FOURTH SECTION

CASE OF MIKOŁAJ PIOTROWSKI v. POLAND

(Application no. 15910/08)

JUDGMENT

STRASBOURG

12 October 2010

This judgment is final but it may be subject to editorial revision.

In the case of Mikołaj Piotrowski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Ljiljana Mijović, President,
	Lech Garlicki,
	Nebojša Vučinić, judges,
Fatoş AracıDeputy Section Registrar
Having deliberated in private on 21 September 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the  of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 
2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  On  the President of the Fourth Section of the Court decided to communicate the complaint concerning the length of the administrative proceedings to the Government. In accordance with Protocol No. 14, the application was assigned to a Committee of three Judges.
4.  The Government objected to the examination of the application by a Committee. After having considered the Government's objection, the Court rejected it.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1954 and lives in Zamostne. The applicant is the legal successor of his mother, Mrs K.A.P., who died in May 2003.
6.  On 1 September 1944 a property owned by L.B. – the applicant's grandfather and the father of K.A.P.- M.B. and H.L., was taken over by the State pursuant to provisions of the Decree of the Polish Committee of National Liberation on the Agricultural Reform of 6 September 1944 (Dekret PKWN o przeprowadzeniu reformy rolnej). No decision was delivered in the proceedings.
7.  The applicant submits that on 16 October 1991 his mother, K.A.P., who was the legal successor of L.B., informed the Siedlecki Governor (Wojewoda Siedlecki) that she had undertaken certain steps seeking restitution of her property or pecuniary compensation in lieu.
8.  It appears that the Governor informed the applicant's mother by a letter of 20 November 1991 that no laws regulating this matter had been enacted yet.
9.  On 1 December 1995 K.A.P. lodged a request with the Minister of Agriculture and Food Economics (Minister Rolnictwa i Gospodarki Żywnościowej) for restitution of the property. She argued that the property in question had been unlawfully expropriated, since the 1944 Decree had entered into force on 13 September 1944, i.e. after the date of the expropriation.
10.  On 9 January 1996 the Minister referred the case to the Siedlecki Governor.
11.  On 19 February 1996 the Siedlecki Governor gave a decision on the expropriation of the property in question, confirming that the property had been taken over by the State on 1 September 1944.
12.  On 27 February 1996 the applicant's mother appealed against the decision.
13.  On 7 March 1996 she reiterated her arguments. She added that the property in question had comprised a brickyard, a distillery, a glass-works and a power station and, should have therefore been as such, exempted from expropriation within the framework of the agrarian reform law.
14.  On 13 March 1996 the Minister of Agriculture informed K.A.P. that her appeal would be examined in the first quarter of 1997.
15.  On 20 March 1996 K.A.P. lodged a complaint with the Council of Ministers (Rada Ministrów) about the inactivity of the Minister of Agriculture.
16.  By a letter of 22 July 1996 the Office of the Council of Ministers (Biuro Rady Ministrów) requested the Minister of Agriculture to accelerate the proceedings.
17.  On 7 July 1997 K.A.P. enquired about the state of the proceedings pending before the Minister of Agriculture.
18.  On 11 August 1997 the Minister of Agriculture upheld the decision of 19 February 1996.
19.  The applicant's mother appealed.
20.  On 17 July 1998 she asked the Supreme Administrative Court (Naczelny Sąd Administracyjny) about the state of the proceedings.
21.  Subsequently, by a letter of 25 November 1998, she complained to the Ombudsman about the excessive length of the proceedings.
22.  On 23 November 1999 the Supreme Administrative Court quashed both the 1997 decision of the Minister of Agriculture and the preceding decision of the Siedlecki Governor. It held that the administrative authorities had failed to address the applicant's arguments concerning the non agricultural status of certain components of the property.
23.  On 27 October 2000 the Lubelski Governor (the Siedleckie Province had ceased to exist in the meantime) gave a decision declaring that the property had been taken over by the State in 1944 without compensation.
24.  On 17 November 2000 K.A.P. lodged an appeal with the Minister of Agriculture and Country Development (Minister Rolnictwa i Rozwoju Wsi).
25.  On 19 February 2001 she lodged a complaint with the Prime Minister (Prezes Rady Ministrów) about the inactivity of the Minister of Agriculture.
26.  She further complained, on 30 March 2001, to the Council of Ministers, about the inactivity of the Minister of Agriculture.
27.  On 17 April 2001 the Chancellery of the Prime Minister (Kancelaria Prezesa Rady Ministrów) requested the Minister of Agriculture to consider speeding up of the proceedings.
28.  On 30 May 2001 the Minister of Agriculture and Country Development quashed the decision of 27 October 2000 and remitted the case.
29.  On 9 January 2002 the Lubelski Governor informed K.A.P. that her application would be examined by the end of March 2002, as further evidence had to be taken.
30.  On 23 April 2002 the Lubelski Governor informed K.A.P. that her application would be examined by the end of June 2002.
