Bogdan KEDZIOR v Poland - 38166/02 [2009] ECHR 916 (19 May 2009)

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The European Court of Human Rights (Fourth Section), sitting on 19 May 2009 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having regard to the declaration submitted by the respondent Government on 19 February 2009 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

The applicant, Mr Bogdan Kędzior, is a Polish national who was born in 1943 and lives in Gdańsk. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

By a decision of the National Council (Rada Narodowa) of 4 November 1971 the property in question was categorised as abandoned (mienie opuszczone) and nationalised.

On 10 October 1989 the applicant’s grandmother died and the applicant inherited her estate.

On 25 September 1990 the applicant lodged a request to reopen the proceedings by which the property had been nationalised with the Piotrków Trybunalski Governor’s Office (Urząd Wojewódzki). He relied on the fact that his grandmother had not been properly informed of the administrative proceedings and that therefore she had been unable to defend her interests, which constituted a basis for declaring the relevant decision null and void.

On 30 December 1990 the applicant complained to the Governor’s Office alleging inactivity on the part of the administrative authorities. He referred to the relevant provisions of the Code of Administrative Proceedings (Kodeks Postępowania Administracyjnego), which set out time-limits for dealing with cases, and submitted that those time-limits had expired.

On 31 January 1991 the Piotrków Trybunalski Governor (Wojewoda) gave a decision rejecting the applicant’s request, holding that the time limits for lodging such requests had expired.

On 20 February 1991 the applicant appealed to the Minister of Agriculture (Minister Rolnictwa).

On 10 May 1991 the Minister of Agriculture informed the applicant that his appeal would be examined by the end of the third quarter of 1991.

On 20 November 1991 the Minister of Agriculture postponed examination of his appeal until the end of the second quarter of 1992.

On 8 December 1992 the applicant complained about the inactivity of the administrative authority to the Ombudsman (Rzecznik Praw Obywatelskich). It is unclear from the case file whether this complaint was resolved in the applicant’s favour.

On 21 March 1994 the Minister of Agriculture overruled the challenged decision and remitted the case for re-examination.

On 8 July 1994 the Piotrków Trybunalski Governor gave a decision refusing to institute proceedings.

Between 22 July 1994 and 24 April 1997 the Minister of Agriculture postponed examination of the applicant’s request on four occasions (the relevant information was sent to the applicant on 11 August 1994, 25 April and 30 December 1995 and 9 January 1997).

On 20 January 1997 the applicant complained to the Minister of Agriculture about the inactivity of the administrative authorities.

On 8 March 1997 the applicant lodged a further complaint, alleging inactivity, with the Supreme Administrative Court (Naczelny Sąd Administracyjny).

It is unclear from the case file whether the respective authorities examined the applicant’s complaints.

On 23 April 1997 the Minister of Agriculture overruled the challenged decision of 8 July 1994 and again sent the case back for re-examination.

On 18 June 1997 the Piotrków Trybunalski Governor apologised to the applicant for the delay in examining his request.

Subsequently, due to a reform of administrative proceedings, the case was transferred to the Bełchatów District Office (Urząd Rejonowy).

On 15 November 1997 the Bełchatów District Office gave a decision refusing to reopen the proceedings.

On 25 November 1997 the applicant appealed against that decision to the Piotrków Trybunalski Governor.

On 15 January 1998 the Piotrków Trybunalski Governor overruled the contested decision and sent the case back to the Bełchatów District Office for re-examination.

On 27 January 1998 the Bełchatów District Office granted the applicant’s request and reopened the administrative proceedings.

On 9 June 1998 the Bełchatów District Office, after the reopening of the proceedings, gave a decision refusing to overrule the decision to nationalise the land of 4 November 1971.

On 10 August 1998 the Piotrków Trybunalski Governor upheld the contested decision.

On 13 September 1998 the applicant lodged a complaint with the Supreme Administrative Court.

On 17 April 2002 the Supreme Administrative Court gave a judgment setting aside the challenged decision and the preceding decision of the first instance administrative authority.

On 10 October 2003 the Łódź Governor gave a decision declaring the decision of 4 November 1971 null and void.

The relevant domestic law concerning inactivity on the part of 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 applicant complained under Article 6 § 1 of the Convention that the administrative proceedings in his case had exceeded a reasonable time.

He also complained under Article 1 of Protocol No. 1 claiming that in 1971 the property in question had been nationalised in breach of the relevant provisions and converted into a forest without the requisite administrative decision.

The applicant complained about the length of the proceedings. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

By letter dated 11 February 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

“...the Government hereby wish to express – by way of unilateral declaration – their acknowledgement of the unreasonable duration of the domestic proceedings in which the applicant was involved and that the applicant can claim to be a victim of violation of his right to have his case examined within the reasonable time in the meaning of Article 6 § 1 of the Convention.

In these circumstances and having regard to the facts of the case, the Government declare that they offer to pay to the applicant the amount of 20,000 Polish zlotys (PLN) as just satisfaction, which they consider to be reasonable in the light of the Court’s case-law...

The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free from any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention for the Protection of Human Rights. In the event of failure to pay this sum within the three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

The Government would respectfully suggest that the above declaration be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention...”

In a letter of 1 March 2009 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low and requested the Court not to strike the application out of the list.

The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court to strike a case out of its list in particular if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also observes that in certain circumstances it may strike out an application or part thereof under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court will carefully examine the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).

The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of an applicant’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ....; Majewski v. Poland, no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007).

Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed - which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

The applicant further complained under Article 1 of Protocol No. 1 that in 1971 the property in question had been nationalised in breach of the relevant provisions and converted into a forest without the requisite administrative decision.

However, the Court considers that this complaint relates to the facts which occurred before the date on which Poland recognised the right to individual petition. Therefore it must be declared inadmissible as incompatible ratione temporis with the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.

Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 6 § 1 of the Convention and of the methods for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Bogdan KEDZIOR v Poland - 38166/02 [2009] ECHR 916 (19 May 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/916.html Cite as: [2009] ECHR 916