, 684/8 and 684/17). He indicated that a partial decision could accelerate the proceedings.

On 22 January 2009 the applicant’s lawyer declared that the applicant wished to withdraw her claims concerning certain of the disputed plots of land.

On 26 January 2009 the applicant’s other representative corrected the statement submitted on 22 January 2009. The applicant’s position was finally clarified on 10 February 2009.

On 27 February 2009 the Mayor of Gdańsk decided to restore to the applicant plots no. 684/17, 684/7 and 684/8. The applicant was ordered to repay the compensation of 156,048 Polish zlotys (PLN), the amount which was to represent the amount received for the expropriated land in 1974. The authorities admitted that the property in question was no longer necessary for the purposes that had originally justified the expropriation.

On 17 March 2009 the Mayor of Gdynia appealed against the decision.

On 21 May 2009 the Pomorski Governor quashed the decision and remitted the case. The Governor noted that the Mayor of Gdańsk had failed to specify that the decision concerned a partial restitution of property. He further observed that the Mayor had not provided any explanation concerning the manner in which the compensation amount had been calculated.

On 10 September 2009 the Mayor of Gdańsk gave a decision restoring plots no. 684/17, 684/7, 684/8, 684/20 and 684/22 to the applicant against payment of PLN 270,081. The Mayor of Gdynia appealed against the decision.

By a decision of 23 November 2009 the Pomorski Governor in essence upheld the first-instance decision.

On 21 December 2009 the Mayor of Gdynia lodged an appeal against the decision with the Gdańsk Regional Administrative Court (Wojewódzki Sąd Administracyjny). He claimed, inter alia, that the property in question was still needed by the State for the purposes that had originally justified the expropriation.

By a judgment of 15 April 2010 the Gdańsk Regional Administrative Court dismissed the appeal. The Mayor of Gdynia lodged a cassation appeal against the judgment.

On 3 November 2010 the Supreme Administrative Court dismissed the cassation appeal.

3. Proceedings concerning the remaining plots of land

On 29 May 2009 the applicant’s son – J.R.D. – acting as her representative, addressed a petition to the Minister of the Interior and Administration (Minister Spraw Wewnętrznych i Administracji), complaining that the Mayor of Gdańsk and the Pomorski Governor had been inactive.

On 13 August 2009 the applicant’s lawyer addressed a petition to the Prime Minister. He complained about the situation of his client and alleged inactivity of the Minister of the Interior and Administration on account of the latter’s failure to respond to the applicant’s petition of 29 May 2009.

On 14 February 2010 the applicant’s lawyer lodged a complaint under Article 37 of the Code of Administrative Procedure with the Pomorski Governor, alleging inactivity of the Mayor of Gdańsk.

On 12 March 2010 the Mayor of Gdańsk informed the applicant that the legal status of plot no. 666/10 had not yet been clarified and that evidence in that respect needed to be obtained. He further stated that he would take a position on that issue only by 30 September 2010, due to the large number of fairly complex applications for restitution of property pending before the Municipal Office (Urząd Miejski).

On 17 March 2010 the applicant’s lawyer reminded the Municipality Office that his client was 90 years old and that her application had been pending for some 5 years. He further noted that the volume of complex applications lodged with the Mayor’s Office was of no interest to his client and should not have had any effect on the examination of her application.

On 21 April 2010 the Pomorski Governor ordered the Mayor of Gdańsk to accelerate the proceedings, setting an additional 2 month time limit for a decision to be issued.

On 30 September 2010 the Mayor of Gdańsk gave a decision refusing to restore to the applicant plot no. 666/10. The applicant appealed.

On 25 November 2010 the Pomorski Governor quashed the decision and remitted the case, holding that the Mayor of Gdańsk had manifestly disregarded the provisions of the Code of Administrative Procedure.

On 12 March 2011 the applicant’s lawyer requested the Mayor of Gdańsk to accelerate the proceedings.

The proceedings are still pending before the Mayor of Gdańsk.

B. Relevant domestic law and practice

1. Provisions concerning inactivity of administrative authorities

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 set out at length 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.

