Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28248/95

by Zofia HOLISZ

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 20 May 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 August 1994 by

Zofia Holisz against Poland and registered on 18 August 1995 under file

No. 28248/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on 6 May

1997 and the observations in reply submitted by the applicant on

23 June 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1932, is a pensioner

residing in Bukowno.

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

summarised as follows:

Particular circumstances of the case

I.

On 1 June 1977 the Mayor of Bukowno pronounced a decision fixing

compensation for the expropriation of certain properties owned by J.S.

located in Bukowno, including a plot No. 1593 at Nowa Street.

On 15 May 1979 the Mayor of Bukowno ordered the expropriation of

a property of 2482 square metres located in Bukowno-Village, owned by

J.S.

On 16 August 1990 the heirs of J.S., including the applicant,

requested the Katowice Regional Office to declare null and void the

decision of 1 June 1977 as the compensation fixed therein did not

correspond to the actual value of the expropriated plot No. 1593.

The Katowice Governor transmitted this request to the Municipal Board

of Appeal in Katowice, competent to deal with it under the 1990 reform

administration laws.

On 8 November 1991 the Municipal Board of Appeal in Katowice

declared that the decisions of 1 June 1977 and 15 May 1979 were null

and void, having been issued in flagrant breach of the applicable legal

provisions.

On 28 February 1992 the Olkusz Regional Court (S*d Rejonowy)

declared that the applicant had acquired title to the plot No. 1593.

On 2 March 1992 the Katowice Governor declared null and void the

decision of 15 May 1979 concerning the expropriation of plot No. 1593

on the ground that it was unlawful.

On 23 July 1993 the Katowice Regional Office, having regard to

the decision of 2 March 1992, fixed the compensation for the

expropriation ordered by the decision of 15 May 1979 at 5,000,000

zlotys. In August 1993 the applicant lodged an appeal with the

Katowice Regional Court.

On 9 December 1994 the Municipal Board of Appeal in Katowice,

acting proprio motu, set aside the decision of 8 November 1991 insofar

as it determined compensation for the plot No. 1593 in Bukowno and

discontinued the proceedings in the relevant part. The Board

considered that it had not been competent to set aside the decision of

1977 as, in accordance with the provisions relating to the reform of

administration of 1990, it was competent only to examine appeals

against decisions concerning the municipalities' own jurisdiction,

whereas the decision of 1977 did not fall within this ambit. It was,

consequently, the Katowice Governor who was competent to set that

decision aside.

On 16 December 1994 the applicant lodged an appeal against this

decision with the Municipal Board of Appeal which was obliged to

forward it together with the case-file to the Supreme Administrative

Court (Naczelny S*d Administracyjny) within thirty days of service of

the decision on the parties. She complained that the Board had acted

proprio motu and stated that by virtue of the court decision of

28 February 1992 she had acquired a title to property which had later

been registered with the local land registry. She submitted that the

interpretation of the laws as to the authority competent to pronounce

the decision had changed in the course of the proceedings concerning

her claim for compensation which she had instituted before the Katowice

Regional Court. However, this change should not have been to her

detriment as she could bear no responsibility therefor.

The submissions of the parties differ at this point as to the

subsequent events:

The Government submit that in January 1995 the Katowice Regional

Court requested the Board of Appeal to submit the administrative case-

file to it. The Board submitted the file to the Court on 30 January

1995. The applicant submits that on 16 January 1995 a hearing was to

be held before the Katowice Regional Court in the civil proceedings

concerning her compensation claim. It was adjourned as the Court, in

order to proceed further, had to have access to the case-file of the

administrative proceedings, terminated by the administrative decision

of 9 December 1994.

The applicant then states that the following occurred:

In a letter of 6 February 1995 the applicant asked the Municipal

Board of Appeal when her appeal had been forwarded to the Supreme

Administrative Court.

On 22 February 1995 the Board informed the applicant that the

case-file had been sent to the Katowice Regional Court in connection

with the related civil proceedings against the Bukowno municipality,

pending before that Court. Accordingly, her appeal could not have been

forwarded to the Supreme Administrative Court.

On 27 February 1995 the applicant complained to the Prime

Minister that the Municipal Board of Appeal had failed to transmit her

appeal to the Supreme Administrative Court and that it had wrongly

informed her that the case-file had been transmitted to the Katowice

Regional Court.

Subsequently, the applicant complained to the Supreme

Administrative Court about the delay in forwarding her appeal.

On 6 March 1995 the Court transmitted this letter to the Municipal

Board of Appeal.

On 9 March 1995 the Katowice Regional Court informed the

applicant that it had recently instructed the Regional Office to submit

the case-file of the administrative proceedings to that Court ("S*d

Wojewódzki ... informuje, ze obecnie S*d zobowi*zal Urz*d Wojewódzki

w Katowicach do udzielenia akt post*powania administracyjnego

zwi*zanego z przedmiotowym post*powaniem.")

