FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33895/96 by Jerzy Wacław PIETRZAK against Poland

The European Court of Human Rights (Fourth Section) , sitting on 10 December 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs E. Palm , Mrs V. Strážnická , Mr S. Pavlovschi , Mr L. Garlicki , judges , and Mrs F. Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 1 September 1993,

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

Having regard to the partial decision of 16 November 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, Jerzy Wac Å‚ aw Pietrzak, is a Polish national, who was born in 1934 and lives in Koszalin, Poland .

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

A. The circumstances of the case

In 1978 a plot of land, originally owned by the applicant’s parents, was expropriated. The compensation for the property was deposited with a court, because the administrative organ responsible for the expropriation had not established the address of the owners (in fact they had died before the expropriation). The applicant was not satisfied with the amount of the compensation.

On 20 February 1991 the applicant obtained a court decision declaring him the only heir to his late parents’ estate.

1. Administrative proceedings concerning compensation for the 1978 expropriation

On 16 June 1992 the applicant lodged with the Warszawa Praga-Północ District Office ( Urząd Dzielnicy Gminy Warszawa Praga-Północ ) a request to reopen the proceedings concerning the compensation, claiming that he had not taken part in the 1978 proceedings, because he had not been informed about them, and that the final decision had been based on false documents.

On 9 September 1993 the Head of the Warsaw District Office ( Kierownik Urzędu Rejonowego ) refused the applicant’s request. The applicant appealed against that decision. On 22 November 1993 his appeal was dismissed by the Warsaw Governor ( Wojewoda ) as lodged out of a prescribed time limit. The applicant lodged with the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) an appeal against the Governor’s decision.

On 20 April 1995 the Supreme Administrative Court quashed the decisions of 9 September and 22 November 1993, considering that the applicant had lodged his request to reopen the proceedings one day after receiving the text of the 1978 expropriation decision, therefore within the time limit.

On 15 November 1996 the Head of the Warsaw District Office reopened the proceedings concerning the compensation for the 1978 expropriation. On 25 March 1997, in the course of the proceedings, the Head of the Warsaw District Office declared that the 1978 decision had been issued in breach of the Code of Administrative Procedure. However, the decision could not be quashed as more than five years had passed since the date of its issuance. The applicant lodged with the Warsaw Governor an appeal against the decision of the Head of the Warsaw District Office.

On 3 July 1997 the Warsaw Governor quashed the decision of 15 November 1996 and remitted the case for re-examination. The Governor ordered the Head of the Warsaw District Office to establish whether it had been the applicant’s fault that he had not taken part in the 1978 proceedings.

On 1 January 1998 there came into force a new law, according to which the governors became the first-instance organs in cases concerning expropriation and compensation therefor. As the Head of the Warsaw District Office had not completed the relevant procedure before that date, the Warsaw Governor took over the case.

On 2 December 1998 the Warsaw Governor dismissed the applicant’s appeal and refused to quash the 1978 decision. The Governor stated that there was no indication that the documents were false. He also found that the fact that the applicant had not taken part in the 1978 proceedings had resulted from his own fault, because according to law he should have informed promptly the relevant authorities about his parents’ death and the fact that he had inherited the property. The applicant appealed against that decision to the President of the Office for the Housing and Urban Development ( Prezes Urzędu Mieszkalnictwa i Rozwoju Miast ).

On 12 August 1999 the President of the Office for the Housing and Urban Development dismissed the applicant’s appeal. It appears that the applicant did not lodge with the Supreme Administrative Court an appeal against that decision.

2. Administrative proceedings concerning reassessment of the compensation

On 10 July 1992 the applicant filed with the Head of the Warsaw District Office a request for reassessment of the compensation granted in the course of the 1978 expropriation proceedings.

On 29 September 1992 the applicant lodged with the Supreme Administrative Court a complaint about the inactivity on the part of the administrative organs, which despite his requests had not issued any decision. On 2 June 1993 the court delivered a judgment in which it obliged the Head of the Warsaw District Office to issue a decision with respect to the reassessment.

On 7 September 1995 the Head of the Warsaw District Office decided to reassess the compensation. Subsequently, on 27 September 1995 the applicant lodged an appeal against that decision, as he was not satisfied with the amount of compensation and contested the legal grounds for the reassessment.

