FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 67979/01 by Bogdan SZENK against Poland

The European Court of Human Rights (Fourth Section), sitting on 1 June 2006 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää,

Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , Mrs E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 26 July 2000,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court

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, Mr Bogdan Szenk, is a Polish national who was born on 18 May 1929 and lives in Warsaw. He was represented before the Court by Mr A. Rzepliński, a lawyer practising in Warsaw. The respondent Government were represented by Mr J. Wołąsewicz, of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

The applicant's parents owned a two-storey building in Warsaw.

By virtue of the 1945 Decree on the Ownership and Use of Land in Warsaw ( dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy ) the Warsaw municipality (and after 1950 the State Treasury) became the owner of all plots of land located in Warsaw. The decree provided for a possibility to obtain the perpetual lease of a plot of land on request. On 23 November 1948 the applicant's parents filed such a request.

At the beginning of the 1950s they were deprived of the right to manage the property and forced to renounce the rent collected from their tenants.

On 5 July 1967 the Board of the Warsaw National Council ( prezydium rady narodowej ) examined the request lodged in 1948. It refused to grant the applicant's parents the perpetual use (former perpetual lease) of the land and declared that the building located on that land had become State property.

On 4 December 1967 the Ministry of Municipal Administration ( Ministerstwo Gospodarki Komunalnej ) dismissed the applicant's appeal against that decision. It found that the building in question was not a small one-family house, which would qualify it for exclusion from the so-called “communal administration” of properties, provided for by a law adopted in 1957. As the building was covered by that administration, the Ministry considered that granting the perpetual use of the land would have no justification.

Subsequently, the applicant's claim for compensation for the expropriated property was rejected.

On 17 June 1991 the applicant filed with the Ministry of Construction ( Ministerstwo Gospodarki Przestrzennej i Budownictwa ) a request for the annulment of the decision of 4 December 1967.

On 1 April 1992 the Minister refused the request, considering that the challenged decision had been issued in accordance with the law. The applicant appealed.

On 23 July 1993 the Supreme Administrative Court ( Naczelny SÄ…d Administracyjny ) dismissed his appeal.

Subsequently, the First President of the Supreme Court filed with that court an extraordinary appeal against that judgment.

On 7 February 1995 the Supreme Court quashed the 1993 judgment of the Supreme Administrative Court and the decision of the Minister of Construction. It considered that they had relied on the conformity of the 1967 decisions with the “communal administration” of properties, whereas the law providing for such administration had been adopted after the date of lodging the request for perpetual lease and therefore that law should not apply. The court observed that the 1945 decree obliged the municipality to grant requests for perpetual use of land unless the use of that land by its former owner would be incompatible with its function set forth in the development plan. The Supreme Court pointed out that the organs dealing with the applicant's request had not examined the issue of such compatibility. It made reference to the constitutionally guaranteed protection of property, pointing out that the applicant's property had been expropriated on unspecified legal grounds and no compensation had been awarded therefore.

On 24 August 1995 the Minister of Construction, having regard to the Supreme Court's judgment, declared that the part of the decision of 4 December 1967 concerning those flats in the disputed building which had been already sold by the municipality to their tenants had been issued in breach of the law. However, it was impossible to declare the decision null and void since, under Article 156 § 2 of the Code of Administrative Procedure if more than ten years had elapsed from the date on which such an unlawful decision had been given, the Minister could only declare that it had been issued in breach of the law. The Minister annulled the remainder of that decision. In consequence, the appellate proceedings in respect of that remainder of the decision of 5 July 1967 were re-opened.

On 23 November 1995 the Warsaw Self-Governmental Board of Appeal ( samorządowe kolegium odwoławcze ) quashed the decision of 5 July 1967 and remitted the case for re-examination.

In May 1996 the Warsaw-Centre Municipal Office (Urząd Gminy Warszawa-Centrum) informed the applicant that his case would probably be examined, due to a large number of similar cases pending before the Office,  towards the end of 1996.

In 1996 the applicant lodged with the Board of Appeal a complaint about the inactivity of the Mayor of Warsaw ( prezydent miasta ), who was competent to deal with the case. On 9 April 1996 the Board dismissed the complaint as unsubstantiated.

A letter of the Warsaw-Centre Municipal Office of 17 September 1996 to the Supreme Board of Supervision containing a reply to the applicant's claim lodged with the Chamber was sent for information to the applicant.

