FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40732/98 by J.S. and A.S. against Poland

The European Court of Human Rights (Fourth Section), sitting on 5 October 2004 as a Chamber composed of

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , judges , and Mr M. O ' Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 15 August 1997 ,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr J. S. and Mrs A.S. are a married couple residing in Stegna .

A. The circumstances of the case

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

By way of an administrative decision of 29 October 1948 a property owned by the second applicant ' s father W.U. and located in Czarzaste-Chodubki was expropriated pursuant to provisions of the 1944 Decree on Agrarian Reform. It was stated in the decision that W.U. was the owner of this property.

On 21 December 1948 this decision was upheld by the Minister of Agriculture, who considered that the factual findings of the expropriation commission as to the area of the property concerned could not be called into question given that the commission was composed not only of agents of administration, but also of political representatives.

By an on-site protocol of 7 May 1949 a commission, established under the provisions of the 1944 Decree on Agrarian Reform, inspected the property and found that land situated in Czarzaste-Chodubki owned by the second applicant ' s father W.U. consisted of 68 hectares of land, out of which 50 hectares 3175 square metres constituted arable land.

On 15 February 1990 the applicants lodged with the Ministry of Agriculture an application to have the expropriation decision declared null and void under Article 156 of the Code of Administrative Procedure or amended under Article 155 of the Code of Administrative Procedure.

On 3 March 1995 the applicants complained to the Supreme Administrative Court about the failure of the administration to rule on their 1990 application.

On 24 March 1995 the applicants submitted further pleadings to that court, indicating that certain relevant documents had been found in the Ostrołęka Regional Office which showed that the on-site commission had wrongly calculated the surface of the property concerned in 1949 . The area of the property was in fact, in the light of the newly found documents, 49,92 hectares of arable land. Th us, the property should not have been subjected to expropriation within the framework of the agrarian reform law as it did not attain the minimum threshold of 50 hectares of arable land.  The applicants further referred to an official protocol drawn up in 1957, which confirmed this finding.

By a judgment of 9 October 1995 the Supreme Administrative Court ordered the Minister of Agriculture to issue a decision concerning the applicants ' application of 1990 within two months from the date of the judgment.

By a letter of 10 November 1995 the applicants informed the Ministry that the property in question had had a surface of 44 hectares, as shown by the protocol of 8 April 1948 and by another document drawn up by land surveyor A.P. in 1948.

On 17 April 1996 the Ministry of Agriculture obliged the Ostrołęka Regional Office to take further evidence in order to establish the legal status of the property concerned under the provisions of civil law, i.e. to determine who had been the o wner of the property concerned at the time of expropriation.

The applicants objected thereto by a letter of 19 May 1996 , pointing out that the question who had been the owner of the property in 1948 in terms of substantive civil law was entirely extraneous to the administrative case, pending before the Ostrołęka Regional Office. Any issues concerning the assessment of the link between the former owner of the property and the applicants from the angle of substantive civil law on inheritance was irrelevant for the administrative case, which concerned only the examination of the lawfulness of the administrative decision on expropriation. They insisted that a decision on their restitution claim be given in accordance with the judgment of the Supreme Administrative Court of 1995, which had set a two-month time limit for the authorities to do so .

They reiterated their submissions in a letter of 29 May 1996 . On 23 July 1996 the applicants again requested that a decision be given. On 3 December 1996 the applicants reiterated their request that the decision on the merits of the case be given and complained that the proceedings had remained pending for a long time. They referred again to the Supreme Administrative Court ' s judgment of 9 October 1995 .

By a decision of 18 July 1997 the Ministry stayed the p roceedings on the ground that a certain H.S. had submitted a request to quash the expropriation decision. She had argued that the second applicant ' s father W. U. was not its owner, but only its lessee. She contended that it was her father T.U., who owned the property concerned . However, she had failed to submit conclusive documents to prove it. The proceedings were therefore stayed pursuant to Article 97 § 1 of the Code of Administrative Procedure until relevant documents had been submitted.

