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FOURTH
SECTION
CASE OF SERNAWIT AND OTHERS v. POLAND
(Application
no. 61967/00)
JUDGMENT
STRASBOURG
6
November 2007
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 Sernawit v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall, President,
Mr G.
Bonello,
Mr S. Pavlovschi,
Mr L.
Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
Mrs P.
Hirvelä, judges,
and Mrs F. Aracı, Deputy
Section Registrar,
Having
deliberated in private on 9 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 61967/00) 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”)
on 24 November 1999 by Mr Julian Sernawit, Mr Stefan Sernawit and Mr
Tadeusz Sernawit (“the applicants”). They were first
represented before the Court by Mr W. Hermeliński, who was later
replaced by Ms A. Metelska, lawyers practising in Warsaw.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
7 November 2003 the
President of the Fourth Section of the Court decided to give notice
of the application to the Government. Applying Article 29 § 3 of
the Convention, it was decided to rule on the admissibility and
merits of the application at the same time.
- On 18 February 2002 the first applicant's wife,
Mrs Wanda Sernawit, informed the Court's Registry that the
applicant had died on 15 July 2000. On 18 August 2003 the
second applicant's wife, Mrs Helena Sernawit, informed the
Registry that her husband had died. They stated that they wished to
continue the proceedings before the Court in their late husbands'
stead.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Prior to 1 May 1993
- The
applicants' parents owned a plot of land with a house in Warsaw.
Pursuant to the provisions of the 1945 Decree on the Ownership and
Use of Land in Warsaw (Dekret o własności i użytkowaniu
gruntów na obszarze m. st. Warszawy) they were
expropriated and the ownership of the property passed to the Warsaw
municipality.
- On
an unspecified date between 1965 and 1967 the applicants' parents
requested to be granted a right of perpetual use of the expropriated
land. On 30 October 1968 the District Board of the local council
dismissed their request.
- On
an unspecified date in 1975 the applicants' father died. On 18 April
1975 the ownership of the property in question passed from the Warsaw
municipality to the State Treasury.
- By
a letter of 18 November 1977, the Office of the City of Warsaw
consented to the sale of the property to a third party.
- Pursuant
to the order of the District Mayor (Naczelnik Dzielnicy), the
land and the building were put up for sale and, on 19 April 1985,
two thirds of the property was sold to a certain B.K.
- On
an unspecified date in 1987 the applicants requested that the
property be restored to them.
- On
10 October 1987 the applicants obtained a partial restitution of
their property. A right of perpetual use of one-third of the land and
ownership of one third of the building situated on that property
were awarded to them.
- On
5 February 1990 the applicants requested that the remaining
two thirds of the property be restored to them. In their letter
to the District Office (Urząd Dzielnicowy) they
complained that the local authorities, being aware of the applicants'
claims to the property, had deliberately sold the property, taking an
unfair advantage of the fact that the inheritance proceedings
following the applicants' parents' death had not been terminated yet.
- By
a letter of 20 April 1990 the authorities indicated that since
two thirds of the original plot had been sold to third parties
before the entry into force of a certain statute in 1985, only
one-third of the plot could be restored to the applicants. Thus,
restitution of the remaining two thirds of the property was
impossible and, in accordance with the 1985 law, any compensation
claims had expired on the date of entry into force of this law.
- On
7 May 1990 the applicants again requested the District Office to
consider their claims. They challenged the lawfulness of the sale of
the two thirds of the property as the District Office had at
that time been aware of their outstanding claims.
- By
a letter of 15 October 1990 the Town Office, Division of Architecture
and Land Management (Urząd Miasta Stołecznego Warszawy,
Wydział Architektury i Gospodarki Gruntami, reiterated the
position of the District Office.
- The
applicants sent numerous letters of complaint to various authorities,
including the Supreme Administrative Court. Following an inquiry of
that court, the Regional Office in its letter of 16 April 1991
explained that the matter was under consideration and apologised for
the delays in its examination, which were due to a serious backlog of
cases and understaffing.
- The
Supreme Administrative Court regarded the applicants' subsequent
complaints as a complaint about the inactivity of the administrative
authorities and the failure to issue an administrative decision. By a
judgment of 11 October 1991 the court obliged the District Mayor to
issue a decision concerning the remaining two-thirds of the property.
The court found that, when deciding on the return of the one third
of the property, the authorities had failed to determine the
remainder of the applicants' claim. The court ruled that a decision
be given within one month of the date of receipt of the applicants'
case file.
