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FOURTH
SECTION
CASE OF ZJEDNOCZONE BROWARY WARSZAWSKIE HABERBUSCH I SCHIELE S.A.
v. POLAND
(Application
no. 35965/03)
JUDGMENT
STRASBOURG
14
December 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Zjednoczone
Browary Warszawskie Haberbusch i Schiele S.A. v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Ján Šikuta,
President,
Lech Garlicki,
Vincent Anthony de
Gaetano, judges,
and Fatoş
Aracı, Deputy
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. 35965/03) 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 joint-stock company
Zjednoczone Browary Warszawskie
Haberbusch i Schiele S.A. (“the applicant”), on
30 October 2003.
- The
applicant was represented by Ms N. Ołowska-Zalewska, a lawyer
practising in Warszawa.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
12 January 2010 the
Court decided to give notice of the application to the Government. In
accordance with Protocol No. 14, the application was assigned to a
Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant is a join-stock company with its registered seat in
Warszawa.
A. The expropriation decision of 1948
- By
way of an administrative decision of 29 November 1948 a property
owned by the applicant and located in Warsaw was expropriated
pursuant to provisions of the 1946 Law on transfer to the State of
the ownership of the main branches of the national economy (Ustawa
z 3 stycznia 1946 r. o przejęciu na wlasność
Państwa podstawowych gałęzi gospodarki narodowej).
B. Administrative proceedings
- On
12 June 1991 the applicant lodged with the Ministry of Industry and
Agriculture an application to have the expropriation decision
declared null and void. The proceedings were subsequently conducted
before the Minister of Finance.
- On
30 October 2000 the Minister of Finance gave a decision and refused
to declare the expropriation decision null and void.
- On
17 November 2000 the applicant's lawyer requested the Minister of
Finance to re-examine the case.
- On
9 January 2001 the Minister of Finance upheld his own decision of
30 October 2000.
- On
12 February 2001 the applicant lodged a complaint with the Supreme
Administrative Court.
- On
18 November 2002 the Supreme Administrative Court quashed both
decisions of the Minister of Finance.
- On
27 March 2003 the Minister of Finance gave a decision and stayed the
proceedings finding that the examination of the case was dependent on
the establishment of the components of the applicant's enterprise
(ustalenie składników przedsiębiorstwa
skarżącego), which fell within the competence of the
Minister of Agriculture. On the same day the Minister of Finance
requested the Minister of Agriculture to resolve the preliminary
issue (zagadnienie wstępne) referred to above. Since
then, the proceedings have been pending before the Minister of
Finance.
- On
an unspecified date the applicant appealed against the decision to
stay the proceedings.
- On
30 April 2003 the Minister of Finance upheld the challenged decision.
Since that date the proceedings have been stayed before the Minister
of Finance.
C. Proceedings before the Minister of Agriculture
- On
2 February 2005 the Minister of Agriculture gave a decision and
stayed the proceedings.
- The
applicant requested a re-examination of the case.
- On
18 April 2007 the Minister of Agriculture upheld his decision.
- The
applicant lodged a complaint with the Regional Administrative Court.
- On 25 September 2007 the Warsaw Regional
Administrative Court found the complaint well-founded and quashed
both decisions of the Minister of Agriculture.
- Subsequently, on 20 March 2008 the Minister of
Agriculture gave a decision and discontinued the proceedings.
- The
applicant again requested a re-examination of the case.
- On
5 February 2009 the Minister of Agriculture upheld his decision.
- The
applicant lodged a complaint with the Regional Administrative Court.
- On
17 July 2009 the Warsaw Regional Administrative Court quashed both
decisions of the Minister of Agriculture.
- The
proceedings are pending before the Minister of Agriculture.
D. The applicant's complaints about the excessive
length of the proceedings
- On
an unspecified date in 2004 the applicant lodged a complaint about
the inactivity on the part of the Minister of Agriculture.
- On
19 October 2004 the Warsaw Regional Administrative Court found the
complaint well-founded and ordered that the Minister of Agriculture
give a decision on the preliminary issue within one month of the
court's judgment.
- The
Minister failed to comply with the court's order and therefore, on
3 August 2005, the applicant requested the Warsaw Regional
Administrative Court to impose a fine on him.
- On
9 March 2006 the Warsaw Regional Administrative Court dismissed the
complaint finding that on 4 February 2005 the Minister had given a
decision and stayed the relevant proceedings. Therefore, although he
did not give a decision on the merits, it could not be said that the
Minister was completely inactive.
- The
applicant lodged a cassation appeal with the Supreme Administrative
Court, which was dismissed on 14 November 2006.
- Subsequently,
on 20 March 2007, the applicant again complained to the Warsaw
Regional Administrative Court about the inactivity on the part of the
Minister of Agriculture.
- On
13 July 2007 the Warsaw Regional Administrative Court discontinued
the proceedings as being pointless finding that, on 18 April 2007,
the Minister of Agriculture had given a decision and upheld his own
decision to stay the proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law on remedies for inaction on the part of the
administrative authorities 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. THE GOVERNMENT'S REQUEST FOR THE APPLICATION TO BE
STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION
- On
17 May 2010 the Government submitted a unilateral declaration similar
to that in the case of Tahsin Acar v. Turkey (Tahsin Acar
v. Turkey (preliminary objection) [GC], no. 26307/95,
ECHR 2003 VI), and informed the Court that they were ready to
accept that there had been a violation of the applicant's right
under Article 6 § 1 of the Convention as a result of the
unreasonable length of the administrative proceedings in which the
applicant is involved. In respect of non-pecuniary damage, the
Government proposed to award PLN 20,000 to the applicant. 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. The
applicant's lawyer submitted that the amount proposed did not
constitute sufficient just satisfaction for the damage the applicant
had sustained and requested the Court to continue the
examination of the application.
