BUKOWSKI AND OTHERS v. POLAND - 47395/09 (Judgment : Article 6 - Right to a fair trial : First Section Committee) [2018] ECHR 996 (06 December 2018)

In the case of Bukowski and Others v. Poland,

The European Court of Human Rights (First Section) sitting as a Committee composed of:

Ksenija Turković, President,
Krzysztof Wojtyczek,
Pauliine Koskelo, judges,

and Abel Campos, Section Registrar,

Having deliberated in private on 13 November 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 47395/09) against the Republic of Poland, lodged with the Court on 13 August 2009 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by three Polish nationals, Mr Eugeniusz Bukowski ("the first applicant"), Ms Grażyna Zmysłowska ("the second applicant") and Ms Jolanta Barszcz ("the third applicant").

2. The Polish Government ("the Government") were initially represented by their Agent, Mr J. Wołąsiewicz, subsequently by Ms J. Chrzanowska, and later by Mr J. Sobczak, of the Ministry for Foreign Affairs.

3. On 18 April 2011 the complaint concerning the length of the proceedings for the right of perpetual use was communicated to the Government under Article 6 of the Convention.

4. The Government objected to the examination of the application by a Committee. After having considered the Government's objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The first applicant, Mr Eugeniusz Bukowski, the second applicant, Ms Grażyna Zmysłowska, and the third applicant, Ms Jolanta Barszcz, were born in 1931, in 1960 and 1959 respectively and live in Warsaw.

A. Background to the case

6. The property in Warsaw which gives rise to the present application (two adjacent plots of land with a detached house situated on it) was originally co-owned by the applicants' predecessors, the D. family and the K. family.

7 . The land and the building in question fell under the Decree of 26 October 1945 on Ownership and Use of Land in Warsaw by virtue of which the Warsaw Municipality (and after 1950, the State Treasury) became the owner of all plots of land located in Warsaw. Due to subsequent amendments of law, on 6 January 1992 ("the 1992 decision") the land in question was transferred ex lege to the Warsaw Municipality.

8. According to a further donation contract, a sale contract and the rules on inheritance, since 1998 the rights and claims to the land and the building have belonged in 3/6 to the third applicant, in 2/6 to the second applicant and in 1/6 to the first applicant.

B. First set of the proceedings (the right of ownership and the right of perpetual use)

9. On 22 June 1988 the third applicant filed with the Mayor of Warsaw an application for restitution of the right of ownership of the building and the land in question pursuant to the Land Administration and Expropriation Act of 29 April 1985 ( Ustawa o gospodarce gruntami i wywłaszczaniu nieruchomości ). On 12 September 1996 the first applicant and on 25 February 1998 the second applicant joined the proceedings.

10 . In a decision of 3 January 2005 the Mayor of Warsaw noted that on 1 January 1998 the new Land Administration Act of 21 August 1997 had entered into force. Pursuant to section 214 of that act restitution of the right of ownership of the land was not possible. The former owners whose property had been taken over by the State and whose claims for restoration had expired were only entitled to apply for perpetual use of the land. Consequently, the Mayor granted the applicants the right of perpetual use of the land and declared that they retained the ownership of the building located thereon.

11. On 17 January 2005 the applicants applied to have this decision amended and the ownership of the land restored.

12. On 6 June 2005 the Warsaw Self-Government Board of Appeal quashed the impugned decision and remitted the case for re-examination.

13 . On 21 November 2005 the Mayor of Warsaw issued a decision, granting the applicants the right of perpetual use of the land. The Mayor decided to return the ownership of the building to the applicants and decided on the annual amount of fees to be paid for the perpetual use of the land.

14 . On 8 December 2005 the applicants appealed against this decision objecting to the amount of fees.

15 . On 5 December 2007 the Warsaw Self-Government Board of Appeal quashed the decision of 21 November 2005 (see paragraph 13 above) and remitted the case for re-examination.

16. On 15 October 2008 the applicants lodged with the Warsaw Regional Administrative Court a complaint about the inactivity on the part of the Mayor of Warsaw.

17 . By a judgment of 28 January 2009 the Warsaw Regional Administrative Court obliged the Mayor of Warsaw to issue a decision within four weeks.

18 . On 18 June 2009 the Mayor of Warsaw issued a new decision, granting the applicants a right of perpetual use of the land and the ownership of the house. It further fixed the amount of annual fees to be paid for the perpetual use of land.

C. Second set of the proceedings (amount of fees for the perpetual use of land)

19. On 30 June 2009 the applicants applied to the Warsaw Self-�Government Board of Appeal contesting the amount of fees for the perpetual use of land.

20. On 5 November 2009 the Warsaw Self-Government Board of Appeal upheld the impugned decision.

21. On 27 November 2009 the applicants lodged an appeal with the Warsaw Regional Administrative Court. On 1 June 2010 the Warsaw Regional Administrative Court rejected their appeal as lodged out of time. However, subsequently, it granted them leave to appeal out of time.