- On
20 March 1992 the District Mayor rendered a decision refusing to
restore the two thirds of the property to the applicants. The
Mayor noted that by the decision of 15 October 1987 the applicants'
motion had been allowed in respect of one-third of the property and
that no decision had been issued in respect of the remaining
two thirds. Therefore, in view of the fact that the remaining
two-thirds had been sold to third parties, the applicants' motion had
to be dismissed. The applicants appealed.
- On
30 June 1992 the City Mayor (Prezydent Miasta) dismissed their
appeal. The applicant further appealed to the Supreme Administrative
Court.
- On
20 May 1993 the Supreme Administrative Court declared null and void
the decision of 30 June 1992 and the preceding decision of the first
instance. It found that the first-instance decision had not been duly
signed and had therefore to be declared null and void ex officio.
The matter was remitted to the District Mayor for re examination.
2.
Facts after 1 May 1993
- On
16 September 1993 a new decision refusing to restore the two thirds
of the property to the applicants was issued. The applicants
appealed. On 17 June 1994 the City Mayor quashed that decision
finding that the District Mayor should have been excluded from
examining the issue as the District Office had been a party to the
sale of that part of the property to third parties which was the
subject matter of the case.
- Between
1994 and 1996 the matter remained dormant. Following numerous
interventions by the applicants and their complaints about the
inactivity of the administration, the District Prosecutor intervened
and filed a complaint with the Board of Appeal of the Local
Government (Samorządowe Kolegium Odwoławcze). On 13
November 1996 the Board of Appeal found that this complaint was
substantiated and it obliged the District Office to give a decision
in the applicants' case before 15 December 1996.
- In
the meantime, on 23 October 1996 the District Office rendered a
decision on the merits of the case. With reference to the previous
decision finding that the District Office had not been competent to
examine matters relating to transactions to which the given Office
had been a party, the District Office found that as the relevant
provision had meanwhile been amended there were no obstacles for that
Office to issue a decision. The applicants' motion in respect of the
restitution of the remaining two thirds of the property was
dismissed. The applicants appealed.
- On
21 January 1997 the Board of Appeal of the Warsaw Local Government
upheld the decision. The applicants filed an appeal with the Supreme
Administrative Court. On 12 March 1999 the court dismissed their
appeal and held that the two thirds of the property could not be
restored to them as third parties had been vested with the right of
perpetual use in respect of this part of the property. On 7 June
1999 the applicants were served with this judgment.
B. Relevant domestic law
1. Decree on the Ownership and Use of Land in Warsaw
- The
Decree on the Ownership and Use of Land in Warsaw of 26 October 1945
expropriated owners of real property located in Warsaw and
transferred the ownership of land to the municipality of Warsaw. The
1945 Decree provided, in so far as relevant:
“Section 7. (1) The owner of a plot of land ...
can within six months after the taking of possession of the land by
the municipality file a request to be granted ... the right to a
perpetual lease (wieczysta dzierżawa) with a peppercorn
rent (czynsz symboliczny). ...
(2) The municipality shall grant the request if the use
of the land by the former owner is compatible with its function set
forth in the development plan (plan zabudowania). ...
(4) In case the request is refused, the municipality
shall offer the person entitled, as long as it has spare land in its
possession, a perpetual lease of land of equal value, on the same
conditions, or the right to construct on such land.
- Pursuant
to Article 33 § 2 of the Act on Local State
Administration of 20 March 1950, the ownership of land
located in Warsaw was assigned to the State Treasury. According to
section 5 § 1 of the Law of 10 May 1990 the
ownership of the land which had previously been held by the State
Treasury and which was within the administrative territory of
municipalities, was transferred to the latter.
2. Right of perpetual use
- Under
Article XXXIX of the Decree of 11 October 1946 introducing the
Property Law (prawo rzeczowe) and the Law on Land and Mortgage
Registers, the right to construct and the right to a perpetual lease
could be transferred into temporary ownership (własność
czasowa). Section 40 of the Law of 14 July 1961 on
Administration of Land in Towns and Estates (Ustawa o gospodarce
terenami w miastach i osiedlach) replaced temporary ownership
with perpetual use (użytkowanie wieczyste).
- The
right of perpetual use is defined in Articles 232 et seq. of
the Civil Code (Kodeks Cywilny). It is an inheritable and
transferable right in rem which, for ninety nine years,
gives a person full benefit and enjoyment of property rights
attaching to land owned by the State Treasury or municipality. It has
to be registered in the court land register in the same way as
ownership.