On 16 September 1996 the Warsaw-Centre Municipal Office requested the applicant to provide it with a copy of the court's decisions identifying his parents' heirs. On 3 and on 23 October 1996 the applicant submitted the requested information. On 23 October 1996 three of the heirs of the former co-owner Ms J.K. declared their wish to join the proceedings. On 30 October 1996 the former co-owner D.K. – at present D.Sz., declared her wish to join the proceedings. On 21 November 1996 the Office requested Ms D.Sz. to present certain information about her current name.

On 21 November 1996 the Warsaw-Centre Municipal Office requested the Department of Town Planning and Architecture of the District Office Praga Południe (Wydział Urbanistyki i Architektury Urzędu Dzielnicy Praga Południe) to submit an extract from the town planning scheme concerning the plot under dispute.

On 21 November 1996 the Warsaw-Centre Municipal Office informed the applicant about the problems hindering it from taking the requested decision. The first problem consisted in the fact that the applicant's mother had lodged her request to be granted the right to perpetual use before the State Treasury became officially the owner of the plot. Another difficulty arose from the fact that the heirs of Ms J.K. – the former co-owner of the plot - had not submitted to the Office their legal titles to the ownership. The third problem consisted in the fact that Ms D.K. – the second former co-owner - had changed her name and had not submitted to the Office documents confirming it officially. Finally it was necessary for the Office to obtain the extract from the town planning scheme concerning the plot. In order to clarify the legal consequences arising from the first problem the Office had posed a legal question to the Supreme Administrative Court, asking if the requirements of the 1945 Decree were fulfilled when the request had been lodged before the plot in question came officially into the ownership of the State Treasury. The applicant was informed that as soon as the answer was provided the Office would proceed further with his request.

On 29 November 1996 one of the heirs of the former co-owner presented to the Office the court's decision stating that the part of the plot belonging to the late Ms J.K. had been inherited by six persons (Ms Z.W., Mr H.K., Mr M.K., Ms T.P., Ms K.F and Ms R.K.). She additionally informed the Office that certain other inheritance proceedings concerning the inheritance of Ms J.K.'s late heirs were pending.

The letter of the Warsaw-Centre Municipal Office of 30 November 1996 to the Supreme Board of Supervision, containing a reply to the applicant's complaint about the excessive length of proceedings, was sent to the applicant for information.

On 9 December 1996 the Office received the extract from the town planning scheme concerning the plot.

On 11 February 1997 Ms D.Sz. submitted to the Office the requested documents.

The examination of the case not having commenced for over a year, the applicant lodged with the Board of Appeal a complaint about the inactivity of the Mayor of Warsaw.

On 21 February 1997 the Board of Appeal found the applicant's complaint well-founded and ordered the Mayor to finish the examination of the case by 31 March 1997.

On 22 February 1997 one of the heirs of the former co-owner Ms J.K. informed the Office that the inheritance proceedings concerning the estate of the late successors to the rights of Ms J.K. were still pending.

The Office's letter of 24 March 1997 to the Ombudsman containing a reply to the applicant's complaint about excessive length of the proceedings was sent to the applicant for information.

On 30 April 1997 the applicant requested the Office to issue in his case not one but two decisions granting him the right to perpetual use of the plot concerned. He argued that before the plot came into the ownership of the State Treasury, it constituted two separate plots. In consequence, the Office should restore the original legal situation of the property and should issue two separate decisions granting the applicant the right to perpetual use of the separate plots of land.

On 30 April 1997 at the request of the Office an expert submitted an evaluation report concerning the value of the plot.

The Office's letter of 16 May 1997 to the Supreme Board of Supervision containing a reply to the applicant's complaint about the length of the proceedings was sent to the applicant for information.

On 28 July 1997 one of the heirs of the former co-owner Ms J.K. informed the Office that the inheritance proceedings concerning the late successors of Ms J.K. had been terminated. She submitted a copy of the court's decision of 18 June 1997. The decision regulated the inheritance of Mr M.K., Mr H.K. and Mr R.A.K.

On 15 September 1997 the applicant submitted to the Municipal Office a copy of a request lodged with the court by a certain Ms H.K. She requested the court to quash the court's decision of 18 June 1997 in the part concerning the estate of Mr M.K. She argued that already by 2 March 1978 she had been declared the heir of Mr M.K.

On 30 September 1997 the applicant requested the Office to grant him the perpetual use but only in regard to a part of the presently existing plot. This part of the plot had earlier constituted a separate plot.

