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FOURTH
SECTION
CASE OF PRĄDZYŃSKA - POZDNIAKOW v. POLAND
(Application
no. 20982/07)
JUDGMENT
STRASBOURG
7 July
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Prądzyńska - Pozdniakow v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 16 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 20982/07) 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 a Polish national, Ms Katarzyna
Prądzyńska Pozdniakow (“the applicant”),
on 5 April 2007.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
1 September 2008 the
President of the Fourth Section decided to give notice of the
application to the Government. It also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Warsaw
- The
applicant's family owned a plot of land measuring 1,454 sq. m.
situated in the centre of Warsaw. The applicant is one of the heirs
of the owners of that property. By virtue of the Decree of 26 October
1945 on the Ownership and Use of Land in Warsaw the ownership of all
private land was transferred to the City of Warsaw.
- On
30 September 1948 the applicant's family filed an application for the
grant of the right of temporary ownership (własność
czasowa) of the plot of land pursuant to section 7 of the 1945
Decree (“the 1948 application”). This application was
refused in 1953 and 1954 respectively. In 1955 the State constructed
the Metropol Hotel on part of the land in question.
- On
an unspecified date the plot was divided into two separate parts. On
27 May 1990 the ownership of the first part of the original plot
was transferred to the City of Warsaw by operation of law. It
constituted a part of a larger plot (no. 39) with an overall area of
4,163 sq. m. The second part of the plot, with an area of 636 sq. m,
remained with the State.
- On
29 June 1993 the Board of the Union of Warsaw Municipalities (Zarząd
Związku Dzielnic Gmin Warszawy) issued a decision declaring
that as of 5 December 1990 the “Syrena” Warsaw Tourist
Company had the right of perpetual use of the plot of land no. 39. In
addition, the ownership of the buildings attached to that plot,
including the Metropol Hotel, was transferred to the “Syrena”
company.
A. Proceedings concerning the grant of the right of
perpetual use of land
- On
1 October 1992 S.P., one of the heirs of the applicant's family and
acting on their behalf, filed with the Minister of Planning and
Construction (Minister Gospodarki Przestrzennej i Budownictwa)
an application for annulment of the administrative decisions refusing
to grant temporary ownership. On 24 March 1993 the Minister quashed
the 1953 and 1954 decisions. Consequently, the competent
administrative authorities were required to rule on the 1948
application. The applicant and other heirs of the previous owners
were, as their legal successors, parties to the subsequent
proceedings.
- In
1995 the Minister of Planning and Construction instituted proceedings
with a view to having his earlier decision of 24 March 1993
annulled. On 9 July 1996 the Minister declared the decision of
24 March 1993 null and void. After several appeals, on
11 December 1998 the Supreme Administrative Court quashed
this decision. As a consequence of that judgment, the 1948
application filed by the applicant's family has yet to be examined.
- Initially,
the applicant was a party to two sets of proceedings concerning the
right of perpetual use of the land, which were conducted separately
before the Board of the City of Warsaw (subsequently the Mayor of
Warsaw) and the Warsaw District Office. That situation stemmed from
the fact that the plot of land formerly owned by the applicant's
family had been divided into two separate parts which were
respectively owned by the City of Warsaw and the State. As from
July 2002, following amendments to the relevant laws, the City
of Warsaw became the sole owner of the entire plot of land in
question and the relevant proceedings were conducted exclusively
before the Mayor of Warsaw.
- On
11 June 1996 the Board of the City of Warsaw (Zarząd Miasta
Stołecznego Warszawy) decided of its own motion to stay the
proceedings until the termination of the proceedings instituted by
the Minister of Planning and Construction in 1995 (see above).
This decision was subsequently quashed by the Warsaw Self-Government
Board of Appeal.
- On
12 November 1997 the Board of the City of Warsaw decided to
discontinue the proceedings, considering that they had become devoid
of purpose. On 24 March 1998 the Self Government Board of Appeal
quashed the impugned decision and remitted the case for
re-examination.
- On
16 January 1999 following the Supreme Administrative Court's judgment
of 11 December 1998 (see above), the parties requested the Mayor of
Warsaw to grant them the right of perpetual use.
- In
January 1999 the Mayor of Warsaw began negotiations with the
applicant and other heirs of the former owners with a view to their
renouncing their claims to the plot of land at issue in exchange for
an alternative plot. On 23 March 1999 the applicant and other heirs
accepted the Mayor's proposal. However, on 29 April 1999 the Deputy
Mayor informed them that he had to withdraw from the negotiations as
there were grounds on which the 1948 application could be dismissed.
- On
1 June 1999 the Board of the City of Warsaw refused the application.
Subsequently, S.P. lodged an appeal against this decision.
On 1 June 2000 the Warsaw Self Government Board of
Appeal upheld the Board's decision of 1 June 1999. Upon a further
appeal, on 27 February 2002 the Supreme Administrative
Court quashed the Board of Appeal's decision.