3. Inactivity of the administrative authorities
- Under
Article 35 of the Code of Administrative Procedure (“the Code”)
of 1960 an administrative authority should give a decision on the
merits of a case within two months. If this time-limit has not been
complied with, the authority must, under Article 36 of the Code,
inform the parties of that fact, explain the reasons for the delay
and fix a new time limit.
- A
party to administrative proceedings may make a complaint under
Article 37 of the Code in order to urge the relevant
administrative authority to issue a decision within the time-limits
fixed in the Code. Moreover, in cases where an authority persistently
failed to do so, a party could lodge, under sections 17, 26 and 30 of
the Supreme Administrative Court Act 1995 as in force at the material
time, a complaint with the Supreme Administrative Court against the
authority's failure to give a decision.
- In
cases where allegations of inactivity were well founded, the
Supreme Administrative Court could oblige that authority to issue a
decision. Pursuant to section 30 of the Act, the decision of the
Supreme Administrative Court ordering an authority to put an end to
its inactivity was legally binding on the authority concerned. If the
authority did not comply with the decision, the court could, under
section 31 of the 1995 Act, impose a fine on it. It also could itself
give a ruling on the merits of the administrative case.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants 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 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. However, 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 ended on 7 June 1999. It thus lasted six years and
one month for three levels of jurisdiction.
A. Applicability of Article 6 § 1
- The
applicability of Article 6 § 1 to proceedings
concerning claims arising against the background of the Decree on the
Ownership and Use of Land in Warsaw of 26 October 1945 has
already been determined by the Court (Potocka and Others v. Poland
(dec.), no. 33776/96, 6 April 2000).
B. Admissibility
- The
Government first argued that the application had been introduced
outside the six-month period imposed by Article 35 § 1
of the Convention because the applicants had submitted their
application form to the Court on 7 January 2000 whereas the
proceedings had ended on 7 June 1999.
- The
applicants submitted that the date of their first letter to the Court
was decisive for the assessment of whether they had complied with the
six month requirement.
- The
Court reiterates that where, as in the instant case, an applicant is
entitled to be served ex officio with a written copy of the
final domestic decision the object and purpose of Article 35 § 1
of the Convention are best served by counting the six-month period as
running from the date of service of the written judgment (Worm
v. Austria, judgment of 29 August 1997, Reports of
Judgments and Decisions 1997 V, p. 1547, § 33).
The date of the introduction of an application is the date of the
first letter indicating an intention to lodge an application and
giving some indication of the nature of the application (see, among
many other authorities, Chalkley v. the United Kingdom (dec),
no. 63831/00, 26 September 2002). In the present case the
applicants submitted their first letter to the Court on 24 November
1999, after the final decision in their case had been served on them
by the court on 13 September 1999.
It
follows that the application cannot be declared inadmissible for
failure to comply with the six-month requirement within the meaning
of Article 35 § 1 of the Convention.
- The
Government further submitted that the applicants had failed to
exhaust relevant domestic remedies because after 1 May 1993, the date
on which Poland's declaration recognising the competence of the
Convention organs to examine individual applications became
effective, they had failed to lodge with the Supreme Administrative
Court a complaint under section 17 of the Supreme Administrative
Court Act (see paragraphs 30 31 above). The applicants disagreed
and submitted that they had had recourse to this remedy prior to
1 May 1993, but that in their case it proved ineffective, since
after that date the proceedings had in any event lasted a further six
years.
- The Court reiterates that, whereas Article 35 § 1
of the Convention must be applied with some degree of flexibility and
without excessive formalism, it does not require merely that
applications should be made to the appropriate domestic courts and
that use should be made of remedies designed to challenge decisions
already given. It normally requires also that the complaints intended
to be brought subsequently before the Court should have been made to
those same courts, at least in substance and in compliance with the
formal requirements and time-limits laid down in domestic law (see,
inter alia, Cardot v. France, judgment of
19 March 1991, Series A no. 200, p. 18, § 34;
Elçi and others v. Turkey, nos. 23145/93 and
25091/94, § 604, 13 November 2003). The Court notes
that it has held that the complaint under section 17 of the Supreme
Administrative Court Act was an effective remedy in cases in which an
applicant complains about the excessive length of administrative
proceedings (see, Zynger v. Poland (dec.), no. 66096/01,
7 May 2002 and Bukowski v. Poland (dec.),
no. 38665/97, 11 June 2001). It observes that the
applicants did not use this remedy after 1 May 1993. However,
the Court reiterates that nonexhaustion of domestic remedies
cannot be held against an applicant if, in spite of the latter's
failure to observe the formal requirements prescribed by law, the
competent authority has nevertheless examined the substance of the
remedy (see, among other authorities, Skalka v. Poland
(dec.), no. 43425/98, 3 October 2002; Uhl v. Germany
(dec.), no. 64387/01, 6 May 2004).