22. On 26 January 2011 the Warsaw Regional Administrative Court dismissed the applicants' appeal.

23 . The applicants lodged a cassation appeal with the Supreme Administrative Court, which was dismissed on 9 August 2012.

24 . On 24 May 2013 the applicants signed a notarial deed by virtue of which they acquired the ownership of the building and a right of perpetual use of the land.

D. Third set of the proceedings (a request to declare the 1992 decision null and void)

25 . On 6 April 2010 the applicants filed an application to declare the 1992 decision (see paragraph 7 above) null and void.

26. On 25 February 2011 the Minister of the Interior refused to declare the 1992 decision null and void.

27. Subsequently, on various dates, the applicants applied to have the case re-examined. Following several remittals on 12 February 2013 the Warsaw Regional Administrative Court refused the applicants' request.

28. On 14 March 2013 the applicants lodged a cassation appeal with the Supreme Administrative Court. However, they have failed to submit any information about the further course of the proceedings.

E. Fourth set of the proceedings (transformation of the right of perpetual use into the right of ownership)

29 . On 20 June 2013 the applicants applied to the Mayor of Warsaw for transformation of their right of perpetual use of land into the right of ownership under the Act of 25 July 2005 on Transformation of a Right of Perpetual Use into a Right of Ownership.

30. On 28 August 2013 the Board of the Mokotów District ( Zarząd Dzielnicy Mokotów ) refused to grant the application. The applicants appealed against this decision on 13 September 2013.

31. On 3 October 2013 and 3 September 2014 the Warsaw Self-�Government Board of Appeal and the Warsaw Regional Administrative Court, respectively, upheld the first-instance decision.

32. On 3 November 2015 the Supreme Administrative Court quashed both decisions.

33 . On 14 April 2016 the Board of the Mokotów District issued a decision on the free of charge transformation of the right of perpetual use of the land into the right of ownership.

II. RELEVANT DOMESTIC LAW

34. The relevant domestic law concerning the remedies against the excessive length of administrative proceedings is set out in the Court's judgment in the case Wcisło and Cabaj v. Poland (nos. 49725/11and 79950/13, §§ 88-102, 8 November 2018).

35. The relevant provisions of the Code of Administrative Procedure relating to situations when a final administrative decision may be annulled are set out in the Court's decision in the case of Lubelska Fabryka Maszyn i Narzędzi Rolniczych 'Plon' and 2 other applications ((dec.) 1680/08 , §§ 63-�64, 3 October 2017).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

36. 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, in so far as relevant, 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..."

A. Scope of the case

37. In the present case, the applicants generally complain about the length of the administrative proceedings. However, the Court notes that there were, in fact, four distinct sets of proceedings.

38 . The first set of proceedings concerned the right of ownership of the land and the right of perpetual use of it (see paragraphs 9-18 above).

39. The second set of proceedings concerned the amount of fees for the perpetual use of land (see paragraphs 19-24 above).

40. The third set of proceedings concerned the request for annulment of the1992 decision (see paragraphs 25 and 26 above).

41 . The fourth set of proceedings is related to the transformation of the right of perpetual use into the right of ownership (see paragraphs 27-31 above).

B. Admissibility

1. The Government's preliminary objections

(a) The Government's objection of non-exhaustion of domestic remedies

42. The Government raised a preliminary objection that the applicants failed to exhaust the domestic remedies available to them under Polish law, as required by Article 35 § 1 of the Convention. In particular, they did not seek compensation for the damage resulting from the excessive length of proceedings under Article 417 of the Civil Code.

43. The applicants disagreed.

44. The Court has already examined a similar objection and dismissed it (see Mularz v. Poland , no. 9834/08, § 46, 4 October 2011). The Court sees no reasons to depart from those findings in the present case.

45. Accordingly, the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.

(b) The Government's objection that the applicants did not suffer a significant disadvantage

46. The Government further argued, that the application should be found inadmissible under Article 35 § 3(b) of the Convention. They maintained that taking into account the fact that the right of perpetual use of the land and the ownership of the building had already been returned to the applicants, it cannot be said that they suffered a significant disadvantage.

47. The Court observes that the Government's argument does not concern the length of the proceedings as such, but their outcome. The applicants' complaint is based on the allegedly important adverse consequences caused to them by the excessive length of the proceedings. Moreover, they were not in any way compensated for it (see by contrast, Galović v. Croatia (dec.), no. 54388/09, § 74, 5 March 2013).

48. This objection must therefore also be dismissed.

2. The Court's conclusion

(a) First set of the proceedings

49. The Court notes that the complaint concerning the length of the first set of the proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

(b) Second set of the proceedings

50. The Court observes that the proceedings concerning the fees for the perpetual use started on 18 June 2009 and were terminated by the Supreme Administrative Court's judgment of 9 August 2012. However the period to be taken into consideration began only on 27 November 2009 when the applicants appealed against the decision of the Warsaw Self-Government Board of Appeal (see paragraph 21 above). It was then that a "dispute" within the meaning of Article 6 § 1 arose (see, for example, Wcisło and Cabaj , cited above § 173). The period to be taken into consideration thus lasted little more than two years and nine months. The Court finds that the proceedings do not disclose periods of inactivity such as to render them incompatible with Article 6 § 1 of the Convention. Nor does the overall length of the proceedings infringe the reasonableness requirement of that provision. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

51. The Court notes that the proceedings concerning the request for annulment of the 1992 decision were terminated on 25 February 2011, when the Minister of the Interior refused to declare the impugned decision null and void (see paragraph 26 above). Subsequently, the applicants unsuccessfully requested the re-�examination of the case (see paragraph 27 above).

