FOURTH SECTION

DECISION

Application no . 47663/11 Zbigniew KASPRZYKOWSKI against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 13 January 2015 as a Chamber composed of:

Guido Raimondi , President, Päivi Hirvelä , George Nicolaou , Ledi Bianku , Zdravka Kalaydjieva , Krzysztof Wojtyczek , Faris Vehabović , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 24 July 2011 ,

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

1. The applicant, Mr Zbigniew Kasprzykowski , is a Polish national, who was born in 1944 and lives in Rybna .

2. The Polish Government (“the Government”) were represented by their Agent Ms J. Chrzanowska of the Ministry of Foreign Affairs .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The background of the case

4. On 17 October 1946 a property ‘ Wesołówka ’ owned by the applicant ’ s mother was taken over by the State pursuant to provisions of the Decree of the Polish Committee of National Liberation on the A grarian Reform of 6 September 1944 ( Dekret PKWN o przeprowadzeniu reformy rolnej ; the 1944 Decree ). No decision was delivered at this stage of the proceedings.

5. On 23 October 1948 the Board of the Warsaw Regional National Council ( Prezydium Warszawskiej Wojewódzkiej Rady Narodowej ), acting on a motion of the applicant ’ s mother to exclude her property from the operation of the agricultural reform, decided that the property fell within the scope of the reform.

6. In July 1957 the Board of the Warsaw National Council quashed its decision ( orzeczenie ) of 23 October 1948 and decided that the property did not fall wit hin the scope of the decree. This new decision had not been signed or stamped and was later referred to as a ‘ draft decision ’ by the domestic courts and administrative authorities.

7. The applicant ’ s mother sought restitution of her property until her death in Septem ber 1975.

8. Over the years the property was divided into smaller plots. Some of the plots were acquired by private individuals and the Nowe Miasto Commune , others remained the property of the State Treasury.

2. Proceedings for the annulmen t of the expropriation decision

9. On 1 June 2007 the applicant lodged a motion to have the decision of 23 October 1948 annulled .

10. On 31 October 2007 the Mazowiecki Governor ( Wojewoda Mazowiecki ) decided to refer the case to the Minister of Agriculture and Countryside Development ( Minister Rolnictwa i Rozwoju Wsi ) . He found, after examining the case file of the previous proceedings, that the latter authority was the competent authority to examine the applicant ’ s motion .

11. On 29 January 2008 the applicant lodged a complaint with the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny w Warszawie ) about the inactivity on the part of the Minister of Agriculture and Countryside Development.

12. On 14 February 2008 the Minister of Agriculture and Countryside Development replied to the applicant ’ s complaint. The Minister explained that on 4 February 2008 the applicant had been requested to redefine his motion of 1 June 2007 and to provide documents certifying that he was an heir of Ms. B.K. ’ s property rights. He considered that this information was essential to proceed with the case. The Minister further informed the applicant that the time-limit to handle his case had been prolonged until the third quarter of 2008.

13. On 10 April 2008 the Warsaw Regional Administrative Court dismissed the applicant ’ s inactivity complaint. It appears that t he applicant failed to request that written grounds for the judgment be prepared . He also did not appeal against this judgment.

14. On 6 March 2012 the Minister of Agriculture and Countryside Development declared the decision of 23 October 1948 null and void ( stwierdził nieważność orzeczenia ).

15. T he applicant and the Płońsk Forestry Management ( Nadle ś nictwo P ł o ń sk ) requested a re-examination of the case. The applicant argued that declaring t he decision of 23 October 1948 null and void resulted in him becoming an owner of the property in question. He thus considered that the decis ion should not have been declared null and void as regards the part of the property which had been acquired in good faith by private individuals. According to the applicant, the part of the decision relating to the private plots of land should have been declared as issued in breach of law ( wydana z naruszeniem prawa ) which would enable him to cla im compensation from the State.

16. On 8 May 2012 the Minister of Agriculture and Countryside Development upheld his previous decision of 6 March 2012. The Minister argued that declaring the decision of 23 October 1948 null and void had not automatically resulted in the applicant becoming the owner of the property Wesołówka . In the Min ister ’ s view, a refusal to declare null and void the decision would have adversely affected the applicant ’ s interests since only the annulment of the entire decision would enable the applicant to contest other decisions delivered as a result of the quashed decision.

17. The applicant challenged the above decision before the Warsaw Regional Administrative Court which on 19 March 2013 gave judgment and dismissed the applicant ’ s complaint.

18. The State Treasury represented, statio fisci , by the State Forests National Forest Holding ( Pa Å„ stwowe Gospodarstwo Le Å› ne Lasy Pa Å„ stwowe ) lodged a cassation appeal with the Supreme Administrative Court ( Naczelny S Ä… d Administr acyjny ).

