CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 4 mars 2003

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Palm ,   Mrs   V. Strážnická ,   Mr   M. Fischbach ,   Mr   J. Casadevall ,   Mr   R. Maruste ,   Mr   L. Garlicki, judges , and   Mrs   F. Elens-Passos , Deputy Registrar , Having regard to the above application lodged on 21 November 1998, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, a Polish citizen, born in 1934, resides in Warsaw. The respondent Government are represented by Mr K.Drzewicki, the Agent. The facts of the case, as submitted by the parties, may be summarised as follows: In 1986 the applicant lodged a motion with the court claiming the inheritance of her late mother’s estate. On 30 January 1990 the Warsaw District Court issued a decision awarding to her one third of the estate. Consequently, she became the owner of one-sixth of the property, half of the estate having belonged to the applicant’s late mother’s second husband F.S. On 2 May 1990 F.S. lodged a motion with the court, claiming physical division of the estate, which comprised certain plots of land in the municipality of Izabelin. Expert reports as to the manner in which the estate could be divided were submitted to the court in April 1990, in July 1991, 20 March and December 1992, but no decision was given by the court. In January 1993 one of the parties to the proceedings, J.G., lodged an objection to the proposal for division submitted in the last expert report. Apparently the court subsequently called a new expert and ordered him to submit a new proposal as to the division. On 17 September 1993 a hearing was held. The parties unsuccessfully tried to reach a friendly settlement. The court ordered the preparation of a new expert opinion. On 7 March 1994 the expert appointed by the court submitted his report. On 21 September 1994 J.G. complained to the court that the proceedings were not progressing and that hearings were held only once or twice a year. The next hearing was held on 2 December 1994. The applicant did not agree that the case be decided by establishing co-ownership of the estate, instead of its physical division. On 25 February 1995 a new expert opinion was submitted to court. This report was subsequently submitted to the Izabelin Municipal Office for approval. On 23 March 1995 the Izabelin Municipal Office informed the court that it had not approved the proposal of the division of the estate as submitted by the expert, since it was incompatible with the general land-use plan of the municipality in that it did not take into account the public road to be constructed on the property concerned. On 25 April 1995 A.K., a new expert appointed by the court, submitted a new proposal for the division of the estate. On 24 July 1995 the Office of the Municipality of Izabelin again refused its approval for the division plan submitted by A.K., considering that it was incompatible with the current land-use plan in that the proposed plots were smaller than 1,000 square metres. On 20 September 1995 the expert submitted a supplementary report. On 24 September 1995 a meeting of the parties to the proceedings and the expert with the local planning authority was held. The parties were informed that the latest division proposal was incompatible with the current land-use plan, and that a new plan was being prepared. The proposal devised by the expert had been transmitted for consideration by the authority working on the new land-use plan. The new plan was to be adopted by the end of 1996. On 24 May 1996 the Izabelin Municipal Office requested the same expert, A.K., to submit a new division proposal. On 20 September 1996 A.K. informed the court that after consultation with the parties to the proceedings he did not see any possibility of devising a new plan to take into account the interests and demands of all the parties. On 7 November 1996 the Izabelin Municipal Office informed the court that the new proposal for the division of the property, which had apparently meanwhile been submitted by A.K., was incompatible with the current land-use plan. On 18 March 1997 the Izabelin Municipal Office informed the Warsaw District Court that a new land use plan was being prepared. On 19 March 1998 the Izabelin Municipal Office informed the court that the land-use plan of 1989 was still valid and legally binding. By a decision of 30 March 1998 the Warsaw District Court stayed the division proceedings until the establishment of a new general land-use plan by the local authorities of Izabelin. The court considered that under the current land-use plan the proposals of division submitted so far by the experts could not be adopted, whereas a new plan was being prepared. In December 1998 the municipal authorities informed the public that the outline of the new land-use plan was available for inspection and comments. On 2 July 1999 the applicant complained to the local municipality that the new plan had yet not been adopted and that the proceedings remained stayed. She submitted that the property concerned was deteriorating as it was improperly used and ill-maintained by its owners. On 6 July 1999 the municipality requested the applicant to submit to the local planning authorities a new proposal concerning the division of property. On 20 July 1999 the applicant lodged a motion with the Warsaw District Court for the resumption of the proceedings. On 28 June 2000 the Warsaw District Court resumed the proceedings. A hearing was held on 29   November 2000. The parties requested the court to appoint a new expert in order to prepare a new proposal for the division of the property. On 30 January 2001 a further hearing was held. On 20 March 2001 A.K., the expert, submitted his opinion as to the division of the property. The proceedings are pending. COMPLAINTS: The applicant complains under Article 6 of the Convention and Article 1 of the Protocol No 1 about the length of proceedings concerning the division of the estate, which have been pending since 1990. She submits that as a result of the protracted proceedings and the local authorities’ failure to adopt the general land-use plan, she cannot use the part of her property awarded to her by the judgment given on 30 January 1990 by the Warsaw District Court. At the same time, as an owner, she has to pay the land taxes to the local authorities of Izabelin. She further invokes Article 8 of the Convention. THE LAW 1.   The applicant complains under Article 6 of the Convention and under Article 1 of Protocol No. 1 to the Convention about the length of proceedings concerning the division of the estate, which have been pending since 1990. They have therefore lasted so far twelve years and ten months, of which a period of nine years and ten months falls after 1 May 1993, the date on which the Court became competent ratione temporis to examine individual petitions against Poland. Article 6 of the Convention, insofar as relevant, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” The Government argue that the applicant is mistaken in submitting that there is no valid land-use plan for the municipality of Izabelin, since the plan adopted in 1989 remains valid. The fact that a need to prepare a new plan was acknowledged by the municipality in 1995 does not affect the validity of that plan and it remains open to the court to rule on the basis of the said plan. The Government reject the allegation that the civil proceedings have exceeded a reasonable time and conclude that this part of the application is manifestly ill-founded. The applicant argues that the 1989 land-use plan is obsolete, that the municipality failed to adopt a new plan and that this failure negatively affects her right to a fair hearing and her property rights. She accepts that the land-use plan must take into consideration various local interests. However, the preparation of a new plan for the municipality of Izabelin has already lasted far too long. She reiterates that the civil proceedings have also exceeded a reasonable time. The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicants’ conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required. 2.   The applicant further complains under Article 8 that as a result of the protracted proceedings she cannot use the part of her property adjudged to her by the judgment given on 30 January 1990 by the Warsaw District Court. The Court observes that it is not in dispute that the applicant never lived at the property concerned. It cannot therefore be said that the property was her home or that it was protected by this provision insofar as it guarantees a “right to respect for home”. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaints concerning the length of proceedings relating to the division of the estate; Declares the remainder of the application inadmissible.   Françoise Elens-Passos   Nicolas Bratza   Deputy Registrar   President