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FOURTH
SECTION
CASE OF PABJAN v. POLAND
(Application
no. 24706/05)
JUDGMENT
STRASBOURG
2
June 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 Pabjan v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Giovanni Bonello,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić, judges,
and
Fatoş Aracı,
Deputy Section Registrar
Having
deliberated in private on 12 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 24706/05) 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, Mr Józef
Pabjan (“the applicant”), on 5 July 2005.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
19 October 2007 the
President of the Chamber 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 1928 and lives in Tarnów.
- On
9 August 1968 the Hrubieszów District National Council
took over the applicant’s farm, regarding it as abandoned
property. On 16 January 1969 the Lublin Regional National
Council upheld that decision.
- On
12 December 1994 the applicant requested the Minister of
Agriculture to declare the latter decision null and void.
- On
29 August 1997 the Minister of Agriculture and Food Economics
dismissed the applicant’s request. The applicant appealed. On
9 January 1998 the Minister upheld his former decision.
- On
8 September 1999 the Supreme Administrative Court quashed both
decisions of the Minister of Agriculture and Food Economics and
remitted the case for re-examination.
- On
4 April 2000 the applicant lodged a complaint with the Supreme
Administrative Court requesting that a fine be imposed on the
Minister for failure to enforce the decision of the Supreme
Administrative Court of 8 September 1999. He also complained
about the overall length of the proceedings. On 9 May 2001 the
Supreme Administrative Court discontinued these proceedings since the
applicant had withdrawn his complaints as the Minister had in the
meantime issued the decision in question (see paragraph 12 below).
- The
Minister began to examine the case in June 2000. On 16 June
2000 he stayed the proceedings until certain documents concerning
ownership of the applicant’s farm were submitted by the Lublin
Governor’s Office. The requested documents were submitted to
the Minister on 23 November 2000.
- On
14 March 2001 the applicant lodged another complaint with the
Minister of Agriculture and Food Economics alleging inactivity on his
part.
- On
26 April 2001 the Minister again dismissed the applicant’s
request to declare the decision null and void. On 8 May 2001 the
applicant appealed, requesting a re-examination of his case.
- On
21 November 2001 the applicant again lodged a complaint with the
Supreme Administrative Court alleging inactivity on the part of the
Minister. The proceedings were discontinued on 14 March 2002
since the applicant had withdrawn his complaint as the Minister had
issued the decision in question (see paragraph 14 below).
- On
8 February 2002 the Minister of Agriculture and Food Economics
upheld his decision of 2001.
- On
21 January 2003 the Supreme Administrative Court quashed the
Minister’s decisions given in 2001 and 2002.
- On
27 January 2004 the Minister dismissed the applicant’s
request of 1994 for the third time. On 9 February 2004 the
applicant lodged an appeal against that decision.
- The
proceedings are currently 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 ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE
ADMINISTRATIVE PROCEEDINGS
- 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
period to be taken into consideration began on 12 December 1994
and it has not yet ended. It thus has lasted over 14 years and 3
months at three instances.
A. Admissibility
- The
Government raised a preliminary objection that the applicant had not
exhausted all domestic remedies available to him under Polish law, as
required by Article 35 § 1 of the Convention.
-
Firstly, they submitted that the applicant only once had lodged a
complaint about the inactivity of the administrative authorities
under Article 17 of the Act on the Supreme Administrative Court
(“1995 Act”), and subsequently, he had withdrawn his
complaint after the delivery of the decision in question which
resulted in the discontinuance of the proceedings.
-
Secondly, the Government admitted that the applicant had lodged the
complaints twice; for the first time, when requesting that a fine be
imposed on the Minister for his failure to execute the decision of
the Supreme Administrative Court of 8 September 1999, and, for the
second time, when complaining about the inactivity of the Minister of
Agriculture. However, each time he had waived his complaints as
decisions on the merits had been issued after his complaints had been
submitted. Hence, the Supreme Administrative Court had never had the
opportunity to examine the substance of the applicant’s
complaint.
25
Finally, the Government submitted that the applicant could have
lodged another complaint about inactivity with the administrative
court.