19. T he proceedings are pending before the Supreme Administrative Court .

B. Relevant domestic law and practice

1. Inactivity of the administrative authorities

20. The relevant domestic law and practice concerning remedies for the excessive length of administrative proceedings, in particular the applicable provisions of the Code of Administrative Procedure and the 2002 Act on Proceedings before Administrative Courts, are set out in the Court ’ s judgment in the case of Grabiński v. Poland no. 43702/02, §§ 60-65, 17 October 2006.

21 . On 3 December 2010 Article 37 of the Code of Administrative Proceedings and Article 3 of the Law on Proceedings before Administrative Courts were amended (amendments entered into force on 11 April 2011).

22. Following the amendment to Article 37 § 1 a party to administrative proceedings may currently file a complaint not only about an authority ’ s failure to handle the case within the time-limits referred to in Articles 35 and 36, but it may also complain about undue delay in the conduct of the proceedings ( przewlekłe prowadzenie postępowania ).

23 . Section 3 § 2 o f the Law of 30 August 2002 on Proceedings before Administrative C ourts, as amended on 11 April 2011, contains provisions allowing a party to administrative proceedings to lodge a complaint with an administrative court, alleging inactivity of the authority obliged to issue an administrative decision or undue delay in the conduct of the proceedings. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.

2. Remedies for the excessive length of judicial proceedings

24 . The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are presented in the Court ’ s decisions in the cases of CharzyÅ„ski v. Poland ( dec. ), no. 15212/03, §§ 12-23, ECHR 2005 ‑ V and Ratajczyk v. Poland ( dec. ), no. 11215/02, ECHR 2005 ‑ VIII, and its judgment in the case of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005-V.

COMPLAINT

25. The applicant complained under Article 6 § 1 of the Convention about the length of administrative proceedings.

THE LAW

26. The applicant complained under Article 6 § 1 of the Convention that the length of the administrative proceedings in his case had exceeded the reasonable time requirement.

27. Article 6 § 1 of the Convention reads in the relevant parts 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. The parties ’ submissions

28. The Government maintained that the applicant had failed to exhaust domestic remedies, as required under Article 35 § 1 of the Convention.

That Article , in its relevant part, provides :

“ The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ... . “

29. As to the specific basis of their preliminary objection, the Government stated that the applicant had failed to pursue all the available remedies designed to counteract the inactivity of the administrative authorities.

30. They submitted that, although the proceedings in the applicant ’ s case had been pending since June 2007 until now, he had only lodged one complaint about the inactivity of the Minister of Agricult ure and Countryside Development, in January 2008.

31. They further referred to the amendments to the Code of Administrative Proceedings and the Law on Proceedings before Administrative Courts , which had entered into force on 11 April 2011 (see also paragraphs 22-24 above). They submitted that following these amendments it was open to the applicant to lodge a complaint about the excessive length of proceedings before the administrative authority. They argued that he had failed to avail himself of this new and more effective remedy.

32. The Government also maintained that the applicant had failed to take advantage of the civil remedies to claim compensation for an excessive length of administrative proceedings. They relied on Articles 417 and 417 1 § 3 of the Civil Code. To this end, they referred to the judgment of the Kraków Court of Appeal given in another case on 20 April 2009 in which the court awarded 70,000 Polish zlotys (PLN) of compensation for non ‑ pecuniary damage resulting from the authorities ’ inactivity in the proceedings.

33. The applicant contested these arguments. He submitted that he had availed himself of the available remedy as on 29 January 2008 he had lodged a complaint about the inactivity on the part of the Minister of Agriculture and Countryside Development . Nevertheless, the proceedings in his case were still pending.

B. The Court ’ s assessment

34. The Court reiterates that the purpose of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention is to afford Contracting States an opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. In that way Article 35 § 1 obliges the applicant to try available remedies that relate to the breach alleged by him (see, among other authorities, Selmouni v. France [GC], §§ 74-76, ECHR 1999-VII; Bukowski v. Poland ( dec. ), no. 38665/97, 11 June 2002).

35. The Court has already held that in certain situations the applicants who have already sought redress before the competent domestic authority in respect of their complaint under Article 6 § 1 of the Convention about excessive length of proceedings may be required to have recourse again to that remedy irrespective of whether or not they have filed an application under Article 34 of the Convention in the meantime. Such is the case, for example, when an applicant considers excessively long the period which lapsed after the first finding of the competent domestic authority and, in particular, when the first decision of the domestic authority is consistent with the Convention principles. The same is true of a situation where, following the use of the domestic remedy, the case was transf erred to a different authority and the applicant considers that the proceedings continue to be marked by unreasonable delay (see Becová v. Slovakia ( dec. ), no. 3788/06, 18 September 2007, with further references).

