FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42753/05 by Janina ŻAK against Poland

The European Court of Human Rights (Fourth Section), sitting on 8 December 2009 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , David Thór Björgvinsson , Päivi Hirvelä , Mihai Poalelungi , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 21 November 2005,

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, Ms Janina Żak , is a Polish national who was born in 1923 and lives in Częstochowa . With the leave of the President of the Section (Rule 36 of the Rules of Court) s he was represented before the Court by her son Mr Z. Żak . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

1. The background

The applicant ’ s father, Mr Artur Meklemburg, was the owner of a property located on the corner of Sosnowa and Chmielna streets in Warsaw . The applicant and her son are the only heirs of Mr Meklemburg.

By virtue of the Decree of 26 October 1945 on the Owne rship and Use of Land in Warsaw , ownership of all private land was transferred to the City of Warsaw . The decree gave the former owners the opportunity to obtain a perpetual lease (temporary ownership after 1946 and currently perpetual use ) of the nationalised plot of land on request.

On 12 March 2001 the Warsaw Municipality ( Gmina Warszawa ) signed before a public notary a contract with the Złote Tarasy limited liability company by virtue of which the ownership of a plot of land in the centre of Warsaw was transferred to the above company as the Municipality ’ s contribution to its seed capital ( aport do kapitalu zakładowego spół ki ). The land in question included the plot previously owned by the applicant ’ s father. The Złote Tarasy company constructed a shopping centre on it.

The Municipality acknowledged in the contract that there had been “reprivatisation claims” made in respect of the land in question and that proceedings to ascertain whether these claims were justified were pending. The Municipality further stated that it had the financial means necessary to cover these claims.

2. The friendly settlement

The Municipality conducted negotiations with the applicant, her sister and four other heirs of former owners of the land in question.

On 24 June 2002 the representatives of the Warsaw Municipality signed before a public notary a friendly settlement agreement with four heirs of the owners of the land. They accepted the compensation proposed by the Municipality and agreed to waive any rights in respect of ownership or right to perpetual use of the land in question. The compensation proposed by the Municipality had been based on the value of the property according to an assessment of 25 September 1999. The applicant and her sister decided not to sign the agreement because they contested the amount of compensation. The agreement in its relevant part reads as follows:

“the Warsaw Municipality agrees to pay [to four heirs of the former owners of the land] compensation for pecuniary damage ( odszkodowanie ) for not granting them the right of perpetual use of the plot of land described above, to which they were entitled under section 7 § 1 and 2 of the 1945 Decree, and the ownership of which was transferred by the Municipality as a contribution to the Złote Tarasy limited liability company ...”

3. The proceedings for annulment of the contract of 12 March 2001

On 22 July 2002 the applicant lodged a civil claim with the Warsaw Regional Court ( Sąd Okręgowy ) for annulment of the contract of 12 March 2001 by which the land in question had been transferred to the Złote Tarasy limited liability company. They claimed that the contract had breached their right to be granted perpetual use of the land or their pre-emptive right thereto.

On 10 September 2003 the court dismissed their action, finding that the ownership of the property had been transferred in the form of the Municipality ’ s contribution to the seed capital of the limited liability company. According to the court such a contribution could not be considered as a sale of the property within the meaning of section 34 of the Law on Land Administration, thus the contract in question remained valid.

An appeal by the applicant was dismissed on 23 November 2004 by the Warsaw Court of Appeal ( SÄ…d Apelacyjny ). The court agreed with the opinion that the form in which the Municipality had transferred the ownership of the land had not been a sale within the meaning of the domestic law. However, even if it was a sale and the transfer of the ownership had been carried out in breach of section 34 of the Law, in any event it had not rendered the contract of 12 March 2001 null and void. The only consequence of a breach of these provisions was a compensatory liability on the part of the Municipality.

On 20 May 2005 the Supreme Court refused to hear a cassation appeal lodged by the applicant.

4. Civil proceedings for compensation

On 24 November 2004 the applicant lodged a civil claim against the City of Warsaw for compensation for damage caused by the decision of 1975 dismissing her father ’ s claim to be granted perpetual use of the land and the contract of 12 March 2001.

On 30 May 2006 the Warsaw Regional Court gave a preliminary judgment ( wyrok wstę pny ) in which it allowed the claim. It considered that the issue of the applicant ’ s claim to be granted perpetual use of the land should have been examined before the Municipality had transferred the ownership of the property to the company. The Municipality thus acted illegally, as it had known that the applicant ’ s claims were pending.

