CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 septembre 2009

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POLAND   (Application no. 28604/03)             JUDGMENT       STRASBOURG   15 September 2009   FINAL   15/12/2009   This judgment may be subject to editorial revision. In the case of Lorenc v.   Poland, The European Court of Human Rights (Fourth Section), sitting as   a   Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Giovanni Bonello,   Ljiljana Mijović,   David Thór Björgvinsson,   Ledi Bianku,   Mihai Poalelungi, judges, and Fatoş Aracı, Deputy Section Registrar , Having deliberated in private on 25 August 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 28604/03) 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, Ms Anna Lorenc (“the applicant”), on 21 August 2003. 2.     The applicant was represented by Mr M. Wątrobiński, a lawyer practising in Wloszczowa. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of   Foreign Affairs. 3.     On 1 September 2008 the President of the Fourth Section 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 4.     The applicant was born in 1946 and lives in Jarocin. A.     Background of the case 5.     The applicant’s relative – a certain W.W. – owned the Jarocin Furniture Factory, registered under numbers: no. 87/1 and 87/2 with a   surface area of 4,955 square metres. By an administrative decision of   11   January   1955 of the Board of the Poznań National Council ( Prezydium Rady Narodowej ) the factory and the adjacent land were expropriated. The applicant is one of the heirs of the owner of that property. B.     Administrative proceedings for restitution of the property 6.     On 12 April 2001 the applicant together with other members of her family lodged a request with the Mayor of the Jarocin District ( Starosta ) for   restitution of the property. 7.     On 22 June 2001 the applicant lodged a complaint about the inactivity of the Mayor of the Jarocin District with the District Council ( Rada Powiatu ). The complaint was referred to the Wielkopolski Governor ( Wojewoda ) as the competent administrative authority. 8.     On 5 July 2001 the Mayor of the Jarocin District discontinued the proceedings. The applicant appealed. 9.     On 6 September 2001 the Wielkopolski Governor informed the applicant that her complaint about the inactivity of the Mayor of the Jarocin District had been left without consideration since on 5   July   2001 the Mayor had issued a decision. 10.     On 10 September 2001 the Wielkopolski Governor quashed the decision of the Mayor of the Jarocin District and remitted the case. 11.     On 22 October 2001 the Mayor of the Jarocin District stayed the proceedings due to the applicant’s failure to produce all necessary decisions confirming that she had acquired the property as the heir of the deceased owner. 12.     On 18 March 2002 the applicant asked for the resumption of the proceedings, to no avail. 13.     On 10 October 2002 the applicant lodged a complaint about the inactivity of the Mayor of the Jarocin District with the District Council ( Rada Powiatu ). On 27 December 2002 her complaint was referred to the Wielkopolski Governor. 14.     On 3 June 2003 the Wielkopolski Governor dismissed the complaint about the inactivity of the Mayor of the Jarocin District. It held that even if   the applicant had submitted all of the necessary testamentary evidence, the proceedings would not have been resumed until the conclusion of the administrative proceedings concerning the applicant’s request for a   declaration that the expropriation decision was null and void (see below). 15.     The proceedings are still stayed. C.     Administrative proceedings to declare the expropriation decision null and void 16.     On 6 August 2001 the applicant lodged an application with the Office for Housing and Town Development ( Urząd Mieszkalnictwa i   Rozwoju Miast ) for a declaration that the expropriation decision of   11   January   1955 was null and void. 17.     By a decision of 9 May 2002 the President of the Office for Housing and Town Development ( Prezes Urzędu Mieszkalnictwa i Rozwoju Miast) refused to institute the administrative proceedings, since the applicant had failed to produce the relevant documents in support of her claim. The applicant made an application for reconsideration of the matter. 18.     On 30 July 2002 the President of the Office for Housing and Town Development quashed his decision of 9 May 2002. 19.     On 30 May 2003 the President of the Office for Housing and Town Development decided to stay the proceedings, following the death of one of   the parties to the proceedings. 20.     By a decision of 9 February 2004 the Minister of Infrastructure ( Minister Infrastruktury ) resumed the proceedings and asked the Jarocin District Court ( Sąd Rejonowy ) and Ostrów District Court to provide the relevant documents concerning the property at issue. 21.     By a letter of 26 April 2004 the applicant was informed by the Cabinet Office that the Minister of Infrastructure had been asked to   accelerate the proceedings and to inform the authorities about the reasons for his delay. 22.     On 12 May 2004 the applicant was informed that the Minister of   Infrastructure had asked several administrative authorities to provide the documents from the archives concerning the status of the property at issue. 23.     On 29 July 2005 the Ministry of Infrastructure apologised for the delay and stated that it would not be possible to conclude the proceedings within the time-limit specified in Article 35 of the Code of Administrative Procedure due to the need to undertake further examination of the application. Moreover, the Ministry indicated that, immediately after the determination of all the parties to the proceedings, the hearing would take place. 24.     On 16 April 2006 the applicant lodged a complaint about the inactivity of the Minister of Infrastructure with the Prime Minister. 