36. On the other hand, repeated recourse to the domestic remedy is not required where the effects produced by the decision of the competent authority do not satisfy the criteria applied by the Court. Such is the case, for example, where the domestic authority, unlike the Court, concluded that the length of the proceedings in issue was not excessive; or where a low amount of just satisfaction was granted; or where the remedy in issue was incapable of providing redress in respect of the overall length of the proceedings complained of (ibid.).

37. I n a number of cases against Poland the Court has examined the administrative remedies designed to accelerate the process of obtaining an administrative decision and has held that it was necessary to have recourse to th em in order to comply with the requirement of exhaust ion of domestic remedies (see Bukowski v. Poland , cited above, Mazurek v. Poland ( dec ), no. 57464/00, 7 September 2004 and Kołodziej v. Poland ( dec ), no . 47995/99, 18 October 2005).

38. Turning to the facts of the present case, the Court notes that the proceedings in question commenced on 1 June 2007 and have not yet ended. The period to be taken into consideration has thus lasted so far over seven years for three levels of jurisdiction.

39. In the course of the proceedings in issue the applicant lodged one complaint about the inactivity of the administrative authority on 29 January 2008 (see paragraph 11 above). This complaint was dismissed by the Wars aw Regional Administrative Court o n 10 April 2008 . The domestic court did not prepare written grounds for this judgment as t he applicant had failed to request f or them (see paragraph 13 above). The Court cannot but note that it was also open to the applicant to appeal against this judgment. However, the Government have not pleaded the applica nt ’ s failure to exhaust domestic remedies on this ground and it is not for the Court to consider this matter of its own motion (see, mutatis mutandis , Mooren v. Germany [GC], no. 11364/03 , § § 57-59 , 9 July 2009 and Rydz v. Poland , no. 13167/02, § 72 , 18 December 2007 ).

40. At the time of the judgment of the Wars aw Regional Administrative Court the proceedings had lasted for just over ten months at one level of jurisdiction. They concerned the applicant ’ s request for annulment of the decision of 1948. The case was first pending for five months before the Mazowiecki Governor. On 31 October 2007 , after examining the relevant case-files, the Governor decided to refer the case to the Minister of Agriculture and Countryside Development . On 4 February 2008 the Minister requested the applicant to redefine his motion of 1 June 2007 and to provide some further documents (see paragraphs 9-12 above).

41. Having regard to the above circumstances, the Court concurs with the conclusion reached by the Warsaw Regional Administrative Court that in the instant case there were no unjustified delays at the time of the domestic court ’ s judgment of 10 April 2008. The finding of the domestic court was therefore in conformity with the principles embodied in the Court ’ s case-law concerning the right to a hearing within a reasonable time (compare and contrast, Wolf v. Poland , nos. 15667/03 and 2929/04, § 62 , 16 January 2007 ) . The Court therefore considers that the applicant used the domestic remedy when there were no unjustified delays in the processing of his case and that, at this stage, there was no need to accelerate the proceedings.

42. It is also relevant in this connection that the applicant introduced his application with the Court on 24 July 2011, that is over three years after the decision of the domestic court. Even though during this whole period the proceedings were continuously pending before the first-instance authority, he failed to make any further attempts to urge the authority to issue a decision in his case. The first-instance decision on the merits was in fact issued only on 6 March 2012 (see paragraph 14 above). The present case should thus be distinguished from those of the previously examined cases against Poland in which the Court considered that a complaint about the inactivity did not offer the applicants reasonable prospects of success as the total length of proceedings resulted from a repeated pattern of issuing decisions flawed with various legal shortcomings ( see Trzaskalska v. Poland , no. 34469/05 , § 42, 1 December 2009 , with further references ).

Moreover, as pointed out by the Government, after the amendments to domestic law which ente red into force on 11 April 2011 it became open to the applicant to challenge not only the inactivity of the domestic authority but also the excessive length of the administrative proceedings in his case (see paragraphs 21-23 and 31 above) .

43. Having regard to the above , the Court considers that, in the particular circumstances of the present case, the applicant failed to use the remedies available under domestic law in a manner which would allow the domestic authorities to prevent or put right the alleged violation of his right to a hearing within a reasonable time and that he should have put the issue of the length of the proceedings again before the domestic authorities (see , mutatis mutandis , Becová v. Slovakia , cited above) . Accordingly, the Government ’ s preliminary objection should be allowed.

In the light of the foregoing, the Court finds it unnecessary to deal with the Government ’ s argument that the applicant should have lodged an action for damages under the Civil Code .

44. It follows that the applicant ’ s complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 5 February 2015 .

Fatoş Aracı Guido Raimondi Deputy Registrar President