On 16 December 1997 the Warsaw-Centre Municipal Office requested the Deputy Director of the Board of the District Praga PoÅ‚udnie (ZastÄ™pcÄ™ Dyrektora ZarzÄ…du Dzielnicy Praga PoÅ‚udnie) to prepare a so ‑ called “map of legal status” of the plot.

On 29 January 1998 the Supreme Court quashed the decision of 18 June 1997 concerning the estate of Mr M.K. As a result, Ms H.K. inherited the entire estate of the late Mr M.K.

On 16 March 1998 the Office informed the Supreme Board of Supervision about the stage reached in the proceedings. This letter was sent for information also to the applicant.

On 14 May 1998 the District Office Praga Południe (Urząd Dzielnicy Praga Południe) informed the Warsaw-Centre Municipal Office that the lawful division of the building was impossible because it did not possess a mandatory anti-fire wall ( ściana zabezpieczeń przeciwpożarowych) . In the light of this information the Office decided that an expert opinion should be prepared. On 22 June 1998 the expert submitted the opinion. He stated that the lawful division of the building was possible.

On 16 July 1999 the Municipal Office requested the District Office Praga Południe to issue a decision confirming the division of the plot was possible (postanowienie o możliwości podziału) and an approval of the  division of the plot (decyzja zatwierdzająca podział) .

On 15 July 1999 the Office requested Ms H.K. to provide it with a copy of the court's decision stating that she had inherited the estate of the late Mr M.K. She submitted the requested document on 30 July 1999.

On 29 July 1999 the Warsaw-Centre Municipal Office informed the applicant and other heirs of the former co-owners that it had instituted ex officio administrative proceedings concerning the division of the plot. It was explained that the decision approving the division of the plot would make it possible to determine the parties' shares in the co-property and that, in turn, this would make it possible to give a decision conferring the right to perpetual use of the plot. By a letter of 30 July 1999 the parties to the proceedings were requested to appear within a fourteen days time-limit in order to express their opinion concerning the planned division of the plot. They were informed that a failure to appear would entail discontinuance of the proceedings.

On 18 August 1999 Ms H.K. and on 23 August 1999 Ms Z.W expressed their consent to the division.

On 31 August 1999 the applicant was informed about the stage reached in the proceedings.

Due to the fact that not all persons summoned to give their consent, including the applicant, expressed their consent to the planned division of the plot, on 2 September 1999 the Office discontinued the proceedings in its part concerning the division of the plot. On 15 September 1999 the applicant appealed against that decision to the Board of Appeal.

On 9 September 1999 Ms K.F. submitted to the Municipal Office information about the address of Ms J.W.

On 27 September 1999 the applicant lodged with the Supreme Administrative Court a complaint about the further inactivity on the part of the Mayor and the Office.

On 2 March 2000 that court ordered the Mayor to deal with the case within three months. The court considered that the manner in which the proceedings had been conducted disclosed improper functioning of the administrative authority concerned and a flagrant breach of the provisions of the Code of Administrative Procedure relating to the time-frame within which administrative cases should be dealt with.

On 10 July 2000 the Board of Appeal dismissed the applicant's appeal against the decision of 2 September 1999 to discontinue the proceedings concerning the division of the plot. On 8 August 2000 the applicant lodged a further appeal against that decision. On 7 January 2002 the Supreme Administrative Court dismissed his appeal.

On 25 July 2000 the Mayor of Warsaw stayed the proceedings concerning the applicant's request to grant him the perpetual use of the plot of land on account of the fact that the perpetual users of the land did not express their consent to division of the property.

No decision has to date been issued.

B. Relevant domestic law

Inactivity of an administrative organ

According to the Code of Administrative Procedure cases shall be handled without undue delay and the time of their examination, even if they are complex, shall not exceed two months (Article 35 § 3). Having failed to comply with the time-limit prescribed by the Code, the administrative organ 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.

Article 37 of that Code provides:

Ҥ 1. A complaint about failure to handle a case within the time-limit set forth in Article 35 or fixed under Article 36 can be lodged with an administrative organ of a higher level.

§ 2. [That] organ, having found the complaint well-founded, shall fix an additional time-limit for the completion of the case ...”

Further remedies in respect of inactivity on the part of an administrative organ are provided for by the Law on the Supreme Administrative Court. Under Section 17 of that Law a party to administrative proceedings may lodge with the Supreme Administrative Court a complaint about such  inactivity.