52. The Court further observes that this set of the proceedings, instituted under Article 156 of the Code of Administrative Procedure, relates to declaring a final administrative decision null and void (see paragraph 35 above).

53. However, the Court reiterates in that respect that, according to its established case-law, the Convention does not guarantee a right to have proceedings terminated by a final decision reopened (see, inter alia , Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 44, ECHR 2015, with further references). It follows that the applicants' complaint concerning the length of the third set of the proceedings is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

3. The fourth set of the proceedings

54. The fourth set of proceedings began on 20 June 2013 and ended on 14 April 2016. However, the period to be taken into consideration began only on 13 September 2013 (see Wcisło and Cabaj , cited above, § 173). It thus lasted two years and seven months. The Court finds that the proceedings do not disclose periods of inactivity such as to render them incompatible with Article 6 § 1 of the Convention. Nor does the overall length of the proceedings infringe the reasonableness requirement of that provision. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

C. Merits

1. Period to be taken into consideration

55. The Court observes that the first set of administrative proceedings was instituted on 22 June 1988 (see paragraph 9 above). However, the period to be taken into consideration began only on 17 January 2005 when the applicants appealed against the decision of the Mayor of Warsaw (see Wcisło and Cabaj , cited above, § 173). The proceedings ended on 18 June 2009 (see paragraph 18 above). The period to be taken into consideration thus lasted four years, five months and one day.

2. Reasonableness of the length of that period

56. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

57. The Court acknowledges that the case was complex both as to the facts and as to the law.

58. As regards the conduct of the authorities, the Court notes that there was a period of two years of inactivity between 8 December 2005, when the applicants appealed against the Mayor's decision of 21 November 2005, and 5 December 2007, when the decision in this respect was given by the Warsaw Self-Government Board of Appeal (see paragraphs 14 and 15 above).

59. The Court observes that there was further no progress in the proceedings between 5 December 2007, when the Warsaw Self-Government Board of Appeal quashed the first-instance decision and remitted the case for re-examination, and 18 June 2009, when the Mayor of Warsaw issued a new decision (see paragraph 18 above). The proceedings were not accelerated despite the instruction issued on 28 January 2009 by the Regional Administrative Court to comply with the deadline of four weeks (see paragraph 17 above).

60. While the applicants were active in the proceedings, yet there is no indication that they contributed to their length.

61. Having regard to the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to justify the overall length of the proceedings in the present case. Consequently, the Court considers that the overall length of the proceedings complained of exceeded what was reasonable.

62. There has therefore been a violation of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

63. The applicants complained under Article 1 of Protocol No. 1 to the Convention that their ownership had not been restored and that, as a result, they had to bear annual fees for the perpetual use of the land.

64. The Court notes that on 14 April 2016 the Board of the Mokotów District issued a decision on the free of charge transformation of the perpetual use of the land into the right of the ownership (see paragraph 33 above).

65. Therefore, the applicants had lost victim status in respect of the alleged violation of Article 1 of Protocol No. 1 to the Convention.

66. Accordingly, this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

67. 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

68. The applicants claimed 300,000 Polish zlotys (PLN) (approximately 75,000 euros (EUR)) in respect of pecuniary and non-pecuniary damage.

69. The Government contested the claim.

70. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. At the same time, it considers that the applicants must have sustained non-�pecuniary damage on account of the protracted length of the proceedings. Ruling on an equitable basis it awards EUR 1,625 to each of the applicants.

B. Costs and expenses

71. The applicants also claimed reimbursement of the costs incurred before the domestic courts and of other expenses which are unrelated to the admissible complaint before the Court.

72. Regard being had to the documents in its possession and to its case-�law, the Court rejects the claim for costs and expenses.

C. Default interest

73. The Court considers it appropriate that the default interest rate 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 first set of the administrative 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 each of the applicants, within three months, EUR 1,625 (one thousand six hundred and twenty-five euros) plus any tax that may be chargeable, in respect of non-pecuniary damage, 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 amount 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 applicants' claims for just satisfaction.

Done in English, and notified in writing on 6 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Ksenija Turković
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> BUKOWSKI AND OTHERS v. POLAND - 47395/09 (Judgment : Article 6 - Right to a fair trial : First Section Committee) [2018] ECHR 996 (06 December 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/996.html Cite as: CE:ECHR:2018:1206JUD004739509, ECLI:CE:ECHR:2018:1206JUD004739509, [2018] ECHR 996