The applicants appealed against the decision to stay the proceedings. They reiterated their request that a decision be given and emphasised that they had remained pending since 1990. They argued that the decision to stay the proceedings had been taken in disregard of the essential substantive law elements of the case.  The documents required by the Ministry and relating to the civil law status of the property at the time of expropriation were entirely irrelevant to the administrative case.

By a letter of 6 August 1997 the applicants reiterated their arguments. The proceedings remain stayed. The applicants submit that all their efforts to have them resumed have been unsuccessful.

B. Relevant domestic law

1. Administrative proceedings by which a final administrative decision can be challenged

Under Polish law no provisions have been enacted allowing specifically for the redressing of wrongs committed in connection with expropriations effected within the framework of the agrarian reform. Therefore no specific legal framework is available, enacted with the purpose of mitigat ing the effects of certain infringements of property rights .

However, it is open to persons whose property was expropriated or their legal successors, to institute, under Article 156 of the Code of Administrative Procedure, administrative proceedings in order to claim that the expropriation decisions should be declared null and void as having been issued contrary to law. In particular, a final administrative decision can be declared null and void at any time if it was issued without a legal basis, or in flagrant violation of law.

Decisions flawed as a result of lesser procedural shortcomings, listed under items 1, 3, 4 and 7 of Article 156, such as being given by an authority which lacked competence to issue a decision in a given case, or in a case which had already been decided or addressed to a person not being a party to the proceedings , can only be declared null and void if less than ten years have elapsed form the date on which such decisions ha ve been given. In respect of such decisions it is only possible to declare that they ha ve been issued contrary to law, but they remain valid.

If the flaw that taints the challenged decision is of a substantive character, i . e. if the decision had been given without a legal basis or in flagrant violation of law , the administrative authority sh all declare it null and void.

A decision to declare the old decision null and void, or a refusal to do so, may ultimately be appealed to the Supreme Administrative Court .             

2. Agrarian reform in Poland under the provisions of the Decree on Agrarian Reform of 6 September 1944

Article 1 of the Decree provides that “the agrarian reform in Poland is a State and economic imperative and shall be realised ... pursuant to principles set forth in the manifesto of the Polish Committee of National Liberation”.

Article 2 § 1 of the Decree, insofar as relevant, reads:

“The following agricultural estates shall be designated for the purposes of the agrarian reform: ...

e) being a property or a co-property of natural persons or legal entities, if the entire area of the estate exceeds either 100 hectares in total, or 50 hectares of arable land ...

All real estate, referred to in items ... , e) above shall, with no delay and without compensation, be taken over by the State. “

3. Length of administrative proceedings

(a) Before 30 June 1995

Under Article 35 of the Code of Administrative Procedure of 1960, the administration is obliged to deal with cases without undue delay. Simple cases should be dealt without any delay. In cases requiring some enquiry a first-instance decision should be given within no more than one month. In particularly complex cases decisions shall be taken within two months.

If the decision has not been given within those time limits, a complaint under Article 37 of the Code can be filed with the higher-instance authority, which shall fix an additional time limit, establish persons responsible for failure to deal with the case within the time-limits, and, if need be, arrange for preventive measures to be adopted in order to prevent further delays.

(b) After 30 June 1995

In 1995 the Supreme Administrative Court Act was adopted, which entered into force on 1 October 1995 . It created further procedures in which a complaint about the administration ' s failure to act could be raised.

Under Article 17 of that Act, that court is competent to examine complaints about the administration ' s inactivity in administrative proceedings in cases referred to in Article 16 of the Act.

Pursuant to Article 26 of the Act, if a complaint about the inactivity of an administrative authority is well-founded, the court shall oblige the competent authority to give a decision, or to carry out the factual act, or to confer or acknowledge an individual entitlement, right or obligation.

COMPLAINTS

The applicants complain that the proceedings in their case, pending since 1990, exceed a reasonable time within the meaning of Article 6 § 1 of the Convention.

THE LAW

The applicants complain that the proceedings in their case ha ve exceed ed a reasonable time within the meaning of Article 6 § 1 of the Convention, which in its relevant part reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

a) The Government first submit that the application is incompatible ratione temporis with the Convention insofar as it relates to events prior to 1 May 1993, the date on which Poland ' s declaration recognising the right of the individual petition to the Convention organs became effective.

