THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52462/99 by Irena SZABLI Ń SKA against Poland

The European Court of Human Rights (Third Section), sitting on 2 February 2006 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr C. Bîrsan , Mrs M. Tsatsa-Nikolovska , Mr L. Garlicki , Mrs R. Jaeger , Mr E. Myjer, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 11 January 1999 ,

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 Irena Szabliń ska , is a Polish national who was born in 1947 and lives in Łódź , Poland .

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

On 16 December 1991 , upon the applicant ’ s request, the Director of the Łódź District Office ( Urz ą d Rejonowy ) issued a decision and ordered division of the applicant ’ s property into a number of smaller plots, designated for construction purposes. By the same decision seven of these plots were expropriated and acquired by the Łódź municipality, for the purpose of road construction. The applicant did not appeal against this decision and consequently, it became final on 30 December 1991 .

On 2 February 1993 the Director of Łódź District Office determined the amount of compensation to be paid to the applicant for the expropriated plots at PLZ (old zlotys) 333,240,000. The applicant contested this decision and asked for a new expert opinion in order to re-assess the value of the plots.

In view of the new expert opinion, on 18 June 1993 the Director of Łódź District Office set the amount of compensation to be paid to the applicant at PLZ 745,590,000. The Łódź Municipal Board ( Zarz ą d Miasta ) lodged an appeal against this decision with the Governor of Łódź . On 30 July 1993 the Governor of Łódź upheld the contested decision. The Łódź Municipal Board appealed to the Supreme Administrative Court ( Naczelny Sąd Administracyjny ). On 31 May 1994 the Supreme Administrative Court quashed the contested decision. The court ordered that the amount of compensation to be paid to the applicant should be reconsidered by the second-instance authority.

On 31 August 1994 the Łódź Governor quashed the first-instance decision of 18 June 1993 and remitted the case to the first instance authority. On 21 November 1994 the Director of the Łódź District Office for the third time set the amount of applicant ’ s compensation, this time at PLZ 612,900,000. Both, the applicant and the Łódź Municipal Board appealed

On 30 March 1995 the Governor of Łódź ( Wojewoda Łó dzki ), acting of his own motion, considered that the expropriation decision of 16 December 1991 had been given in a flagrant breach of substantive provisions of administrative law. In the Governor ’ s opinion acquisition of lands for road construction by municipalities should have been done by way of a civil contract between the applicant and the municipality. Expropriation would only have been possible had the applicant refused to accept conditions of the proposed contract. However, due to the fact that some of the plots as created by the 1991 decision had already been sold by the applicant, the Governor refused to declare this decision null and void as it had already created irreversible legal consequences.

The applicant lodged an appeal against this decision. On 15 July 1996 the Minister of Land Administration and Housing ( Minister Gospodarki Przestrzennej i Budownictwa ) quashed Governor ’ s decision of 30 March 1995 and remitted the case.

On 9 September 1996 the Governor of Łódź stayed the compensation proceedings until termination of the proceedings concerning the validity and lawfulness of the expropriation decision of 16 December 1991 .

On 28 February 1997 the Governor of Łódź declared the decision of 16 December 1991 null and void in so far as it concerned expropriation of the plot no. 70/101, designated for broadening of an existing street. It was further stated that the plot no. 70/101 should be acquired again by the municipality by entering into a civil contract with the applicant or, in the absence of an agreement on the price, by a new expropriation decision, as provided for by the 1985 Land Administration and Expropriation Act.

The applicant appealed against this decision, submitting that as a result of this decision the plots sold to third parties would lose access to a public road, which they had had through the plot no. 70/101.

On 6 August 1997 the Director of the Office of Housing and Town Development ( Prezes Urz ę du Mieszkalnictwa i Rozwoju Miast ) quashed the contested decision and remitted the case to the Governor of Łódź for reconsideration.

On 2 September 1997 the applicant lodged an appeal with the Supreme Administrative Court against the decision of 6 August 1997 alleging that it was in breach of substantive administrative law. On 24 April 1998 the Supreme Administrative Court dismissed the applicant ’ s appeal, considering that the decision was given in compliance with the law. As a result of this decision, the Łódź municipality was to return the plot no. 70/101 to the applicant.