As regards the subsequent developments the parties agree that the

following occurred:

On 29 April 1995 the Katowice Regional Court ordered that the

administrative case-file should be sent back to the Municipal Board.

On 25 May 1995 the Board transmitted the case-file and the appeal

against the decision of 9 December 1994 to the Supreme Administrative

Court.

In reply to the applicant's query, on 30 July 1995 the registry

of the Supreme Administrative Court informed her that, due to a heavy

case-load, the Court would hold a hearing in her case probably in

October 1996.

On 7 October 1996, after one hearing, the Court dismissed the

applicant's appeal, considering that after the 1990 administration

reform doubts had subsisted as to the division of jurisdiction between

the municipal administration created thereby and the government

administration as regards claims for compensation arising out of

expropriation. These doubts had been solved by the concordant

interpretation of relevant laws in administrative practice to the

effect that it was the government administration which was competent

in this domain. Consequently, the Board of Appeal had not been

competent to pronounce its decision of 8 November 1991 as it concerned

issues reserved for the jurisdiction of the government administration.

II.

On 27 January 1994 the Bukowno Municipal Council took a

resolution by which local owners of forests were exempted from an

obligation to pay forest taxes, the value of the forests having

significantly diminished due to serious pollution.

The applicant filed a complaint about the inactivity of the local

council in that it had failed to impose the forest tax on her.

On 11 May 1995 the Supreme Administrative Court rejected the

appeal, considering that no appeal lay against the non-imposition of

the forest tax.

On 30 August 1995 the Minister of Justice refused to lodge an

extraordinary appeal against this judgment, considering that it was in

accordance with the law.

Relevant domestic law

Article 200 of the Code of Administrative Procedure provided at

the relevant time that against an administrative decision an appeal can

be lodged with the Supreme Administrative Court. This appeal should

be submitted to the administrative authority which pronounced the

decision. This authority is obliged to transmit the appeal with the

case-file to the Supreme Administrative Court within thirty days of its

receipt.

COMPLAINTS

The applicant complains that the case-file was not transmitted

to the Supreme Administrative Court on time and about the delay in the

proceedings.

The applicant further complains that the non-imposition of the

forest tax deprives her of an opportunity to prove that she is an owner

of the land concerned.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 August 1994 and registered

on 18 August 1995.

On 17 January 1997 the Commission decided to communicate the

applicant's complaint concerning the length of the proceedings to the

respondent Government.

The Government's written observations were submitted on 6 May

1997, after an extension of the time-limit fixed for that purpose.

The applicant replied on 23 June 1997.

THE LAW

The applicant complains that the case-file was not transmitted

to the Supreme Administrative Court on time and about the delay in the

proceedings.

Article 6 para. 1 (Art. 6-1) of the Convention in its

relevant part reads:

"1. In the determination of his civil rights and

obligations ... everyone is entitled to a fair and public

hearing within a reasonable time by (a)... tribunal..."

The Government first submit that the Board received the request

from the Katowice Regional Court to have the case-file transmitted to

that court within the time-limit of thirty days provided for in Article

200 of the Code of Administrative Procedure. The Board could not,

therefore, transmit it together with the applicant's appeal to the

Supreme Administrative Court. The Board transmitted the file to the

Regional Court with no delay. The Regional Court sent the file back

as soon as it had examined the relevant documents, i.e. on 10 May 1995.

Subsequently the Board transmitted the file to the Supreme

Administrative Court on 25 May 1995. The Board had thereby failed to

observe the time-limit provided for by Article 200 of the Code of

Administrative Procedure by two weeks only.

The Government further emphasise that this time-limit is

a recommendation only and is not binding on the organs concerned.

The Government further state that the period between 16 December

1994, i.e. the date on which the applicant lodged her appeal and

7 October 1996, the date of the Supreme Administrative Court's final

judgment, cannot be considered as not being in compliance with

Article 6 (Art. 6) of the Convention.

The Government submit that the applicant contributed to the

prolongation of the administrative proceedings as she submitted three

different compensation claims. Moreover, the fact that she lodged the

action with the civil court meant that the case-file had to be

transferred several times between various organs. Given that an

administrative decision may be one of a number of important elements

to be taken into consideration in the court proceedings concerning

a compensation claim, the applicant's decision to lodge the civil

action should be regarded as at least unjustified if not harmful.

The applicant first contests the Government's submission to the

effect that she lodged three different claims for compensation in the

administrative proceedings. She emphasises that the Government did not

submit any details to substantiate this.