25.     On 19 April 2006 the applicant requested the Ministry of Transport and Construction ( Ministerstwo Transportu i Budownictwa ) to accelerate the proceedings and to schedule an administrative hearing in the case. 26.     On 26 April 2006 the Ministry of Transport and Construction apologised for the delay and informed the applicant that it would not be   possible to conclude the proceedings within the time-limit specified in   Article   35 of the Code of Administrative Procedure due to its heavy workload and the complex nature of the case. The Ministry informed the applicant that the decision would be issued by 30 November 2006. 27.     On 7 August 2006 the applicant lodged a complaint about the inactivity of the Minister of Transport and Construction with the Prime Minister. 28.     On 30 October and 1 December 2006 the Minister of Construction ( Minister Budownictwa ) informed the Cabinet Office about the reasons for the delay in the proceedings. He stressed that the case was particularly complex and he referred to the need to continue the process of gathering evidence. 29.     On 18   December   2006 the Ministry of Construction informed the applicant that it would not be possible to conclude the proceedings within the time-limit specified in Article 35 of the Code of Administrative Procedure due to the need to establish the current address of one of the parties to the proceedings. The applicant was further informed that the decision would be issued by 31 March 2007. 30.     By a decision of 28 April 2008 the Minister of Infrastructure refused to declare the expropriation decision null and void. 31.     On 23 May 2008 the applicant lodged an application for reconsideration of the matter. 32.     On 22 July 2008 the applicant was informed by the Minister of   Infrastructure that it would not be possible to conclude the proceedings within the time-limit specified in Article 35 of the Code of Administrative Procedure and that the decision would be issued by 31   December   2008. 33.     The proceedings are still pending. II.     RELEVANT DOMESTIC LAW AND PRACTICE 34.     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 35.     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...” 36.     The Government contested that argument. 37.     In relation to the proceedings for restitution of the property, the period to be taken into consideration began on 12   April   2001 and has not yet ended. It has thus lasted over 8 years and 1 month, for two levels of   jurisdiction. 38.     As regards the proceedings to declare the expropriation decision null and void, the period to be taken into consideration began on 6   August   2001 and has not yet ended. It has thus lasted some 7 years and 9 months for two levels of jurisdiction. A.     Admissibility 39.     The Government submitted that the applicant had not exhausted remedies available under Polish law. They maintained that she had not lodged a complaint about inactivity on the part of the authority obliged to   issue a decision with the Supreme Administrative Court. 40.     The applicant contested the Government’s arguments. 41.     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, Reports of Judgments and Decisions 1996-VI, pp.   2275–76, §§   51–52). 42.     The Court notes that the applicant several times lodged complaints about inactivity on the part of the administrative authorities responsible for giving a decision (see paragraphs 7, 13, 24 and 27 above). The competent supervisory bodies often found the complaints well-founded, ordered that the proceedings be accelerated and apologised for the delay (see paragraphs 26 and 28 above). The remedy the applicant used was therefore adequate and sufficient to afford her redress in respect of the alleged breach. 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 her obligation under Article   35 § 1. 43.     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; Kaniewski v.   Poland , no. 38049/02, §§   32-39, 8   November 2005). 44.     Accordingly, the Court concludes that, for the purposes of   Article   35   §   1 of the Convention, the applicant has exhausted domestic remedies. For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.   45.     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 46.     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). 47.     The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender , cited above). 48.     Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of   persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of both sets of proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 49.     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 50.     The applicant claimed 15,000 euros (EUR) in respect of   non ‑ pecuniary damage. 51.     The Government did not express an opinion on the matter. 52.     The Court considers that the applicant must have sustained non ‑ pecuniary damage. Ruling on an equitable basis, it awards her EUR   5,000 under that head. B.     Costs and expenses 53.     The applicant also claimed a lump sum of EUR 6,000 for the costs and expenses incurred before the domestic courts and for those incurred before the Court. 54.     The Government did not express an opinion on the matter. 55.     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 sum of EUR 800 for the proceedings before the Court. C.     Default interest 56.     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 application admissible;   2.     Holds that there has been a violation of   Article 6 § 1 of the Convention in respect of both sets of proceedings;   3.     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 5,000 (five thousand euros) in   respect of non-pecuniary damage and EUR 800 (eight hundred euros) in respect of 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 15 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Fatoş Aracı   Nicolas Bratza Deputy Registrar President