- In
this connection, the Court observes that in June 1995 the applicants
complained to the District Prosecutor about the inactivity of the
authorities. Subsequently, following the prosecutor's intervention
(see paragraph 22 above), the Board of Appeal found, in its decision
of 13 November 1996, that the applicant's complaint about the
lack of progress in the proceedings was well founded. Hence, the
authorities dealt with the substance of the applicants' length
complaint.
- Therefore,
the Court considers that the applicants have exhausted domestic
remedies as required by Article 35 § 1 of the
Convention.
- Finally,
the Government submitted that the application should be declared
incompatible ratione
personae
with the Convention. The Government were of the opinion that the
widows of the late applicants could not claim to be either parties to
the proceedings before the Court or direct or even indirect victims
of any violation of the Convention.
- The
first and second applicants' widows argued that their pecuniary
interests were at stake and that they wished therefore to pursue the
application lodged by their late husbands.
- The
Court reiterates that when an applicant dies during the Convention
proceedings, her or his next-of-kin has a legitimate interest to
justify the continuation of the examination of the case (see, for
example, mutatis mutandis, Lukanov v. Bulgaria,
judgment of 20 March 1997, Reports of Judgments and Decisions
1997 II, p. 540, § 35; Sildedzis v. Poland,
no. 45214/99, 24 May 2005, § 30).
The
Court thus accepts that the widows of the first and second applicants
have a legitimate moral interest to pursue the application on their
late husbands' behalf. Accordingly, they have standing to continue
the proceedings before the Court in those applicants' stead.
- It
follows that the Government's preliminary objections must be
dismissed. 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.
C. Merits
- The
Government argued that the case had been complex both as to the facts
and the law; that what had been at stake for the applicants was of a
purely pecuniary character; and that the authorities had shown
appropriate diligence when dealing with the case.
- The
applicants disagreed.
- 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.
The Court further notes that
between 1994 and 1996 there was a period of total inactivity in the
proceedings. The complaint about the inactivity of the authorities
during that period was declared well founded by the Board of Appeal
(see § 22 above). It observes that subsequently two
years elapsed between the date of lodging the applicant's appeal to
the Supreme Administrative Court and the date of delivery of the
judgment given by that court (see § 24
above).
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.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
TO THE CONVENTION
A. Admissibility and merits
- The
applicants also alleged that the length of the proceedings complained
of had infringed their right to the peaceful enjoyment of their
possessions, as guaranteed by Article 1 of Protocol No. 1. That
Article reads as follows:
“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 has already found that there has been a violation of Article 6
§ 1 on account of the excessive length of the proceedings
concerned. For that reason, while finding this complaint to be
admissible, having regard to its reasoning under Article 6 § 1,
the Court considers that it is not necessary to examine the complaint
under Article 1 of Protocol No. 1 separately (see Zanghì
v. Italy, judgment of 19 February 1991, Series
A no. 194-C, p. 47, § 23).
III. 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 1,775,000 zlotys (PLN) in respect of pecuniary
damage. In addition, they claimed 50,000 zlotys (PLN) in respect of
non pecuniary damage.
-
The Government contested these claims.
- 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, it awards the applicants jointly EUR 1,000 in
respect of non pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 2,500 for the costs and expenses
incurred before the Court.
-
The Government contested the claim.
- According
to the Court's case law, an applicant is entitled to
reimbursement of his 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
considers it reasonable to award the applicants jointly the sum of
EUR 500 for costs and expenses, together with any value added
tax that may be chargeable.
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;
3. Holds that it is not necessary to examine separately the
applicants' complaint under Article 1 of Protocol No. 1 to the
Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 1,000 (one thousand euros) in respect of non pecuniary
damage and EUR 500 (five hundred euros) in respect of costs and
expenses, to be converted into Polish zlotys at the rate applicable
at the date of settlement, plus any tax that may be chargeable;
(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 6 November 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Josep Casadevall
Deputy
Registrar President