The applicant further submits that the Government's argument that

she contributed to the prolongation of the administrative proceedings

by lodging the civil action with the court is ill-founded. On the

contrary, it was the administrative authorities that instituted the

proceedings which subsequently led to the decision of 8 November 1991

being set aside. The civil proceedings for compensation, instituted

by the applicant in August 1993, were then already pending before the

Katowice Regional Court.

The applicant further disagrees with the Government's submissions

according to which no delay occurred in the administrative proceedings.

She lodged her appeal against the decision of 9 December 1994

on 16 December and it should have been promptly transmitted to the

Supreme Administrative Court. However, this was done only on 25 May

1995, after her numerous interventions. The Board's explanation that

the case-file had been transferred to the Katowice Regional Court was

untrue as shown by the fact that on 16 January 1995 the hearing was

adjourned as the case-file had not been submitted to the Court. The

Board should have transferred her appeal to the Court in December 1994,

but it failed to do so.

The applicant further submits that the Supreme Administrative

Court dealt with her case only in October 1996, i.e. after one year and

four months of inactivity.

The Commission notes that the proceedings in question lasted from

16 December 1994 to 7 October 1996,i.e. one year, nine months and

twenty-one days.

The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and with the help of the following criteria:

the complexity of the case, the conduct of the parties and the conduct

of the authorities dealing with the case (Eur. Court HR, Vernillo v.

Italy judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

The Commission observes that the case was not complex as it was

only the competence of the Municipal Board of Appeal to quash the

original decision which was to be examined by the Supreme

Administrative Court.

As regards the conduct of the authorities, the Commission first

observes that the relevant provisions of the Code of Administrative

Procedure oblige the administrative authority to transmit the case-

file, together with an appeal against a final administrative decision,

to the Supreme Administrative Court within thirty days. The Government

submit that the Board could not have done so as "in January 1995", i.e

within that time-limit, it received the request from the civil court

for the file to be transferred to it. The Board, according to the

Government's submission, complied with this request with no delay. In

the Commission's opinion, this submission does not appear to be

correct. Firstly, the Government have failed to indicate the exact

date on which the court's request was submitted to the Board.

Secondly, the hearing before that court on 16 January 1995, i.e. on the

last day of the thirty-days time-limit for the transfer of the case to

the Administrative Court, was adjourned because the Regional Court

needed access to the administrative case-file in order to proceed

further. Thirdly, it cannot even be assumed that the Board had sent

the file to the Regional Court before 16 January 1995, but it had not

reached the court by that date - which assumption would be compatible

with the Government's submission referred to above - as the court

stated in its letter to the applicant of 9 March 1995, that the court

has "now" obliged the Board to submit the case-file. Thus, the file

was not with the Regional Court even at that later date. Consequently,

the Commission is forced to conclude that the Board did not comply with

the statutory time-limit of thirty days for the transmission of the

file to the Supreme Administrative Court.

Furthermore, the Commission notes that it transpires from the

Regional Court's letter of 9 March 1995 that the Board had apparently

misinformed the applicant in its letter of 22 February 1995, in which

it said that the case-file had been transmitted to the Regional Court.

This must be so as on 9 March 1995 the file had not yet reached the

court. The Government do not present any convincing arguments to the

contrary.

As regards the proceedings before the Supreme Administrative

Court, the Board sent the case-file to that court on 25 May 1995.

In July 1995 the applicant was informed that her case would be dealt

with in October 1996. The judgment was indeed pronounced on 7 October

1996 after one hearing.

As regards the applicant's conduct, the Commission takes note of

the Government's submission that in the administrative proceedings she

submitted three different compensation claims. However, the Government

have failed to substantiate their submission. Nonetheless, there were

separate civil proceedings instituted by the applicant, related to the

administrative proceedings, pending before the civil court.

As knowledge of the file was necessary for the court to rule in the

civil case, the transfers of the case-file between the administrative

authorities and the court were necessary and they considerably

prolonged the administrative proceedings.

Assessing the facts of the case as a whole, and taking into

account in particular the fact that the overall length of the

proceedings was not significant, the Commission considers that the

proceedings did not exceed a "reasonable time" within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention. It follows that this

complaint is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant further complains that the non-imposition of the

forest tax deprives her of an opportunity to prove that she is an owner

of the land concerned.

The Commission examined this complaint under Article 1 of

Protocol No. 1 (P1-1) to the Convention which reads:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject

to the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it

deems necessary to control the use of property in

accordance with the general interest or to secure the

payment of taxes or other contributions or penalties."

The Commission observes that in the present case the applicant

was exempted from an obligation to pay forest tax as the value of the

local forests had seriously diminished. The Commission considers that

the non-imposition of the tax cannot, by its very nature, be considered

as an infringement of the applicant's right to peaceful enjoyment of

property within the meaning of Article 1 of Protocol No. 1 (P1-1) of

the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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HOLISZ v. POLAND

HOLISZ v. POLAND

LEXI