- As
of July 2002 the proceedings concerning the grant of the right of
perpetual use in respect of the entire property of the applicant's
family were conducted before the Mayor of Warsaw.
- On
25 April 2003 one of the parties lodged with the Warsaw Self
Government Board of Appeal a complaint about the inactivity of the
Board of the City of Warsaw.
- On
9 December 2003 the Mayor of Warsaw, who in the meantime had assumed
the competences of the Board of the City of Warsaw, issued a decision
and refused the application.
- The
parties appealed. On 12 May 2004 the Local Government Board of Appeal
quashed the Mayor's decision of 9 December 2003 and remitted the
case.
- On
28 February 2008 A.G., one of the parties, filed a complaint with the
Self Government Board of Appeal alleging inactivity on the part of
the Mayor of Warsaw.
- On
25 April 2008 the Mayor of Warsaw stayed the proceedings pending the
conclusion of the administrative proceedings concerning the grant of
the right of perpetual use of land to the “Syrena”
company. Four of the parties filed appeals against this
decision. It would appear that the proceedings are still pending.
B. Proceedings conducted before the Warsaw District
Office up to July 2002
- On
5 February 1999 one of the heirs requested the Warsaw District Office
to grant the right of perpetual use of the plot of land owned by the
State Treasury. After two complaints about inactivity, on 30 August
1999 the Warsaw Governor ordered the Warsaw District Office to issue
a decision within one month.
- On
4 January 2000 the Warsaw District Office refused to grant the right
of perpetual use in respect of the plot owned by the State Treasury,
considering that that plot had been designated for public use in the
local development plan.
- On
7 September 2000 the Warsaw Governor upheld the decision of the
Warsaw District Office. S.P. lodged an appeal against the decision of
the Governor with the Supreme Administrative Court.
- On
12 March 2002 the Supreme Administrative Court quashed the Warsaw
Governor's decision of 7 September 2000 and the earlier decision of
the Warsaw District Office.
-
It appears that in July 2002 the ownership of the plot held by the
State was transferred to the City of Warsaw by operation of law.
Consequently, the proceedings concerning the grant of the right of
perpetual use of land in respect of the entire property of the
applicant's family were conducted before the Mayor of Warsaw (see
above).
C. Proceedings concerning the grant of the right of
perpetual use of land for the benefit of the “Syrena”
company
- On
10 May 1996 S.P. filed with the Board of the City of Warsaw
an objection against the auction for the sale of shares in the
“Syrena” company. On 17 September 1996 the applicant
asked the Warsaw Local Government Board of Appeal to set aside the
decision of the Board of the Union of Warsaw Municipalities of
29 June 1993 (see above). On 17 September 1998 the Board of
Appeal revoked its earlier decision and refused to institute
proceedings to set aside.
- Upon
a further appeal, on 19 November 1998 the Supreme Administrative
Court stayed the proceedings pending the termination of the
proceedings concerning the application to set aside the Minister of
Planning and Construction's decision of 24 March 1993. The
proceedings were resumed on 27 September 2002. On 11 December
2002 the Supreme Administrative Court quashed the decision of the
Board of Appeal of 17 September 1998 on procedural
grounds. Consequently, the Board of Appeal had to examine the
applicant's application for annulment again.
- On
20 June and 20 December 2003 the applicant requested the Board of
Appeal to expedite the proceedings.
- On
10 December 2003 the Board of Appeal revoked its earlier decision of
26 November 1997 and declared null and void the decision of the
Board of the Union of Warsaw Municipalities of 29 June 1993.
On 5 July 2004 the Self Government Board of Appeal reopened
the proceedings at the request of the “Syrena” company.
On 9 December 2004 it refused the “Syrena” company's
request for it to revoke its decision of 10 December 2003.
That decision was upheld on appeal on 18 April 2005.
- On
20 May 2005 the “Syrena” company appealed to the Regional
Administrative Court in Warsaw. On 13 April 2006 the Regional Court
quashed the decision of the Self Government Board of Appeal
of 9 December 2004. On 11 July 2007 the Supreme
Administrative Court dismissed a further cassation appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
33 The legal provisions applicable at the material time and questions
of practice are set out in paragraphs 60-65 of the judgment delivered
by the Court on 17 October 2006 in the case of Grabiński
v. Poland (application no. 43702/02).
THE LAW
I. THE GOVERNMENT'S REQUEST TO STRIKE OUT PART OF THE
APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
- On
6 March 2009 the Government submitted a unilateral declaration
similar to that in the case of Tahsin Acar v. Turkey
(preliminary objection) [GC], no. 26307/95, ECHR
2003-VI) and informed the Court that they were prepared to accept
that there had been a violation of the applicant's rights under
Article 6 § 1 of the Convention as a result of the unreasonable
length of the administrative proceedings. In respect of non pecuniary
damage, the Government proposed to award the applicant PLN 15,000,
that is, the equivalent of EUR 3,185. The Government invited the
Court to strike out the application in accordance with Article 37 of
the Convention.
