Communicated on 8 J anuary 201 8

F IRST SECTION

Application no. 79950/13 Jerzy and Elżbieta CABAJ against Poland lodged on 8 December 201 3

STATEMENT OF FACTS

The applicant s , M r Jerzy Cabaj and Ms Elżbieta Cabaj , are Polish national s , who w ere respectively born in 19 54 and 1957 and live in Garwolin . They are represented by Ms. J. Metelska , a lawyer practising in Warsaw.

A. The circumstances of the case

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

1. Background to the case

In 1996 the applicants asked the local authority for a decision on the division of their land. On 10 June 1996 the Garwolin District Office ( Urz Ä… d Rejonowy ) decided to approve the division of two larger plots of land. Four plots were designated for the construction of roads. Under the relevant provisions in force at the material time, those plots were expropriated ex lege on the date on which the decision on division became final. Compensation was to be determined in separate proceedings.

2. Proceedings seeking to have the decision declared null and void

On 7 May 2001 the Garwolin City Office ( Urz Ä… d Miasta ) applied to the Mazowiecki Governor seeking to ha ve the decision of 10 June 1996 declared null and void.

On 18 July 2001 the Mazowiecki Governor ( Wojewoda Mazowiecki ) rejected the application.

On 26 September 2001 the President of the Office for Housing and Town Development ( Prezes Urzędu Mieszkalnictwa i Rozwoju Miast ) overruled the decision of 18 July 2001 and declared the decision of 1996 null and void.

On 2 July 2003 the Supreme Administrative Court ( Naczelny S Ä… d Administracyjny ) set aside that decision.

On 10 December 2003 the President of the Office for Housing and Town Development upheld the Governor ’ s decision of 18 July 2003.

On 2 March 2005 the Warsaw Regional Administrative Court dismissed a further appeal lodged by the Garwolin City Office.

3. Proceedings for compensation

Between 1996 and 1999 the applicants lodged several applications with the Garwolin City Office seeking compensation for the expropriated plots of land. However, they submitted that the amounts offered by the municipality did not reflect the market value of the land.

On 23 February 2001 the applicants asked the Mayor of Garwolin District ( Starosta Powiatu Garwolinskiego – “the Mayor”) to determine the compensation to be paid for the expropriated plots.

On 24 April 2001 the Mayor gave a decision determining the amount of compensation at 103,106.29 Polish zlotys (PLN).

On 7 May 2001 the Garwolin City Office appealed against that decision.

On 4 June 2001 the Mazowiecki Governor stayed the proceedings until completion of the proceedings seeking to have the 1996 decision declared null and void (see above).

On 23 July 2005 the applicants asked the Garwolin City Office when they would receive the compensation. In reply they were informed that the decision of 24 April 2001 determining the amount of compensation was not final.

At the request of the applicants, on 3 October 2005 the Mazowiecki Governor ordered resumption of the proceedings.

The Garwolin City Office appealed to the Minister of Transport and Construction ( Minister Transportu i Budownictwa ).

On 17 February 2006 the Minister upheld the decision to resume the proceedings.

On 25 October 2006 the Supreme Administrative Court dismissed a further appeal by the Garwolin City Office.

On 25 April 2007 the Mazowiecki Governor overruled the de cision of the Mayor of 24 April 2001 and remitted the case, holding that the amount of compensation had not been determined correctly.

On 11 February 2008 the Mayor gave a new decision, determining the amount of compensation to be paid to the applicants at PLN 220,000.

The applicants appealed, submitting that that amount did not reflect the market value of the expropriated property.

On 28 July 2008 the Mazowiecki Governor overruled the Mayor ’ s decision on procedural grounds and remitted the case. The Governor noted that the Mayor had failed to summon to the administrative hearing the real ‑ estate appraiser who had prepared the valuation report.

On 28 January 2009 the Warsaw Regional Administrative Court dismissed a further appeal lodged by the applicants.

On 12 November 2009 the Mayor stayed the proceedings regarding compensation until the Polish Federation of Real Estate Appraisers had examined whether the two valuation reports submitted in the case had been prepared in accordance with the relevant regulations.

The proceedings were resumed on 27 May 2010.

On 6 December 2010 the Mayor again determined the amount of compensation to be paid to the applicants at PLN 329,957.

The Garwolin City Office appealed against that decision.

On 28 January 2011 the Mazowiecki Governor up held the decision of 6 December 2010.

The Garwolin City Office lodged a further appeal.

On 13 October 2011 the Warsaw Regional Administrative Court gave a judgment setting aside both decisions (of 6 December 2010 and 28 January 2011). The court held that the valuation report of 9 August 2010 on which the authorities had based their decisions had not been prepared correctly.

The applicants lodged a cassation appeal.

On 14 June 2013 the Supreme Administrative Court upheld the Warsaw Administrative Regional Court ’ s judgment.

The case file was returned to the Mazowiecki Governor on 22 August 2013. It was subsequently transferred to the Mayor on 26 August 2013.

On 25 June 2014 the Mayor gave another decision determining the amount of compensation to be paid to the applicants at PLN 280,000.