- 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 length of proceedings 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 where it has found a breach of the “reasonable
time” requirement (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 -...; and Dubjakova v. Slovakia
(dec.), no. 67299/01, 10 October 2004).
- As
to whether it would be appropriate to strike out the present
application on the basis of the unilateral declaration made by the
Government, the Court considers that the sum proposed in the
declaration in respect of the non-pecuniary damage suffered by the
applicant as a result of the alleged violation of the
Convention does not bear a reasonable relationship to the amounts
awarded by the Court in similar cases in respect of
non pecuniary damage. Furthermore, the domestic proceedings are
still pending (see paragraph 26 above).
- On
the facts, and for the reasons set out above, the Court finds that
the Government failed to submit a statement offering 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, by contrast, 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 for the
application to be struck out under Article 37 of the Convention and
will accordingly pursue its examination of the admissibility and
merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE
ADMINISTRATIVE PROCEEDINGS
- The
applicant complained that the length of the proceedings was
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, having submitted a unilateral declaration, did not
produce observations on that matter.
- The
proceedings were instituted on 12 June 1991 and are still pending.
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 over seventeen years at three instances.
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
- 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 the proceedings is
excessive and fails 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 also raised a complaint under Article 13 of the Convention
claiming that the request for declaring a decision null and void had
proven to be an ineffective remedy. Article 13 of the Convention
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 reiterates that Article 13 of the Convention guarantees an
effective remedy before a national authority as regards an alleged
breach of rights and freedoms set forth in the Convention. However,
the “effectiveness” of a “remedy” within the
meaning of that provision does not depend on the certainty of a
favourable outcome for the applicant (see Kudła v.
Poland [GC], no. 30210/96, §§ 154 et seq., ECHR
2000-XI, §§ 156-157).
- The
fact that in the present case the applicants' claim for
re examination of the case did not bring an effect desired by
the applicant and the challenged decision was upheld does not in
itself render the remedy referred to incompatible with Article 13 of
the Convention.
- As
stated above, the expression “effective remedy” used in
Article 13 of the Convention 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, mutatis
mutandis, Šidlová v. Slovakia,
no. 50224/99, § 77, 26 September 2006).
- In
the light of the foregoing, the Court considers that in the
circumstances of the present case it cannot be said that the
applicants' 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. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 § 1 of the
Convention that the decisions of the Minister of Finance and the
judgment of the Supreme Administrative Court had been based on
improperly established facts and were unjust. It further complained
under Article 1 of Protocol No. 1 about a violation of its
rights to peaceful enjoyment of possessions.
- The
Court notes that the relevant proceedings are still pending. It
follows that the complaints under Article 6 § 1 of the
Convention and under Article 1 of Protocol No. 1 to the Convention,
as premature, must be declared inadmissible under Article 35 § 1
and 4 of the Convention for non -exhaustion of domestic
remedies.
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 70,939 Polish Zlotys (PLN) in
respect of pecuniary and PLN 200,000 in respect of non-pecuniary
damage. As regards the pecuniary damage the applicant produced copies
of all judgments given in several sets of domestic proceedings which
it had instituted in their attempts to have the property in question
returned. All the claims lodged by the applicant were dismissed and
the applicant had to bear costs of the proceedings. The pecuniary
damage sought consists of the costs of the above-mentioned
proceedings.
- The
Government did not express an opinion on the matter.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
The Court notes that in the present judgment it has found a violation
of Article 6 § 1 of the Convention only in
respect of the excessive length of proceedings. Therefore, the costs
bore before the domestic courts concerning the protection of property
cannot be granted. On the other hand, the Court considers that the
applicant must have sustained non-pecuniary damage. Ruling on an
equitable basis, it awards the applicant EUR 14,000 under that
head.
B. Costs and expenses
- The
applicant's lawyer also claimed PLN 8,325 for the costs and expenses
incurred before the domestic courts and those incurred before the
Court. She produced copies of invoices issued by other lawyers who
had apparently represented the applicant in the domestic proceedings.
She also produced a copy of an invoice issued by herself for the
amount of PLN 1,800 for the legal representation before the
Court.
- The
Government did not express an opinion on the matter.
- Regard
being had to the documents in its possession and to its case law,
the Court rejects the claim for costs and expenses in the domestic
proceedings and considers it reasonable to award the sum of EUR 450
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
- Rejects the Government's request to strike the
application out of the list;
- Declares the complaint concerning the excessive
length of the proceedings 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, the following amounts to be converted into the
currency of the respondent State at the rate applicable at the date
of settlement, plus any tax that may be chargeable to the applicant:
(i) EUR
14,000 (fourteen thousand euros) in respect of non pecuniary
damage;
(ii) EUR
450 (four hundred and fifty euros) 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 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.
Fatoş Aracı Ján Šikuta
Deputy
Registrar President