On 10 August 1998 the Governor of Łódź discontinued the proceedings in which the validity of the 1991 division and expropriation decision was examined. The case was subsequently transmitted to the Łódź Self-Government Board of Appeal ( Samorz ą dowe Kolegium Odwo ł awcze ).

On 6 November 1998 the Łódź Self-Government Board of Appeal declared the decision of 16 December 1991 null and void in so far as it concerned expropriation of the plot no. 70/101, finding that it had been issued in a breach of the 1985 Act on land administration and expropriation. The Board of Appeal refused to declare this decision null and void in its entirety, despite its legal flaws, because of the irreversible legal consequences that had ensued.

As a result of this decision the plot no. 70/101 was returned to the applicant.

On 27 April 1999 the Supreme Administrative Court dismissed the applicant ’ s appeal against the decision of 6 November 1998 . The court held that applicant had failed to comply with the formal requirements attached to this remedy, as she had not lodged a request to have the decision reconsidered by the Łódź Self-Government Board of Appeal. This decision is final.

COMPLAINTS

1. The applicant alleges that her right to peaceful enjoyment of her posessions was not respected contrary to Article 1 of Protocol No 1. In particular:

a) S he complains that she did not get any compensation for the six plots expropriated in 1991.

b) She further contends that she is required to provide access to a public road through the plot no 70/101 which was returned to her.

c) Lastly, she objects to the administrative decision to return to her the plot no . 70/101. In this respect she claims that she did not get any compensation for the fact that the municipality had been using the plot No. 70/101 for eight years.

2. The applicant also alleges under Article 6 of the Convention read together with Article 1 of Protocol No. 1 that the length of the administrative proceedings in her case was excessive.

THE LAW

1. The applicant complained that her right to peaceful enjoyment of her possessions had not been respected con trary to Article 1 of Protocol N o . 1, which reads as follows:

“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.”

a) The applicant complained that she had not received any compensation for the six plots expropriated in 1991.

The Government submitted that the applicant had failed to exhaust the domestic remedies as required by Article 35 of the Convention. They pointed to the fact that the applicant had failed to file a motion for reconsideration of the Łódź Self-Government Board of Appeal ’ s decision of 6 November 1998 . Consequently, her appeal against that decision had been rejected because of a procedural mistake. Moreover, following the Governor of Łódź decision of 9 September 1996 to stay the compensation proceedings, the applicant failed to apply for the proceedings to be resumed. In the Government ’ s opinion even if the applicant had lodged such a motion, her application should still have been rejected for non-exhaustion of domestic remedies. The Government submitted that according to the established case law of the Supreme Court an administrative decision awarding compensation is a writ of enforcement. Therefore, the applicant could have instituted enforcement proceedings, which she failed to do.

The applicant contested the Government ’ s submissions. She claimed that the Supreme Administrative Court ’ s decision of 24 April 1998 had been the final decision in her case.

The Court recalls that an applicant is required to make normal use of domestic remedies which are effective, sufficient and accessible (see, O ’ Reilly v. Ireland , n o. 24196/94, Commission decision of 22 January 19 96 , Decisions and Reports ( DR ) 84-B, p. 81 ). In the case of a number of remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance (see Airey v. Ireland judgment of 9 October 1979, Series A No. 32, p. 12, § 23).

The Court observes that in the present case the applicant did not have recourse to any of the remedies available to her. In particular, she had failed to appeal against the decision of 9 September 1996 to stay the compensation proceedings. She has further failed to lodge a motion for the proceedings to be resumed.

It follows that the applicant has not complied with the requirement under Article 35 § 1 of the Convention as to the exhaustion of domestic remedies, and, therefore, this part of the application must be rejected in accordance with Article 35 § 4 of the Convention

b) The applicant further asserted that she was required to provide access to a public road through the plot no. 70/101 which had been returned to her.

The Government alleged that the applicant had and still has various legal remedies at her disposal. However, she had neither made nor had tried to make any use of them. In particular, the applicant had failed to exhaust the available domestic remedies by lodging a request to have the decision of 6 November 1998 reconsidered by the Łódź Self-Government Board of Appeal.

The applicant argued that it is true that she did not lodge a request to have the decision of 6 November 1998 reconsidered. She claimed that she had only appealed to the Supreme Administrative Court out of curiosity as she had not believed in a favourable outcome.