The Garwolin City Office appealed.

On 27 November 2014 the Mazowiecki Governor upheld the Mayor ’ s decision.

The Garwolin City Office appealed again.

On 8 July 2015 the Warsaw Regional Cou rt set aside both decisions (of 25 June and 27 November 2014). The court held that the valuation report of 9 August 2009 on which the authorities had based their decisions had not been prepared in accordance with the legal regulations in force.

On 12 October 2015 the applicants lodged another cassation appeal.

On 5 April 2017 the Supreme Administrative Court quashed the judgment of 8 July 2015 and remitted the case to the Warsaw Regional Administrative Court.

The proceedings are pending.

4. Length-of-proceedings complaints

The applicants made use of various remedies seeking to accelerate the administrative proceedings.

On 21 January 2006, in reply to a request submitted by the applicants, the Minister of Transport and Construction set a new time-limit for dealing with the case (as provided for by Article 36 § 1 of the Code of Administrative Proceedings).

Subsequently, on 29 June and 24 August 2010, 16 September and 28 November 2013 the Mayor informed the applicants that a decision could not be given within the statutory time-limit and set a new time-limit. On each occasion the Mayor fixed a new time-limit for dealing with the case.

On 6 December 2013 the applicants lodged a complaint with the Mazowiecki Governor under Article 37 § 1 of the Code of Administrative Procedure, complaining about the undue delay in conducting the proceedings (see below domestic law) .

On 29 January 2014 the Governor gave a decision holding that the applicants ’ complaint was not justified. The Governor held that after 26 August 2013 (the date when the case file had been transferred) (see above) there had been no undue delay in conducting the proceedings before the Mayor.

On 24 February 2014 the Mayor again set a new time-limit for dealing with the case.

On 30 December 2016 the applicants lodged a complaint under section 3 (6) of the 2004 Act (see Relevant domestic law part below) with the Supreme Administrative Court. They sought a finding that the length of the proceedings before the Supreme Administrative Court had been excessive and an award of PLN 2,000 to each of them by way of compensation. The applicants maintained that in the thirteen months since their cassation appeal had been lodged with the Supreme Administrative Court, that court had not undertaken any action in their case.

On 19 January 2017 the Supreme Administrative Court dismissed the applicants ’ complaint. The court concluded that the case had been examined in accordance with the date of registration. Since the applicants had not asked for a speedy examination of their case, the waiting time before the hearing date was set could not have been considered as an unjustified delay on the part of the court.

B. Relevant domestic law and practice

1. Code of Administrative Procedure

Article 35 of the Code of Administrative Procedure (“the Code”) lays down time-limits ranging from one month t o two 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. Article 37 § 1 provides that 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 with 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 be applied to prevent such delays in the future.

2. The 1995 Act

The Supreme Administrative Court Act of 11 May 1995 (“the 1995 Act”) entered into force on 1 October 1995. Section 17 of the Act provided that a party to administrative proceedings could, 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 1995 Act provided:

“If a complaint alleging inactivity on the part of an administrative authority is well ‑ founded, the Supreme Administrative Court shall order 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 section 30 of the 1995 Act, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity was legally binding on the authority concerned. If the authority did not comply with the decision, the court could, under section 31 of the Act, impose a fine on it and could itself give a ruling on the right or obligation in question.

Under the same provision, a party to the proceedings who sustained damage as a result of a failure on the part of the administrative body to act in compliance with the judgment of the Supreme Administrative Court given under section 17 of the Act, was entitled to claim compensation from the administrative authority concerned, in accordance with the principles of civil liability set out in the Civil Code.

3. The 2002 Act

The 1995 Act was repealed and replaced by the Administrative Courts Act of 30 August 2002 ( Prawo o post ę powaniu przed s ą dami administracyjnymi ) (“the 2002 Act”), which entered into force on 1 January 2004. Section 3(2 )( 8) of the 2002 Act contains provisions analogous to section 17 of the 1995 Act. A party to administrative proceedings can lodge a complaint with an administrative court alleging inactivity on the part of an authority responsible for issuing an administrative decision.

Section 149 in its original wording provided:

“If the court finds a complaint alleging inactivity on the part of an authority well ‑ founded in cases described in section 3(2)(1) to (14), it shall order the authority concerned to issue a decision within a prescribed time-limit, or to perform a specific act, or to confirm or recognise a right or obligation provided for by law.”

Section 154 in its original wording, in so far as relevant, provided

“1. In the event of an authority ’ s failure to implement a judgment allowing a complaint about inactivity ... a party to the proceedings, after submitting a written request to the authority concerned, may lodge a complaint in that respect asking for a fine to be imposed on that authority.

2. In situations described in subsection (1) above, a court may decide about the existence or non-existence of a right or obligation, if it is possible in view of the type of matter concerned and its factual and legal circumstances.

...”

4. Relevant amendments

(a) Amendments of 2011

In 2011 the Code of Administrative Procedure and the 2002 Act were amended on several occasions. The amendments entered into force on 11 April, 17 May and 12 July 2011.