On 11 April 2011 an amendment to the Code of Administrative Procedure and the Law on the Procedure before Administrative Courts entered into force. Pursuant to the new regulations, a party to administrative proceedings may complain, by means of the hierarchical complaint under Article 37 of the Code of Administrative Procedure as well as the subsequent complaint lodged with the administrative court, not only about the administrative authority’s failure to issue an administrative act within the time-limit prescribed by law, but also about the “protracted conduct of the proceedings” (przewlekłe prowadzenie postępowania).

2. Provisions concerning the right to restitution of expropriated property

The right to restitution of expropriated property is regulated by the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami).

Section 136 (3) of the Act provides that a former owner of the expropriated property or his/her heirs may request that the property taken away from them be restored, provided that it is no longer necessary for the public purposes that justified the expropriation.

COMPLAINTS

The applicant complained under Article 6 of the Convention that the length of the proceedings in her case had been excessive.

The applicant further alleged, invoking Article 3 of the Convention, that given her advanced age the inactivity of the administrative authorities in her case had amounted to humiliation.

Finally, the applicant complained under Article 1 of Protocol No. 1 to the Convention that the authorities had not restored to her the disputed property despite her statutory entitlement to have the property restored.

THE LAW

A. Alleged violation of Article 6 of the Convention

The applicant complained that the length of the administrative proceedings in her case 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...”

1. The parties’ submissions

39. The Government argued that the applicant had failed to exhaust available domestic remedies, as in view of the continuing inactivity of the Mayor of Gdańsk following her two consecutive hierarchical complaints under Article 37 of the Code of Administrative Procedure, she had not lodged a further complaint in this respect with the competent administrative court. The Government also stressed that as of 11 April 2011, i.e. the date of the entry into force of the amendment to the Code of Administrative Procedure, the hierarchical complaint under Article 37 of the Code of Administrative Procedure became even more effective, as the amended legal provisions made it possible to complain not only about the authorities’ failure to issue an administrative decision within the time-limits prescribed by law, but also, expressis verbis, about the protracted conduct of the proceedings. The Government argued that the applicant had not had recourse to the improved remedy after the relevant amendment had entered into force. Likewise, she had not sought compensation on account of the excessive length of the proceedings by lodging a civil claim under Article 417 of the Civil Code.

The Government further argued that the applicant had not suffered any significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention, as most of the disputed property had already been returned to her and the surface of the remaining plots of land being still at dispute amounted to 7,577 sq m, constituting merely twenty-two per cent of what had originally been at stake.

The applicant’s lawyer disagreed with the Government’s objections. He argued, inter alia, that the applicant’s hierarchical complaints under Article 37 of the Code of Administrative Procedure had proved ineffective and that the authorities, including the Minister of the Interior and Administration and the Prime Minister, had failed to properly react to the omissions of the Mayor of Gdańsk and of the Pomorski Governor.

2. The Court’s assessment

(a) Proceedings relating to plots nos. 684/17, 684/7, 684/8, 684/20 and 684/22

Insofar as the complaint concerns the proceedings relating to plots nos. 684/17, 684/7, 684/8, 684/20 and 684/22, the Court finds it unnecessary to examine whether the applicant exhausted the available domestic remedies or whether she suffered any significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention, as the relevant part of the application is inadmissible for the following reasons.

The Court notes that the impugned administrative proceedings commenced on 27 October 2006 and were finally terminated by the judgment of the Supreme Administrative Court of 3 November 2010 (§ 20). Accordingly, the overall length of these proceedings amounted to 4 years and 7 days, during which the case was examined by four levels of jurisdiction (the Mayor of Gdańsk, the Pomorski Governor, the Gdańsk Regional Administrative Court and the Supreme Administrative Court).

Having regard to its established case-law, as well as to the circumstances of the present case, in particular the number of decisions and judgments given in the course of the proceedings and the number of levels of jurisdiction having examined the case, the Court finds that the length of the impugned proceedings does not appear to be excessive. It follows that this part of the application is manifestly ill founded and must be rejected pursuant to Article 35 § 3 (a) of the Convention.

