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FOURTH
SECTION
CASE OF LORENC v. POLAND
(Application
no. 28604/03)
JUDGMENT
STRASBOURG
15
September 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 Lorenc 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,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 25 August 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 28604/03) 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 Anna Lorenc
(“the applicant”), on 21 August 2003.
- The
applicant was represented by Mr M. Wątrobiński, a lawyer
practising in Wloszczowa. 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 was 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 1946 and lives in Jarocin.
A. Background of the case
- The
applicant's relative – a certain W.W. – owned the Jarocin
Furniture Factory, registered under numbers: no. 87/1 and 87/2 with
a surface area of 4,955 square metres. By
an administrative decision of 11 January 1955 of the
Board of the Poznań National Council (Prezydium
Rady Narodowej) the factory and the adjacent land were
expropriated.
The
applicant is one of the heirs of the owner of that property.
B. Administrative proceedings for restitution of the
property
- On 12 April 2001 the applicant together with other
members of her family lodged a request with the Mayor of the Jarocin
District (Starosta) for restitution of the property.
- On
22 June 2001 the applicant lodged a complaint about the inactivity of
the Mayor of the Jarocin District with the District Council (Rada
Powiatu). The complaint was referred to the Wielkopolski Governor
(Wojewoda) as the competent administrative authority.
- On
5 July 2001 the Mayor of the Jarocin District discontinued the
proceedings. The applicant appealed.
- On
6 September 2001 the Wielkopolski Governor informed the applicant
that her complaint about the inactivity of the Mayor of the Jarocin
District had been left without consideration since on 5 July 2001
the Mayor had issued a decision.
- On
10 September 2001 the Wielkopolski Governor quashed the decision of
the Mayor of the Jarocin District and remitted the case.
- On
22 October 2001 the Mayor of the Jarocin District stayed the
proceedings due to the applicant's failure to produce all necessary
decisions confirming that she had acquired the property as the heir
of the deceased owner.
12. On
18 March 2002 the applicant asked for the resumption of the
proceedings, to no avail.
13. On
10 October 2002 the applicant lodged a complaint about the inactivity
of the Mayor of the Jarocin District with the District Council (Rada
Powiatu).
On 27 December 2002 her complaint was referred to the
Wielkopolski Governor.
- On
3 June 2003 the Wielkopolski Governor dismissed the complaint about
the inactivity of the Mayor of the Jarocin District. It held that
even if the applicant had submitted all of the necessary
testamentary evidence, the proceedings would not have been resumed
until the conclusion of the administrative proceedings concerning the
applicant's request for a declaration that the expropriation
decision was null and void (see below).
- The
proceedings are still stayed.
C. Administrative proceedings to declare the
expropriation decision null and void
- On
6 August 2001 the applicant lodged an application with the Office
for Housing and Town Development (Urząd
Mieszkalnictwa i Rozwoju
Miast) for a declaration that
the expropriation decision of 11 January 1955 was null
and void.
- By
a decision of 9 May 2002 the President of the Office
for Housing and Town Development (Prezes
Urzędu Mieszkalnictwa
i Rozwoju Miast) refused to
institute the administrative proceedings, since the applicant had
failed to produce the relevant documents in support of her claim. The
applicant made an application for reconsideration of the matter.
- On
30 July 2002 the President of the Office for
Housing and Town Development quashed his decision of 9 May
2002.
- On
30 May 2003 the President of the Office for
Housing and Town Development decided to stay the proceedings,
following the death of one of the parties to the proceedings.
- By
a decision of 9 February 2004 the Minister of Infrastructure
(Minister Infrastruktury)
resumed the proceedings and asked the Jarocin District Court (Sąd
Rejonowy) and Ostrów District
Court to provide the relevant documents concerning the property at
issue.
- By
a letter of 26 April 2004 the applicant was informed by the Cabinet
Office that the Minister of Infrastructure had been asked
to accelerate the proceedings and to inform the authorities
about the reasons for his delay.
- On
12 May 2004 the applicant was informed that the Minister
of Infrastructure had asked several administrative authorities
to provide the documents from the archives concerning the status of
the property at issue.
- On
29 July 2005 the Ministry of Infrastructure apologised for the delay
and stated that it would not be possible to conclude the proceedings
within the time-limit specified in Article 35 of the Code of
Administrative Procedure due to the need to undertake further
examination of the application. Moreover, the Ministry indicated
that, immediately after the determination of all the parties to the
proceedings, the hearing would take place.
- On
16 April 2006 the applicant lodged a complaint about the inactivity
of the Minister of Infrastructure with the Prime Minister.
- On
19 April 2006 the applicant requested the
Ministry of Transport and Construction (Ministerstwo
Transportu i Budownictwa) to
accelerate the proceedings and to schedule an administrative hearing
in the case.
- On
26 April 2006 the Ministry of Transport and
Construction apologised for the delay and informed the
applicant that it would not be possible to conclude the
proceedings within the time-limit specified in Article 35
of the Code of Administrative Procedure due to
its heavy workload and the complex nature of the case. The Ministry
informed the applicant that the decision would be issued by 30
November 2006.
