FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51832/99 by Marian FUTRO against Poland

The European Court of Human Rights (Fourth Section), sitting on 3 June 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 22 December 1998,

Having regard to the partial decision of 12 December 2000,

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 Marian Futro , is a Polish national, who was born in 1951 and lives in Poznań , Poland.

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

A. Particular circumstances of the case

1. Facts prior to 1 May 1993

In 1975 the applicant’s property in Poznań was expropriated. In February 1990 the applicant and one of his brothers lodged an application for restitution of that land with the Poznań Municipality ( Urząd Miejski ).

The Poznań Mayor ( Prezydent Miasta ) failed to issue a decision. On 13 June 1991 the case-file was transferred to the Poznań District Office ( Urząd Rejonowy ), as under the new legislation it had become competent to deal with the applicant’s case.

On 16 June 1991 the applicant lodged a complaint with the Supreme Administrative Court alleging inactivity on the part of the first-instance administrative authority. On 5 November 1991 the court gave a judgment and ordered the District Office to deliver a decision within a time-limit of thirty days.

Meanwhile, on 15 July 1991 the District Office issued a partial decision and determined that one of the expropriated plots of land had ceased to serve the purpose indicated in the expropriation decision. On 31 January 1992 the Governor of Poznań quashed this decision and remitted the case for re-examination.

On 17 June 1992 the District Office held the so-called “administrative hearing” ( rozprawa administracyjna ). On 11 February 1993 an expert submitted his report.

2. Facts after 1 May 1993

On 30 June 1993 the Poznań District Office issued a decision to the effect that part of the property be returned to the applicant and other co-owners. It also ordered that they pay the indexed sum to the State Treasury in return for the compensation, which they had received in 1975.

On 27 September 1993, upon an appeal lodged by the applicant’s brother, the Poznań Governor quashed the first-instance decision and remitted the case

On 20 June 1994 the District Office ordered that a plan concerning the partition of the property be drawn.

On 20 December 1994 the District Office decided that expert evidence be obtained in order to determine the value of the property. On 23 January 1995 the expert submitted her report.

In the course of the proceedings, the applicant’s father died. On 27 March 1995 the Poznań District Court declared that his property was inherited by one of the applicant’s brothers and his children.

On 21 April 1995 the District Office held an administrative hearing.

In November 1995 the District Office ordered that yet another expert report be obtained. On 5 November 1995 the expert submitted his report.

On 17 July 1996 and 24 July 1997 the District Office asked the relevant authorities for information about the infrastructure of the street situated along the property in question.

On 1 January 1998 the Law of 21 August 1997 on Land Administration ( Ustawa o gospodarce nieruchomościami ) came into force. On that date the Poznań Governor became competent to deal with the applicant’s case.

On 30 March 1998 an administrative hearing was held.

On 15 June 1998 the authorities informed the applicant that a new time-limit for the issue of a decision determining the case was set for 30 September 1998.

On 3 August 1998 the Poznań Governor informed the applicant that he could consult the expert report concerning the value of the property ( operat szacunkowy ).

On 25 September 1998 the Poznań Governor held an administrative hearing.

On 30 September 1998 the expert report was amended.

On 30 December 1998 the Poznań Governor issued a decision ordering that a certain part of the property be returned to the applicant and other co-owners, as it had no longer served the purpose specified in the expropriation decision. The Poznań Governor ordered the co-owners to pay the indexed sum to the State Treasury in return for the compensation awarded to them in 1975.

On 12 and 18 January 1999 respectively,  the applicant’s brother and the respondent company appealed against that decision to the President of the Office for Housing and Town Development ( Prezes Urzędu Mieszkalnictwa i Rozwoju Miast ).

On 20 February 2001 the President of the Office for Housing and Town Development upheld the decision of the Poznań Governor.

It appears that on a further appeal the case is pending before the Supreme Administrative Court.

B. Relevant domestic law

Article 35 of the Code of Administrative Procedure lays down time-limits ranging from 1 month to 2 months for dealing with a case pending before an administrative authority. 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 dealt with within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings may 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 examining the 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 prevent such delays in the future.

Until 1 October 1995, under Article 216 of the Code of Administrative Procedure, a party to administrative proceedings could, at any time, lodge a complaint with the Supreme Administrative Court about the fact that an administrative authority had failed to issue a decision.

On 1 October 1995, when a new Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) took effect, Article 216 of the Code of Administrative Procedure was repealed.

Under section 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge a complaint with the Supreme Administrative Court about inactivity on the part of an authority obliged to issue an administrative decision.

Section 26 of the Law provides:

“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, declare, or recognise a right or obligation provided for by the law.”

Pursuant to section 30 of the Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question.

THE LAW

The applicant’s complaint relates to the length of the proceedings which began in February 1990 and are still pending. They have therefore already lasted more than 12 years and 11 months, out of which 9 years and 8 months falls within the Court’s jurisdiction ratione temporis .

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

This 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...”

In this respect, the Government underline that the applicant did not attempt to pursue the remedies designed to counteract the inactivity of the administrative authorities. In particular, he could have lodged an appeal to the higher authority (i.e. Poznań Governor) under Article 37 § 1 of the Code of Administrative Procedure, alleging inactivity on the part of the Poznań District Office.

The applicant claims that he made an appeal alleging inactivity on the part of the Poznań District Office in 1991. Moreover, in its judgment of 5 November 1991 the Supreme Administrative Court ordered the Poznań District Office to issue a decision within one month but that was to no avail, as the Poznań District Office failed to comply with that order. The applicant submits that it is true that, subsequently he did not make use of this remedy. However, he considered it was not necessary, as he had had already obtained a favourable decision of the Supreme Administrative Court.

The Court first notes that it cannot examine the question of what were the effects of the applicant’s complaint about the inactivity of the relevant authority since that complaint was made before 1 May 1993, which is the date on which the declaration whereby Poland recognised the right of individual petition took effect. It follows that this fact falls outside the Court’s jurisdiction ratione temporis .

The Court further reiterates that Article 35 § 1 obliges the applicant to try available remedies that relate to the breach alleged by him. The States must have a chance to put matters right through their own legal system before having to answer before an international body for their acts. In that way Article 35 § 1 obliges the applicant to try available remedies that relate to the breach alleged by him (see, Zynger v. Poland (dec.), no. 66096/01, 7 May 2002, unreported; Bukowski v. Poland (dec.), no. 38665/97, 11 June 2002, unreported).

The Court observes that the applicant has not contested the availability of the remedy relied on by the Government.

Examining the instant case, the Court notes that nothing prevented the applicant from making use of that remedy after 1 May 1993. He could have made an other 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. He further had an opportunity to obtain – through the expedited procedure laid down in Article 26 of the 1995 Act – a ruling on his rights or obligations directly from the Supreme Administrative Court.

Having regard to the criteria laid down in its case-law, the Court holds that the Government’s objection should be allowed (see, Bukowski v. Poland , cited above).

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 unanimously

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza              Registrar              President