The Warsaw Municipality lodged an appeal against the judgment.

On 26 April 2007 the Warsaw Court of Appeal allowed the appeal and dismissed the applicant ’ s claim. The court considered that until the right to perpetual use of the land had finally been determined by the administrative authority the heirs of the former owners had no right to the property in question. Only a final administrative decision could decide whether or not they had any claim to the property. Thus the Municipality could legally transfer the ownership of the land in question. Moreover, the proceedings concerning the request to be granted perpetual use of the land had been pending and as a result the applicant might still obtain perpetual use of another plot of land or compensation. The applicant was also ordered to reimburse the costs of the proceedings to the City of Warsaw in the amount of 112,000 Polish zlotys (PLN).

The applicant lodged a cassation appeal against the judgment but on 3 April 2008 the Supreme Court refused to hear it.

5. Administrative proceedings for perpetual use of land

On 19 October 1948, in accordance with the time-limit provided in section 7 of the 1946 Decree, the applicant ’ s father lodged an application in which he sought to be granted the right of temporary ownership of the land.

On 27 January 1975 the Mayor of Warsaw dismissed the application .

On 2 September 1999 the applicant lodged a request for the above decision to be declared null and void.

On 5 April 2000 the Warsaw Self-Government Board of Appeal ( Samorz ądowe Kolegium Odwoł awcze ) decided to stay the proceedings. An appeal by the applicant was dismissed on 27 December 2000.

On 19 March 2001 the Self-Government Board of Appeal decided to resume the proceedings.

On 21 September 2001 the Warsaw Self-Government Board of Appeal found the above decision null and void.

Subsequently, the applicant intervened on many occasions with the President of Warsaw and complained to a local Member of Parliament that the administrative authority was taking no action.

On 20 July 2007 the President of Warsaw dismissed the applicant ’ s request for perpetual use of the land. It established that the ownership of the property in question had been transferred to the Złote Tarasy limited liability company, thus the applicant could not be granted the right of perpetual use of it.

The applicant appealed.

On 14 January 2008 the Warsaw Self-Government Board of Appeal upheld the impugned decision.

On 20 August 2008 the Warsaw Regional Administrative Court quashed the decision and remitted the case. It considered that the administrative authorities should have examined whether the applicant had fulfilled the legal requirements to be granted the right of perpetual use. The issue that the ownership of the land had been transferred was of a secondary nature.

The parties appealed against the judgment and on 23 September 2008 the Supreme Administrative Court upheld the decision.

The proceedings are pending before the President of Warsaw.

B. Relevant domestic law

Under Article 35 of the Code of Administrative Procedure (“the Code”) of 1960 an administrative authority should give a decision on the merits of a case within two months. If those time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time ‑ limit.

Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for handling th e case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to p revent future such delays .

On 1 October 1995, the Law of 11 May 1995 on the Supreme Administrative Cour t (“the 1995 Act”) entered into force. U nder section 17 of the 1995 Act the Supreme Administrative Court was competent to examine complaint s against inactivity on the part of an authority.

Section 26 of the Act provide d :

“When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, d eclare, or recognise a right or obligation provided for by law.”

Section 34 of the 1995 Act set out the r equirement of the exhaustion of available remedies before lodging a complaint with th e Supreme Administrative Court . Accordingly, a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a high er level, pursuant to the above ‑ mentioned Article 37 of the Code of Administrative Procedure.

Pursuant to section 30 of the 1995 Act, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity was legally binding on the authori ty concerned. If the authority di d not compl y with the decision, the court could , under section 31, impose a fine on it and might itself give a ruling on the right or obligation in question .

The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Proceedings before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004. Section 3 § 2 of the 2002 Act contains provisions analogous to section 17 of the 1995 Act . It provides that administrative courts examine complaint s of inacti vity on the part of authorities obliged to issue an administrative decision or to carry out enforcement proceedings. Under section 149, if a complaint is well ‑ founded , an administrative court shall oblige the authority concerned to issue a decision, to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law .

COMPLAINTS

1. The applicant complained that the proceedings in which she sought perpetual use of the land were protracted.

2. The applicant complained under Article 1 of Protocol No. 1 to the Convention that her property rights have been breached. She submitted that the authorities had disposed of property which had belonged to her late father without granting her compensation. She submits that the authorities accepted an interpretation of the domestic law according to which the ownership of the land which had belonged to her father had been sold by the City without respecting her right to claim pre-emption and perpetual use.