26. The Court reiterates that, whereas Article 35 § 1
of the Convention must be applied with some degree of flexibility and
without excessive formalism, it normally requires that the complaints
intended to be brought subsequently before the Court should have been
made to the appropriate domestic courts, at least in substance and in
compliance with the formal requirements and time-limits laid down in
the domestic law (see, among other authorities, Cardot v. France,
judgment of 19 March 1991, Series A no. 200, p. 18,
§ 34). However, non-exhaustion of domestic remedies cannot
be held against the applicant if, in spite of the latter’s
failure to observe the forms prescribed by law, the competent
authority has nevertheless examined the substance of the complaint
(see, among other authorities, Skałka v. Poland
(dec.), no. 43425/98, 3 October 2002; and Uhl v. Germany
(dec.), no. 64387/01, 6 May 2004).
- 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).
- The
Court notes that the applicant withdrew his complaint of 21 November
2001 before it was examined by the Supreme Administrative Court since
the Minister had, following his complaint, issued the decision in
question. The applicant also requested that a fine be imposed on the
Minister for failure to execute the decision of the Supreme
Administrative Court of 8 September 1999. That complaint was also
withdrawn by the applicant before it was examined by the Supreme
Administrative Court since the Minister had issued the decision on
the merits.
- The
remedy the applicant used was therefore adequate and sufficient to
afford him redress in respect of the alleged breach. It also resulted
in the acceleration of the proceedings. 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 his obligation under Article 35 § 1.
30.
For these reasons, the Government’s plea of inadmissibility on
the ground of non-exhaustion of domestic remedies must be dismissed.
31. 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
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 maintained that the authorities had
shown due diligence in the proceedings but many factors had
contributed to the length of the proceedings.
- The
applicant submitted that the “reasonable time”
requirement laid down in Article 6 § 1 had not been complied
with, referring to the long periods of unexplained inactivity on the
part of the administrative authorities.
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 observes that the case involved a certain degree of
complexity. However, it considers that this in itself cannot justify
the overall length of the proceedings.
- As
regards the conduct of the applicant, the Court, having regard to the
available evidence, does not find it established that the applicant
substantially contributed to the delays in the proceedings.
- As
regards the conduct of the relevant authorities, the Court notes that
there were frequent periods of inactivity. By way of example, the
Court observes that there was a period of almost two years and nine
months of inactivity between 12 December 1994 when the applicant
lodged his request and 29 August 1997, when the Minister issued his
decision. Subsequently, there was a period of one year and six months
of inactivity between 24 February 1998 when the applicant
appealed against the decision of the Minister and 8 September 1999,
when the Supreme Administrative Court quashed the challenged decision
and remitted the case. The Court observes that there were other
unexplained periods of inactivity in the subsequent proceedings, such
as a period of almost twelve months between 21 January 2003 when the
Supreme Administrative Court quashed the decision of the Minister
and 27 January 2004, when the Minister dismissed the applicant’s
request for the third time. Finally, the Court observes that there
was a period of five years of inactivity which had started on
9 February 2004.
- The
Court observes that the delays in the proceedings were caused mainly
by the successive remittals. Given that a remittal of a case for
re-examination is usually ordered as a result of errors committed by
lower instances, the Court considers that the repetition of such
orders within one set of proceedings discloses a deficiency in the
procedural system as applied in the present case (see, mutatis
mutandis, Wierciszewska v. Poland,
no. 41431/98, § 46, 25 November 2003).
-
The foregoing considerations are sufficient to enable the Court to
conclude that the applicant’s case was not heard within a
reasonable time.
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 EUR 20,000 in respect of non-pecuniary damage.
- The
Government submitted that the claim was exorbitant.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 9,600
under that head.
B. Costs and expenses
- The
applicant also claimed EUR 84.10 for the costs and expenses incurred
before the domestic administrative authorities and courts and before
the Court.
-
The Government contested the claims. They submitted that only the
costs actually had incurred before the Court should have been taken
into consideration. They pointed out that the applicant had confirmed
his expenses in that regard in the amount of PLN 27.70.
- 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
considers it reasonable to award the applicant, who was not
represented by a lawyer, the sum of EUR 32 under this head.
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;
- 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 9,600
(nine thousand six hundred euros) in respect of non-pecuniary damage
and EUR 32 (thirty two euros) in respect of costs and expenses,
plus any tax that may be chargeable to be converted into the currency
of the respondent State 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.
4. Dismisses unanimously the remainder of the applicant’s
claims for just satisfaction and for the costs and expenses.
Done in English, and notified in writing on 2 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