The applicants have not address ed this argument.

The Court recalls that Poland recognised the competence of the European Commission of Human Rights to receive individual applications "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993 ". According to Article 6 of Protocol No. 11 this limitation shall remain valid for the jurisdiction of the Court under that Protocol.

It follows that the application, insofar as it relates to events prior to 1 May 1993, is outside the competence ratione temporis of the Court and is therefore inadmissible as incompatible with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.

b) The Government further submit that the applicants have not exhausted all the remedies provided for by Polish law. They maintain that the applicants should have established their legal interest to pursue their case before the respective public authorities. T hey have not exhausted a remedy under Article 1025 of the Civil Code i.e. no inheritance proceedings in respect of the civil law status of the property were conducted. The Government raises that this remedy is universally available and effective.

The applicants have not address ed the issue.

The Court notes that the present application concerns the length of administrative proceedings to which the applicants are part ies . The ir status as persons having a legal interest in the institution of these proceedings and concerned by the outcome of these proceedings was not questioned in these proceedings by any authority. Therefore, the Court finds that the remedy re ferred to by the Government is not linked to the complaint submitted by the applicants. Accordingly, the Court decides to dismiss this objection of the Government.

c) The Court must now examine whether Article 6 of the Convention is applicable to the proceedings concerned.

The Government first submit that the proceedings in question do not concern the applicants ' civil rights and obligations within the meaning of Article 6 of the Convention, a notion which has an autonomous meaning under the Convention. They argue that the applicants have not sho wn that their legal predecessor W.U., the second applicant ' s father, was the owner of the property concerned in 1948 . They contend that he never acquired ownership of this property as he failed to fulfil the conditions of a will of his late father, drawn up in 1918. H is name was never entered into the land register.

T he Government are of the view that since the applicants ' predecessor in title had never become the owner of the property concerned, the proceedings in which the applicants claim that the expropriation decision be annulled on account of its alleged unlawfulness do not concern their “ civil rights and obligations”. Accordingly, the Government conclude that Article 6 of the Convention is not applicable to these proceedings.

The applicants first address the Government ' s submissions relating to the situation of the property concerned under the provisions of civil law. They emphasise that the Government have failed to substantiate their argument by any evidence. They maintain that the status of W.U. as the rightful owner was never been challenged since 1918.

Moreover, the applicants emphasise that the authorities who gave the expropriation decision in 1948 clearly considered him as the owner of this property.

The applicants further argue that the Ministry ordered them to submit various documents to prove the status of the property concerned, in particular its ownership, under provisions of civil law. T he applicants emphasise that the civil law issues, pursued by the Ministry, are entirely irrelevant to the proceedings at hand. These proceedings are of an administrative character. Consequently, it is only the lawfulness of the 1948 decision and its compliance with the then-applicable expropriation laws which the administrative bodies are called upon to examine .

The applicants further argue that the land register of the property was destroyed during the Second World War, in September 1939. Therefore it is impossible to submit conclusive proof of the applicants ' predecessor ' s ownership, a fact of which the Government are well aware as this was an argument repeatedly invoked in the administrative proceedings.

The applicants finally emphasise that the property concerned was too small to fall within the ambit of the application of the 1944 Decree on Agrarian Reform. Its area was less than 50 hectares, the threshold for expropriation provided for by that decree. They refer in this respect to a number of documents, which, in the applicant ' s view, support their claim. Therefore, in the applicants ' view, the expropriation decision given in 1948 was in flagrant contravention of the substantive provisions setting out the then-applicable criteria for expropriation and, therefore, should have been declared null and void within a reasonable time.

The applicants conclude that Article 6 of the Convention is applicable to the proceedings in question.

As to the substance of the application, according to the applicants, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant ' s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required, including the question of the applicability of Article 6 of the Convention to the proceedings concerned.

For these reasons, the Court unanimously

Declares the application admissible, reserving to the merits the question of applicability of Article 6 § 1 of the Convention to the proceedings concerning the applicants ' request to have the expropriation decision declared null and void, without prejudging the merits of the case.

Michael O ' Boyle Nicolas Bratza Registrar President