Section 26 of the Law provides that the Court, having found such a complaint well-founded, shall oblige the administrative organ concerned to issue a decision or to perform an activity. Section 31 reads in so far as relevant:

“1. In the event of establishing that the administrative organ to ... the inactivity of which the court's judgment relates has not ... carried out that judgment, the court can decide to impose a fine on that organ. ...

2. In the instance referred to in § 1 the court can, in addition, rule on the existence or non-existence of a right or obligation, if the nature of the case and its uncontested facts ... make it possible.

3. The court shall apply the provisions of §§ 1 and 2 in case of granting a complaint lodged by an entitled entity, which has previously turned to the organ concerned with a written notice to carry out the court's judgment.

4. A compensation claim is vested in a person who has sustained damage as a result of failure to carry out the court's judgment ...”

Section 34 of the Law on the Supreme Administrative Court sets out the requirement of the exhaustion of available remedies before lodging a complaint with that court. Accordingly, the complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level, pursuant to the above-mentioned Article 37 of the Code of Administrative Procedure.

Decree on the Ownership and Use of Land in Warsaw

According to the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw ( dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy ) the ownership of all land was transferred to the municipality. The decree provides in so far as relevant:

“Article 5. Buildings and other objects located on land being transferred into the municipality's ownership remain the property of those who have owned them to date, unless specific provisions provide otherwise.

Article 7.  (1) The owner of a plot of land (...) can within 6 months after the taking of possession of the land by the municipality file a request to be granted (...) the right to a perpetual lease ( wieczysta dzierżawa ) with a peppercorn rent ( czynsz symboliczny ). ...

(2) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan ( plan zabudowania ). ...

(4) In case the request is refused, the municipality shall offer the person entitled, as long as it has spare land in its possession, the perpetual lease of land of equal value in use, on the same conditions, or the right to construct on such land.

(5) In case no request, as provided for in paragraph (1), is filed, or the former owner is for any other reasons not granted a perpetual lease or the right to construct, the municipality is obliged to pay compensation pursuant to article 9.

Article 8. In case the former owner is not granted the right to a perpetual lease or the right to construct, all buildings located on the land become the property of the municipality, which is obliged to pay, pursuant to article 9, compensation for the buildings which are fit to be used or renovated.

Article 9. ... (2) The right to compensation begins to apply 6 months after the date of the taking into possession of the land by the municipality of Warsaw and expires 3 years after that date. ...”

According to article XXXIX of the Decree of 11 October 1946 introducing the Property Law ( prawo rzeczowe ) and the Law on Land and Mortgage Registers, the right to construct and the right to a perpetual lease could be transferred into temporary ownership ( własność czasowa ).

Section 40 of the Law of 14 July 1961 on Administration of Land in Towns and Estates ( ustawa o gospodarce terenami w miastach i osiedlach ) replaced temporary ownership with perpetual use ( użytkowanie wieczyste ).

Perpetual use

The right to perpetual use is regulated by the Civil Code. An individual or a legal entity may be granted such a right on land owned by the State or local self-government. The right comprises a right to use the land to the exclusion of others for ninety-nine years, on payment of a yearly fee. A person entitled to the right can dispose of it.

In 1997 there was enacted the Law on Transforming Perpetual Use Vested in Individuals into Ownership ( ustawa o przekształceniu prawa użytkowania wieczystego przysługującego osobom fizycznym w prawo własności ). The law guarantees individuals who acquired perpetual use of property before 31 October 1998 the right to have that right transformed into ownership. Article 6 § 1 (6) of that law provides that individuals who have acquired the right to a perpetual lease under article 7 of the 1945 decree are entitled to such transformation free of charge, regardless of when they acquired their right to a perpetual lease. Requests for the transformation could be submitted until the end of 2002.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about the prolonged inactivity of the Mayor of Warsaw as a result of which no final decision in his case has so far been issued.

2. He further complains under Article 1 of Protocol No. 1 that despite decisions confirming his rights to the property under dispute he has not to date been able to regain the possession of it.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention about the prolonged inactivity of the Mayor of Warsaw.