( i ) Code of Administrative Procedure

In particular, the amended Article 37 § 1 of the Code of Administrative Procedure stipulates that a party to administrative proceedings may lodge a complaint not only about an authority ’ s failure to handle the case within the time ‑ limits referred to in Articles 35 and 36 (as then provided for), but also about undue delay in conducting the proceedings ( przewlekÅ‚e prowadzenie postÄ™powania ). Pursuant to Article 37 § 2, when examining the complaint, the higher authority also holds whether the inactivity or undue delay was in flagrant breach of the law ( ra żą ce naruszenie prawa ).

(ii) the 2002 Act

In particular, under the amended section 149 of the 2002 Act, if the Administrative Court considers a complaint to be well-founded, it must also determine whether the inactivity or undue delay was in flagrant breach of the law. A new subsection 149(2) was also introduced, providing that if a court allowed a complaint alleging inactivity, it could also, either of its own motion or at a party ’ s request, impose on the responsible authority a fine of up to ten times the average monthly public-sector salary.

(b) Amendments of 2015

The 2002 Act was amended again on 9 April 2015 (the amendments entered into force on 15 August 2015). The changes were aimed mainly at simplifying proceedings before the administrative courts. In particular, if an administrative court considers a complaint alleging inactivity well-founded, in addition to ordering an administrative authority to act in a certain manner, it can also issue a decision on the substance of the case (section 149(1(b)). In addition, the administrative court may not only fine the administrative authority on account of its inactivity, but may also order it to pay compensation directly to an applicant in an amount of up to five times the average monthly public-sector salary (section 149(2)) [1] . A similar solution is provided for if an administrative authority fails to implement a court ’ s judgment allowing a complaint alleging inactivity (section 154(2) and 154(7)).

(c) Amendments of 2017

The Code of Administrative Procedure was amended on 7 April 2017 (the amendments entered into force on 1 June 2017 and concern only the proceedings instituted after that date). Several new procedures aiming at simplifying and accelerating the proceedings were introduced, in particular: a “silent procedure” ( milcz ą ce za ł atwienie sprawy ), a simplified procedure (Articles 35 § 3 (a), Articles 163b-163g.). Moreover, the Code was amended to include legal definitions of inactivity ( bezczynno ść ) (Article 37 § 1 (1)) and excessive length ( przewlek łość ) (Article 37 § 1 (2)). The complaint about the authority ’ s failure to comply with the time-limits provided in Article 37 was titled “request for acceleration” ( ponaglenie ). Pursuant to the amended provisions a higher authority is now obliged to examine a party ’ s request for acceleration within seven days.

5. Civil Code

Article 417¹ § 3 of the Civil Code en tered into force on 1 September 2004. It provided for a possibility of lodging a compensation claim for damage resulting from the unreasonable length of administrative proceedings, after it had been formally determined in the relevant proceedings that there had been an unlawful failure to issue an administrative decision within the relevant time-limits.

6. The 2004 Act

The relevant domestic law and practice concerning remedies for excessively lengthy judicial proceedings, in particular the applicable provisions of the Law of 17 June 2004 on the right to have a case examined in judicial proceedings without undue delay ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”), are presented in the Court ’ s judgment in the case of Rutkowski and Others v. Poland (nos. 72287/10, 13927/11 and 46187/11 , §§ 75-92, 7 July 2015) and also in decision in Za ł uska , Rogalska and Others v. Poland ( dec. ), nos. 53491/10 and 72286/10, §§ 19-22, 20 June 2017.

COMPLAINT S

1. The applicant s complain under Article 6 of the Convention of the excessive length of the administrative proceedings in their case.

2. They further allege a breach of Article 13, on the grounds that the remedies against the length of proceedings were not effective in their case.

3. The applicants also complain under Article 1 of Protocol No. 1 of their prolonged inability to receive compensation for the expropriated plots.

QUESTIONS TO THE PARTIES

1. Having regard to the Court ’ s case-law on the “reasonable time” requirement laid down in Article 6 § 1 has there been a violation of this provision in the applicant s ’ case ?

2. Having regard to the facts of the present case, the principles established by the Court in respect of an “effective remedy” and the characteristics of redress required at national level for a violation of the right to a hearing within a reasonable time, can the combination of remedies under the Code of Administrative Procedure (Article 37), the Administrative Courts Act of 2002 (sections 149 and 154) and the 2004 Act be regarded as “effective” for the purposes of Article 13 of the Convention (see, in particular, Kudła v. Poland , §§ 157-159; Scordino (no. 1) v. Italy, [GC] no. 36813/97, §§ 195-216, with further references and Rutkowski and Others v. Poland (nos. 72287/10, 13927/11 and 46187/11, §§ 172-175 , 7 July 2015)?

3. Does the length of the administrative proceedings in the present case also give rise to an interference with the applicant s ’ right to the peaceful enjoyment of their possessions, in breach of that provision (compare Lyubomir Popov v. Bulgaria , no. 69855/01, §§ 119-124, 7 January 2010)?

[1] These sums are as follows: up to PLN 20,236 (2017); PLN 19,498 (2016); PLN 18,917 (2015).