The Court observes at the outset that Article 1 of Protocol No . 1 does not give rise to any positive obligation for the State to purchase the property from an individual. Furthermore, as it appears from the facts of the case, the applicant could have had recourse to a number of domestic remedies.

The Court reiterates that, pursuant to Article 35 § 1 of the Convention, it “may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.” The Court further recalls that domestic remedies cannot be said to be exhausted when an appeal has been rejected or not allowed because of a procedural mistake by the appellant ( see, Jabłoński v. Poland , no.33492/96, Commission decision of 16 April 1998 , unreported ) .

In this connection, the Court notes that the applicant ’ s appeal against the decision of the Łódź Self Government Board of Appeal of 6 November 1998 was rejected as s he had failed to comply with the procedural requirements attached to that remedy.

It follows that the applicant has not complied with the requirement under Article 35 § 1 of the Convention as to the exhaustion of domestic remedies, and, therefore, this part of the application must be rejected in accordance with Article 35 § 4 of the Convention

c) The applicant further complained about the authorities ’ decision to return to her the plot no. 70/101

The Government maintained that the institution of the proceedings concerning the validity of the 1991 decision had not in any way interfered with the applicant ’ s peaceful enjoyment of possessions within the meaning of Article 1 of Protocol No 1. They claimed that according to Article 160 of the Code of Administrative Procedure, as applicable at the material time, the applicant could have claimed compensation for the damage she sustained as a result of declaring the 1991 decision null and void. Lastly, they stressed that the applicant had not taken any legal steps to claim compensation for the invalidation of the division and expropriation decision undertaken contrary to the law.

The applicant disagreed with the Government ’ s submissions. She claimed that she could not have sold other plots created by the 1991 decision because as a result of the decision, to return to her plot n o. 70/101 they d id not have access to a public road. They had become as a result, worthless. She also stressed that she had not received any compensation for the fact that the municipality had been using the plot no. 70/101 for eight years.

The Court notes at the outset that the applicant had not submitted any details to demonstrate that her property had indeed lost value as a result of the 1998 decision to return the plot to her. Furthermore, the Court observes that the applicant has not shown that she has instituted proceedings for compensation under article 160 of the Code of Administrative Procedure.

It follows that the applicant has not complied with the requirement under Article 35 § 1 of the Convention as to the exhaustion of domestic remedies, and, therefore, this part of the application must be rejected in accordance with Article 35 § 4 of the Convention

2. The applicant asserted under Article 6 of the Convention read together with Article 1 of Protocol No. 1 that the length of the administrative proceedings in her case had been excessive.

The Government maintained that in the present case two parallel sets of proceedings should be considered. The first set concerning expropriation and compensation began on 16 December 1991 , however the relevant period to be considered began on 1 May 1993 when the Polish Government recognised the right of individual petition. The proceedings were further stayed on 9 September 1996 and the applicant had never filed a motion for resuming the proceedings. The second set began on 30 March 1995 and ended on 6 November 1998 . In the Government ’ s opinion the length of both sets of administrative proceedings was reasonable and could be explained by the circumstances of the case.

The applicant contested these submissions. She claimed that she had not made an appeal to counteract the inactivity of the administrative authorities as she had considered that it would have only prolonged the proceedings.

The Court firstly observes that the applicant did not attempt to pursue the remedies designed to counteract the inactivity of the administrative authorities. In particular, s he could have lodged an appeal to the higher authority under Article 37 § 1 of the Code of Administrative Procedure, alleging inactivity on the part of the Governor of Łódź or the Łódź District Office.

Examining the instant case, the Court notes that nothing prevented the applicant from making use of that remedy . Sh e could have made an appeal under Article 37 § 1 of the Code of Administrative Procedure in order to urge the relevant authority to issue a decision within the time-limits fixed in Articles 35 and 36 of that Code. Sh e further had an opportunity to obtain ‑ through the expedited procedure laid down in Article 26 of the 1995 Act – a ruling on h er rights or obligations directly from the Supreme Administrative Court (see Zynger v. Poland ( dec .), no. 66096/01, 7 May 2002 ; Bukowski v. Poland ( dec .), no. 38665/97, 11 June 2002 , ).

It follows that this part of the application is inadmissible 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.

For these reasons, the Court by a majority

Declares the application inadmissible.

Vincent Berger Bo š tjan M. Zupančič Registrar President