- The
applicant did not agree with the Government's proposal and requested
the Court to examine the case.
- The
Court observes that, as it has already held on many occasions, it may
be appropriate under certain circumstances to strike out an
application or part thereof under Article 37 § 1 (c) of the
Convention on the basis of a unilateral declaration by the respondent
Government even if the applicant wishes the examination of the case
to be continued. It will depend on the particular circumstances
whether the unilateral declaration offers a sufficient basis for
finding that respect for human rights as defined in the Convention
and its Protocols does not require the Court to continue its
examination of the case (see Tahsin Acar, cited above,
§ 75, and Melnic v. Moldova, no. 6923/03, § 22,
14 November 2006).
- According to the Court's
case-law, the amount proposed in a unilateral declaration
may be considered a sufficient basis for striking out an application
or part thereof. The Court will have regard in this connection to the
compatibility of the amount with its own awards in similar cases,
bearing in mind the principles which it has developed for determining
victim status and for assessing the amount of non-pecuniary
compensation to be awarded (see
Cocchiarella v.
Italy [GC], no. 64886/01,
§§ 85-107, ECHR 2006-...; Scordino
v. Italy
(no.1) [GC], no. 36813/97,
§§ 193-215, ECHR-2006-...; Dubjakova
v.
Slovakia (dec.), no. 67299/01,
10 October 2004; and
Arvanitaki-Roboti and Others v.
Greece [GC], no. 27278/03,
§§ 27 32, ECHR 2008-...).
- On the facts and for the reasons set out above, in
particular the low amount of compensation proposed, which is
substantially less than the Court would award in a similar case, the
Court finds that the Government have failed to provide a sufficient
basis for concluding that respect for human rights as defined in the
Convention and its Protocols does not require
it to continue its examination of the length of proceedings complaint
(see, a contrario,
Spółka z o.o.
WAZA
v. Poland
(striking out), no. 11602/02, 26 June 2007).
- This
being so, the Court rejects the Government's request to strike part
of the application out of its list of cases under Article 37 of the
Convention and will accordingly pursue its examination of the
admissibility and merits of the case as a whole.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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
Court notes that the proceedings commenced on 1 October 1992,
when S.P., acting on behalf of the applicant's family, filed an
application for annulment of the administrative decisions refusing
the grant of temporary ownership. 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 has not yet ended. It has thus lasted 15 years and
over 10 months.
A. 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
1. The parties' submissions
- The
Government refrained from expressing their opinion on the merits of
the applicant's case. At the same time, they pleaded the particular
complexity of the case which had involved complicated legal and
factual issues. They further submitted that the applicant had
remained passive and that his relatives – who were co-parties
to the proceedings – had initiated all motions.
- The
applicant argued that the “reasonable time” requirement
laid down in Article 6 § 1 was not complied with. She stressed
that for 16 years, together with her family members, she had been
actively participating in the proceedings relating to her property
rights.
2. The Court's assessment
- 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 Grabiński, 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
and failed to meet the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that she did not have at her disposal an
effective remedy against the decisions of administrative authorities.
52. The
Court has already dealt with this issue in previous cases.
In particular it has held that the expression “effective
remedy” used in Article 13 cannot be interpreted as a
remedy bound to
succeed, but
simply an accessible remedy before an authority competent to examine
the merits of a complaint (see Figiel v. Poland (no. 2),
no. 38206/05, § 33, 16 September 2008).
- The
fact that in the present case the applicant's claim for the grant of
perpetual use of land is still pending does not in itself render the
combination of remedies available in
administrative proceedings incompatible with Article 13
(see Grabiński
v. Poland (dec.)
no. 43702/02, 18 October 2005).
- In
the light of the foregoing, the Court considers that in
the circumstances of the present case it cannot be said that the
applicant's right to an effective remedy under Article 13 of the
Convention has not been respected.
- 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
IV. ALLEGED
VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION.
- The
applicant also complained under Article 1 of Protocol No. 1 to the
Convention that her family had been deprived of the property owned by
them and that the application for the grant of the right of perpetual
use has not been finally determined.
- The
Court observes that the domestic proceedings to determine the
applicant's claim are currently pending before the Mayor of Warsaw.
Therefore, in so far 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. It
follows that the complaint must be rejected for non-exhaustion of
domestic remedies in accordance with Article 35 §§ 1 and 4
of the Convention.
V. 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 15,000 euros (EUR) in respect of non pecuniary
damage.
-
The Government contested the claim.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards award her EUR 10,000
under that head.
B. Costs and expenses.
- The
applicant did not make any claim for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the Government's request to strike
the length of proceedings complaint out of the list;
- Declares the complaint under Article 6 § 1
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 10,000 (ten thousand euros) in respect of
non-pecuniary damage, 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 amount 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 7 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