31.  On 15 July 2002 the Lubelski Governor stayed the proceedings and requested K.A.P. to provide evidence that she was a legal successor of L.B. She lodged an interlocutory appeal.
32.  On 6 November 2002 the Minister of Agriculture dismissed her interlocutory appeal.
33.  On 31 December 2002 K.A.P. appealed against this decision.
34.  On 1 May 2003 K.A.P. died.
35.  On 14 April 2004 the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny) stayed the proceedings concerning suspension of the administrative proceedings, pending the termination of the inheritance proceedings after K.A.P.'s death.
36.  On 9 August 2005 the applicant, the legal successor of K.A.P., lodged a complaint with the Minister of Agriculture about the inactivity of the Lubelski Governor.
37.  On 14 November 2005 the Warsaw Regional Administrative Court quashed both the Minister's decision of 26 November 2002 and the Lubelski Governor's decision of 2002, by which the proceedings had been stayed. It noted that on 13 April 2000 the Wejherowo District Court (Sąd Rejonowy) had declared K.A.P. to be the legal successor of L.B. It held that the decisions to stay the proceedings had therefore been issued in breach of the provisions of the Code of Administrative Procedure, since the authorities should have been aware of the above-mentioned inheritance decision.
38.  Between August 2006 and October 2008 the Lubelski Governor tried to establish the whereabouts of any potential heirs of M.B. and H.L.
39.  On 9 August 2007 the applicant complained to the Lubelski Governor about the unreasonable length of the proceedings.
40.  On 13 September 2007 the Lubelski Governor informed the applicant that his application would be examined by the end of 2007.
41.  On 31 December 2007 the Governor informed the applicant that his application would be examined by the end of February 2008.
42.  On 27 February 2008 the Lubelski Governor informed the applicant that his application would be examined by 30 June 2008.
43.  On 3 April 2009 the Warsaw District Court decided that a trustee of an estate (kurator spadku) should be appointed in respect to parts of property owned by M.B. and H.L.
44.  On 21 April 2009 the Lubelski Governor informed the applicant that the dates and places of birth of both M.B. and H.L. were needed in order to declare them dead and to appoint a trustee of an estate. In these circumstances the new time limit for dealing with his application was set on 31 December 2009.
45.  On 11 January 2010 the Lubelski Governor informed the applicant that his application would be examined by 30 June 2010.
46.  On 24 May 2010 the Lubelski Governor discontinued the administrative proceedings instituted by the applicant. The applicant complained about the decision to the Minister of Agriculture.
47.  The proceedings are still pending.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
48.  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 LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS
49.  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...”
50.  The Government contested that argument.
51.  The period to be taken into consideration began on 1 December 1995 and has not yet ended. It has thus lasted fourteen years and eight months for three levels of jurisdiction.
A.  Admissibility
52.  The Government raised a preliminary objection that the applicant had not exhausted domestic remedies available to him under Polish law.
53.  In this respect, the Government underlined that the applicant did not attempt to pursue all effective domestic remedies with respect to his complaint about the length of the proceedings.
54.  The Government acknowledged that the applicant had on one occasion lodged an appeal with the higher authority under Article 37 § 1 of the Code of Administrative Procedure. However, they maintained that under Article 17 of the Law of 11 May 1995 on the Supreme Administrative Court (“The 1995 Act”) the applicant could have further lodged a complaint with the Supreme Administrative Court, since, by complaining first to the higher administrative authority, he had fulfilled a requirement under section 34 of the 1995 Act. The Government further submitted that after 1 January 2004, that is after the date of the entry into force of the Law of 30 August 2002 on Proceedings before Administrative Courts (“The 2002 Act”), which replaced the 1995 Act, the applicant could have made use of Section 3 § 2 of the 2002 Act which contains provisions analogous to Section 17 of the 1995 Act.
55.  Furthermore, the Government observed that the applicant could have also complained about inactivity of the Lubelski Governor directly to the Supreme Administrative Court (and after 1 January 2004 to a Regional Administrative Court).
56.  Finally, they argued that the applicant had failed to lodge a compensation claim with a civil court in order to seek redress for the alleged damage which had resulted from the inactivity of the administrative authorities. They relied on Articles 417 and 417¹ § 3 of the Civil Code.
57.  The applicant claimed that he had exhausted all available domestic remedies.
58.  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, 1996‑VI, pp. 2275–76, §§ 51–52).
59.  The Court notes that both K.A.P. and the applicant lodged complaints about inactivity on the part of the (see paragraphs 15, 25, 26 and 36 above). The competent supervision bodies found the complaints well-founded and ordered the proceedings to be accelerated (see paragraphs 16 and 27 above). The Court further notes that the relevant administrative authorities, having exceeded the statutory time-limits for giving a decision, informed the applicant of the delay and set new dates (see paragraphs 29, 30, 40, 41, 42, 44 and 45 above).