- On
7 August 2006 the applicant lodged a complaint about the inactivity
of the Minister of Transport and Construction with the Prime
Minister.
- On
30 October and 1 December 2006 the Minister of Construction (Minister
Budownictwa) informed the Cabinet
Office about the reasons for the delay in the proceedings. He
stressed that the case was particularly complex and he referred to
the need to continue the process of gathering evidence.
- On
18 December 2006 the Ministry of Construction informed the
applicant that it would not be possible to conclude the proceedings
within the time-limit specified in Article 35 of the Code of
Administrative Procedure due to the need to establish the current
address of one of the parties to the proceedings. The applicant was
further informed that the decision would be
issued by 31 March 2007.
- By
a decision of 28 April 2008 the Minister of Infrastructure refused to
declare the expropriation decision null and void.
- On
23 May 2008 the applicant lodged an application for reconsideration
of the matter.
- On
22 July 2008 the applicant was informed by the Minister
of Infrastructure that it would not be possible to conclude the
proceedings within the time-limit specified in Article 35 of the Code
of Administrative Procedure and that the
decision would be issued by 31 December 2008.
- The
proceedings are still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The relevant domestic law concerning the remedies for
the inactivity of the administrative authorities at the material time
is set out in the Court's judgment in the case of Grabiński
v. Poland, no. 43702/02, §§ 60-65, 17 October
2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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.
- In
relation to the proceedings for restitution of the property, the
period to be taken into consideration began on 12 April 2001
and has not yet ended. It has thus lasted over 8 years and 1 month,
for two levels of jurisdiction.
- As
regards the proceedings to declare the expropriation decision null
and void, the period to be taken into consideration began on
6 August 2001 and has not yet ended. It has thus lasted
some 7 years and 9 months for two levels of jurisdiction.
A. Admissibility
- The
Government submitted that the applicant had not exhausted remedies
available under Polish law. They maintained that she had not lodged a
complaint about inactivity on the part of the authority obliged
to issue a decision with the Supreme Administrative Court.
- The
applicant contested the Government's arguments.
- The
Court reiterates that the rule of exhaustion of domestic
remedies referred to in Article 35 of the Convention obliges
those seeking to bring their case against the State before an
international judicial or arbitral organ to use first the remedies
provided by the national legal system, thus dispensing States from
answering before an international body for their acts before they
have had an opportunity to put matters right through their own legal
systems. In order to comply with the rule, normal recourse should be
had by an applicant to remedies which are available and sufficient to
afford redress in respect of the breaches alleged (see the Aksoy
v. Turkey judgment of 18 December 1996, Reports of Judgments
and Decisions 1996-VI, pp. 2275–76, §§ 51–52).
- The
Court notes that the applicant several times lodged complaints about
inactivity on the part of the
administrative authorities responsible for giving a decision
(see paragraphs 7, 13, 24 and 27 above). The competent supervisory
bodies often found the complaints well-founded, ordered that the
proceedings be accelerated and apologised for the delay (see
paragraphs 26 and 28 above). The remedy the applicant used was
therefore adequate and sufficient to afford her redress in respect of
the alleged breach. In consequence, the Court does not consider
that the applicant should have lodged a further complaint about
inactivity with the Supreme Administrative Court in order to fulfil
her obligation under Article 35 § 1.
- The Court also reiterates that, although Article 35 §
1 requires that the complaints intended to be brought subsequently
before the Court should have been made to the appropriate domestic
body, it does not require that, in cases where the national law
provides for several parallel remedies in various branches of law,
the person concerned, after an attempt to obtain redress through one
such remedy, must necessarily try all other means (see, mutatis
mutandis, H.D. v. Poland (dec.), no. 33310/96,
7 June 2001; Kaniewski v. Poland, no.
38049/02, §§ 32-39, 8 November 2005).
- Accordingly,
the Court concludes that, for the purposes of Article 35 § 1
of the Convention, the applicant has exhausted domestic remedies.
For
these reasons, the Government's plea of inadmissibility on the ground
of non-exhaustion of domestic remedies must be dismissed.
- The Court further notes that this complaint is not
manifestly ill founded within the meaning of Article 35 § 3
of the Convention. It also notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
- The
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).
- 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 both sets of
proceedings was excessive and failed to meet the “reasonable
time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. 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 did not express an opinion on the matter.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards her EUR 5,000
under that head.
B. Costs and expenses
- The
applicant also claimed a lump sum of EUR 6,000 for the costs and
expenses incurred before the domestic courts and for those incurred
before the Court.
- The
Government did not express an opinion on the matter.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 800 for 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of both sets of proceedings;
- 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 5,000 (five
thousand euros) in respect of non-pecuniary damage and EUR 800
(eight hundred euros) in respect of costs and expenses, plus any tax
that may be chargeable, to be converted into Polish zlotys at
the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 15 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza Deputy Registrar President