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

The Court must first examine whether Article 6 of the Convention was applicable to the proceedings concerned. The Court notes that the proceedings concern essentially the applicant's request to be granted the right to perpetual use to the plot in question. The Court accordingly has to have regard to the nature of the right sought. It notes that the relevant provisions of domestic law are contained in the Civil Code, that the right in question it is regarded therein as a right in rem and that it can be sold or bequeathed.  It is also recalled that proceedings in which such a right is sought against the background of a legal framework concerning property rights to land within the administrative borders of Warsaw have been found by the Court to concern “civil rights” within the meaning of Article 6 of the Convention (cf. Potocka and Others v. Poland (dec.), no. 33776/96, 6 April 2000). Accordingly, the Court considers that Article 6 § 1 of the Convention is applicable to the proceedings in issue.

As to the substance of the complaint, the Government submitted that the case was very complex, mainly due to the unclear legal status of the disputed property. This, in the Government's view, resulted mainly from the fact that it was not clear whether this property was composed of one or of two plots. It further stemmed from the fact that in the 1970s and 1980s seven flats in the building were sold to their tenants who had thereby acquired shares in the right to perpetual use of the plot. Under domestic law they therefore became entitled to give their consent to the administrative division of the property. As some of them did not consent to such a division, the case had to be brought to a civil court, competent to deal with this issue in contentious proceedings. Moreover, another set of inheritance proceedings relating to the estate of one of the legal predecessors of the holders of the right to perpetual use rendered the proceedings even more complex. The Government were of the view that the case was dealt with without undue delays.

According to the applicant, the civil law aspects of the case, referred to by the Government, could not by themselves explain the overall length of the proceedings. Even if this were the case, the respondent Government would in any event be responsible also for delays in the civil proceedings. Moreover, the conduct of the proceedings by the administrative authorities was several times strongly criticised by the Supreme Administrative Court, the last time in its judgment of 2 March 2000. The length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

The first set of proceedings concerned in the present case began on 17 June 1991. Subsequently, following the judgment of the Supreme Court of 7 February 1995  which quashed decisions given in this set of proceedings, a new set of proceedings started on 23 November 1995. These proceedings are still pending. They have therefore already lasted over 12 years, out of which a period of over 11 years falls within the Court's competence ratione temporis , Poland having recognised the right of individual petition as from 1 May 1993.

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.

2. The applicant further complains under Article 1 of Protocol No. 1 that despite decisions confirming his rights to the property under dispute he has not to date been able to regain possession of it.

Article 1 of Protocol No. 1 in its relevant part 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.”

A. Exhaustion of domestic remedies

The Government noted that the proceedings concerning the issue as to whether the applicant had the right of the perpetual use of the property in question were still pending before the domestic authorities and therefore the complaint relating thereto should be declared inadmissible for non ‑ exhaustion of domestic remedies.

The applicant disagreed.

The Court recalls that the failure to try an action within a reasonable time can on occasions have repercussions as regards respect for some other right guaranteed by the Convention (see Buchholz v. Germany , judgment of 6 May 1981, Series A no. 42, p. 22, § 65). One and the same fact may fall foul of more than one provision of the Convention and its Protocols. In particular, the fact that the Court has found a violation of the “reasonable time” requirement, set forth in Article 6 § 1 of the Convention, does not prevent it from examining the length of the proceedings complained of in the light of the guarantees of Article 1 of Protocol No. 1 (see Erkner and Hofauer v. Austria , judgment of 23 April 1987, Series A no. 117, p. 66, § 76).

Therefore, the Court rejects the Government's objection and finds that the applicant exhausted all effective domestic remedies, within the meaning of Article 35 § 1 of the Convention.

B. Substantive requirements of the admissibility of the complaint

The Government submitted that land within the administrative borders of Warsaw was taken over, under the 1945 Decree, by the municipality and later by the State, in view of the fact that during the Second World War  more than eighty per cent of the town had been destroyed. Therefore the expropriation of Warsaw lands was necessary in order to ensure proper reconstruction of the town and rational land administration. They reiterated that where an act characterised as expropriation took place before the entry into force of Article 1 of Protocol No. 1 in respect of a given Member State, the Court lacked temporal jurisdiction to examine such  an act as deprivation of ownership was in principle an instantaneous act. They argued that at the time of entry into force of Protocol No. 1 in respect to Poland, i.e. on 10 October 1994, the applicant did not have any property right to the plot concerned.

The applicant reiterated that as a result of the excessive length of the proceedings he could not use his property or make any profit from it. He emphasised that the house in question had never been destroyed, so the argument based on the massive destruction of Warsaw during the Second World War was irrelevant to the circumstances of the case.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, including the question of applicability of Article 1 of Protocol No. 1 to the Convention to the circumstances of the case, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Michael O'Boyle Nicolas Bratza Registrar President