In these circumstances the Court does not consider that the applicant should have lodged a further complaint with the Supreme Administrative Court in order to fulfil his obligation under Article 35 § 1. The remedies the applicant used were therefore adequate and sufficient to afford him redress in respect of the alleged breach (see Puczyński v. Poland, no. 32622/03, § 36, 8 December 2009).
60.  The Court further observes that according to Article 417¹ § 3 of the Civil Code no claim for damages resulting from the unreasonable length of administrative proceedings may arise unless it has been formally determined that there was an unlawful failure to issue an administrative decision within the relevant time-limits. The Court also notes that the domestic case-law relied on by the Government does not constitute evidence of sufficiently established judicial practice to show that a claim for compensation based on Article 417¹ § 3 of the Civil Code was an effective remedy, and they have thus failed to substantiate their contention (see Boszko v. Poland, no. 4054/03, § 35, 5 December 2006; , no. 43702/02, § 74, 17 October 2006; and Pióro and Łukasik v. Poland, no. 8362/02, § 35, 2 December 2008).
61.  Accordingly, the Court concludes that in the circumstances of the case seen as a whole the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.
62.  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
63.  The Government submitted that the case was very complex, mainly due to the unknown whereabouts of the potential heirs of the two co-owners of the disputed property.
64.  The applicant argued that the complexity of the case, referred to by the Government, could not by itself explain the overall length of the proceedings. Moreover, the conduct of the proceedings by the administrative authorities was criticised by the Warsaw Regional Administrative Court in its judgment of 14 November 2005. In conclusion, according to the applicant, the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
65.  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).
66.  As regards the administrative proceedings in the present case, the Court, having regard to the evidence available, accepts that the case is of a certain complexity.
67.  The Court further acknowledges that the applicant lodged several appeals and complaints in the course of the impugned proceedings. However, in this connection the Court notes that following his appeals two decisions on the merits were quashed by the higher authorities and remitted for re-examination. Given that a remittal of a case for re-examination is usually ordered as a result of errors committed by the lower courts, 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, , , no. 41431/98, § 46, 25 November 2003). Moreover, the time-limits set to deal with the case were on many occasions prolonged, the authorities not being able to finish the examination of the case by the dates which had been fixed for that purpose.
68.  The foregoing considerations are sufficient to enable the Court to conclude that the applicant's case has not been heard within a reasonable time. There has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
69.  The applicant further complained, in substance under Article 1 of Protocol No. 1, that the property of his predecessor was unlawfully taken over by the State.
70.  The Court notes that a completed taking of property before the entry into force of the Convention for the respondent State does not give rise to any continuing situation of deprivation of a property right, as it is in principle an instantaneous act (see Kopecký v. Slovakia [GC], no. 44912/98, ECHR 2004‑IX). It follows that this complaint must be declared inadmissible in accordance with Article 35 §§ 1 and 3 as incompatible ratione temporis with the Convention.
71.  In so far as the applicant can be understood as complaining about inability to reclaim the property, the Court observes that the domestic proceedings to determine the applicant's claims are currently pending. Therefore, insofar as the applicant relies on Article 1 of Protocol No. 1 to the Convention, the Court considers that it would be premature to take a position on the substance of this complaint.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
72.  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
73.  The applicant claimed 26,500,000 zlotys (PLN) in respect of pecuniary damage and 50,000 euros (EUR) in respect of non-pecuniary damage.
74.  The Government did not express an opinion on the matter.
75.  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 applicant EUR 10,200 in respect of non‑pecuniary damage.
B.  Costs and expenses
76.  The applicant also claimed PLN 848 for the costs and expenses incurred before the Court and PLN 44,320 for those incurred before the domestic courts.
77.  The Government did not express an opinion on the matter.
78.  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 applicant the sum of EUR 220 under this head.
C.  Default interest
79.  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
1.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 10,200 (ten thousand two hundred euros) in respect of non‑pecuniary damage and EUR 220 (two hundred and twenty euros) for 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;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 12 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Ljiljana Mijović
	Deputy Registrar	President