On 12 December 1995 the Warsaw Governor dismissed his appeal, quashed the decision of the Head of the District Office and refused to reassess the compensation. The Governor considered that the compensation could not be reassessed, as it had been actually paid in the form of so-called “substitute payment”, i. e. it was deposited with a court.

The applicant did not lodge an appeal against that decision.

B. Relevant domestic law

Article 35 of the Code of Administrative Procedure of 1960 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 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 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 preventing in future such delays be applied.

On 1 October 1995 a new Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) came into force.

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

Article 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 law.”

Pursuant to Article 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.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings concerning compensation for the 1978 expropriation.

2. The applicant further complained under Article 6 § 1 of the Convention that the length of the proceedings relating to the reassessment of the compensation exceeded a “reasonable time”.

THE LAW

1. The applicant’s first complaint relates to the length of the proceedings concerning compensation for the 1978 expropriation. He relied on Article 6 § 1 of the Convention, which provides, in so far as relevant:

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

In the Government’s submission Article 6 § 1 of the Convention does not apply to the proceedings in question as it concerns the reopening of the proceedings.

The Court notes that in the instant case there were two phases in the proceedings. The first phase began on 16 June 1992 when the applicant requested the reopening of the proceedings, and ended on 20 April 1995 with the decision of the Supreme Administrative Court.

The second phase began on 15 November 1996, when the Head of the Warsaw District Office reopened the proceedings, and ended on 12 August 1999.

The Court finds the Government’s argument applicable to the first phrase of the proceedings relating to the reopening (see, X v. Austria , no. 7761/77, Commission decision of 8 May 1978, DR 14, p.171; Surmont et al. v. Belgium , no. 13602/88, Commission decision of 6 July 1989, DR 62, p.284). Therefore, the period to be considered under Article 6 § 1 began on 15 November 1996, when the Head of the District Office reopened the proceedings, and ended on 12 August 1999. Accordingly the proceedings lasted 2 years and 9 months.

The Government submitted that the applicant 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...”

In their submission, the applicant could have made an appeal under Article 37 of the of the Code of Administrative Procedure about the alleged inactivity of the relevant administrative authorities.

The Court 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 (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 in Poland a party to administrative proceedings may make an appeal under Article 37 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. In cases where an authority continuously fails to do so, a party still has 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.

2. The second complaint concerns the length of the proceedings relating to the reassessment of the compensation. The Court notes that the period to be taken into consideration began not on 10 July 1992, when the proceedings were initiated, but on 1 May 1993, when Poland’s declaration recognising the right of individual petition for the purposes of former Article 25 of the Convention took effect. The proceedings ended on 12 December 1995. They therefore lasted 3 years and 5 months, out of which the period of 2 years, 7 months and 12 days falls within the Court’s jurisdiction ratione temporis .

In order to determine the reasonableness of the length of time in question, the Court will have regard to the state of the proceedings in the case on 1 May 1993 (see, among other authorities, Humen v. Poland [GC], no. 26614/95, §§ 58-59, 15 October 1999, unreported).

The applicant contended that the length of the proceedings in his case was in breach of Article 6 § 1; the Government, on the other hand, disputed this view.

The parties discussed various criteria which the Court has applied in such cases, such as the exact period to be taken into consideration, the degree of complexity of the case, the parties’ conduct, etc. The Court notes, however, that its case-law is based on the fundamental principle that the reasonableness of the length of proceedings is to be determined by reference to the particular circumstances of the case. In this instance those circumstances call for a global assessment. The Court does not deem it necessary to consider these questions in such detail (see, among other authorities, the Obermeier v. Austria judgment of 28 June 1990, Series A no. 179, pp. 23-24, § 72; the Ferraro v. Italy judgment of 19 February 1991, Series A no. 197, pp. 9-10, § 17, Mączyńsk i v. Poland, no. 43779/98, judgment of 15 January 2002, unreported).

The Court observes that the proceedings in question were clearly of some complexity, given the fact that the relevant administrative authorities had to refer to the facts which had taken place in 1978. Moreover, having regard to the overall length of 3 years and 5 months, out of which the period of 2 years, 7 months and 12 days falls within the Court’s jurisdiction ratione temporis , the Court considers that the impugned proceedings do not disclose unreasonable delay within the meaning of Article 6 § 1 of the Convention.

It follows that this complaint is inadmissible as being manifestly ill-founded within the meaning of Article 6 § 1 of the Convention and that it must be rejected, pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas BRATZA Deputy Registrar President