(b) Proceedings relating to the remaining plots of land

Insofar as the complaint concerns the proceedings relating to the remaining plots of land, the Court considers it appropriate to examine first whether the applicant has exhausted the available domestic remedies, as required by Article 35 § 1 of the Convention.

The Court reiterates that the purpose of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford Contracting States an opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. In that way Article 35 § 1 obliges the applicant to try available remedies that relate to the alleged breach (see, among other authorities, Bukowski v. Poland (dec.), no. 38665/97, 11 June 2002).

In the instant case the Court notes that the applicant lodged, on two occasions, a hierarchical complaint under Article 37 of the Code of Administrative Procedure (§§ 7, 23). These complaints proved unsuccessful, as on both occasions the Mayor of Gdańsk, ordered by the Pomorski Governor to issue an administrative decision within the prescribed time limit, failed to do so. However, despite the Mayor’s persistent inactivity, the applicant did not, on any occasion, submit a further complaint with the competent administrative court.

Insofar as the applicant relied on her petitions addressed to the high rank State officials, including the Prime Minister, the Court reiterates that it has already established a list of remedies which it considers to be “effective” in the Polish legal system for the purposes of complaints relating to excessive length of administrative proceedings. A petition directed to a State official, given its very nature, cannot be considered as an effective remedy in this respect (see, mutatis mutandis, Lehtinen v. Finland (dec.), no. 39076/97, 14 October 1999). Accordingly, the Court concludes that the applicant was not absolved from the requirement to lodge a complaint with the competent administrative court by trying, in its stead, to seek intervention of the Minister of the Interior and Administration or the Prime Minister.

Moreover, the Court observes that since the remittal order of 25 November 2010 the proceedings have to date been pending before the Mayor of Gdańsk acting as the first-instance administrative authority. The applicant, despite having lodged her application with the Court on 26 July 2009, can still have recourse to the domestic remedies provided for by the relevant provisions of the Code of Administrative Procedure and the Law on Proceedings before Administrative Courts. The Court cannot but note, however, that although the proceedings have at their current stage been pending before the Mayor of Gdańsk for over one year, the applicant has not, on a single occasion, had recourse to the relevant domestic remedies.

Therefore, the Court finds that the available domestic remedies have not been exhausted.

With regard to the applicant’s failure to pursue civil actions, the Court recalls that the arguments raised by the Government are the same as those already examined by the Court in previous cases against Poland (see Grabiński, cited above, § 74; Boszko v. Poland, no. 4054/03, § 35, 5 December 2006; Puczyński v. Poland, no. 32622/03, § 40, 8 December 2009; Derda, cited above, § 47 and Iskrzyccy v. Poland, no. 9261/02, § 55, 14 September 2010) and the Government have not submitted any new arguments which would lead the Court to depart from its previous findings that those actions could not be considered effective remedies within the meaning of Article 35 § 1 of the Convention. For those reasons, this limb of the Government’s objection must be dismissed.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non exhaustion of domestic remedies.

In view of the foregoing, the Court finds it unnecessary to examine whether the applicant suffered any significant disadvantage within the meaning of 35 § 3 (b) of the Convention.

B. Remaining complaints

The applicant further complained, invoking Article 3 of the Convention, that given her advanced age the inactivity of the administrative authorities in her case had amounted to humiliation. However, the Court finds that the facts complained of by the applicant clearly do not fall within the notion of degrading treatment, or any other category covered by Article 3 of the Convention. Accordingly, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 § 3 (a) of the Convention.

Insofar as the complaint concerns the plots of land covered by the decision of the Pomorski Governor of 23 November 2009, the Court observes that the relevant plots of land have already been returned to the applicant. Accordingly, she can no longer claim to be a victim of the alleged violation of her property rights. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

As to the remaining plots of land, the Court notes that the administrative proceedings instituted by the applicant with a view to having the disputed property returned to her are still pending. Accordingly, leaving aside other admissibility criteria, the Court finds that the complaint is in any event premature and as such must be declared inadmissible for non exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Päivi Hirvelä
Deputy Registrar President