THE LAW

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

The Government maintain ed 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 ...”

As to the specific basis of their preliminary objection, the Government state d that the applicant ha d failed to pursue remedies desi gned to counteract the inactivity of the administrative authorities.

They submitted that although the appli cant had complained that the President of Warsaw had taken no action, she had submitted it to the President and not to the higher authority as provided by law. Secondly, a complaint to a Member of Parliament could not be considered an effective domestic remedy to counteract inactivity on the part of an administrative authority. The Government underlined that during the entire period of the proceedings the applicant at no time made use of the remedy at her disposal and had never lodged a complaint with a competent authority about any inactivity on the part of the administrative body.

The applicant pointed out that she had made several complaints to various institutions including the President of Warsaw . She maintained that a complaint to a higher authority was not an effective remedy as it had not been successful in another set of administrative proceedings in which she had been involved.

The Court reiterates that the purpo se of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford Contracting States the opportunity to prevent or put 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 av ailable remedies that relate to the breach alleged by hi m (see, among other authorities, Bukowski v. Poland (dec.), no. 38665/97, 11 June 2002).

The Court has already examined the combination of the administrative remedies in Poland which are designed to accelerate the process of obtaining an administrative decision (see Bukowski , cited above; Mazurek v. Poland (dec), no. 57464/00, 7 September 2004; and Ko Å‚odziej v. Poland (dec), no 47995/99, 18 October 2005). Accordingly, in the present case the Court observes that it was open to the applicant to appeal to a higher authority under Article 37 of the Code of Administrative Procedure when alleging inactivity on the part of an administrative body dealing with the case. In cases where an authority continuously fails to act, an applicant has the opportunity to obtain, through the expedited procedure laid down in section 26 of the 1995 Act, a ruling on his rights or obligations directly from the Supreme Administrative Court . Those legal avenues were open to the applicant.

In the case under consideration the proceedings commenced in 1999 and are still pending. According to the information submitted by the parties, the proceedings were stayed between April 2000 and March 2001; however, subsequently the President of Warsaw took no action until 20 July 2007. Nevertheless, the applicant did not make any attempt to urge that authority to issue a dec i sion within the time-limits provided for in Articles 35 and 36 of the Code.

The complaints made by the applicant to the President of Warsaw during this period in respect of inactivity on the part of his office or to an M.P. cannot be considered as effective or lodged in accordance with the requirement of domestic law.

Accordingly, the Court concludes that the Government ’ s preliminary objection should be allowed (see Oledzki and Oledzka v Poland (dec), no. 13715 / 03 , 4 January 2008, and Kaniecki v Poland (dec), no. 70596/01, 23 September 2008) .

It follows that the complaint is ina dmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

2. The applicant further complained that h er right to the peaceful enjoyment of h er possessions within the meaning of Article 1 of Protocol No. 1 had been infringed.

Article 1 of Protocol No. 1 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 a nd 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 Court observes that the applicant ’ s father was deprived of his possession following the 1945 Decree. It notes that the applicant rejected the friendly-settlement agreement by which the Warsaw Municipality agreed to grant compensation to some former owners of the land on which the Złote Tarasy shopping centre was constructed. Her subsequent attempts to challenge the contract by which the land in question had been transferred to the Złote Tarasy limited liability company, and to obtain compensation, failed as a result of the Supreme Court ’ s judgments of 20 May 2005 and 3 April 2008. Therefore, i n so far as it can be understood that the applicant complained about the outcome of these two sets of proceedings the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In partic ular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedom s protected by the Convention.

Indeed the authorities reiterated on many occasions that until the right to perpetual use of the land was finally determined by the administrative authority, the applicant, as the heir of the former owners, had no right to the property in question. The applicant requested to be granted perpetual use of the land; however, the administrative proceedings to determine the applicant ’ s claims are currently pending.

Therefore, in so far as the applicant relies on Article 1 of Protocol No. 1 to the Convention, the Court considers that it would be premature to take a position on the substance of this complaint. In so far as the applicant complains about the length of those proceedings, the Court considers that the Article 1 of Protocol No. 1 complaint does not give rise to any separate issue (see, for example, Zanghì v. Italy, judgment of 19 February 1991, Series A no. 19 4 -C, § 23 ; Szenk v. Poland , no. 67979/01, § 63 , 22 March 2005 ; Beller v. Poland , no. 51837/99, § 74, 1 February 2005 ).

It follows that this part of the application 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 the application inadmissible.

Lawrence Early Nicolas Bratza Registrar              President