TRZASKALSKA v. POLAND - 34469/05 [2009] ECHR 1975 (1 December 2009)

JUDGMENT STRASBOURG December 2009 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Trzaskalska v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Nicolas Bratza, President, Lech Garlicki, Giovanni Bonello, Ljiljana Mijović, Päivi Hirvelä, Ledi Bianku, Nebojša Vučinić, judges, and Lawrence Early, Section Registrar , Having deliberated in private on 10 November 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE The case originated in an application (no. 34469/05) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Janina Trzaskalska (“the applicant”), on 29 August 2005 . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs . On 14 November 2007 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE The applicant, Ms Janina Trzaskalska, is a Polish national who was born in 1955 and lives in Częstochowa. She owned a plot of land which was expropriated by a decision of 5 May 1988 for the purposes of building a housing estate. By virtue of the same decision the applicant received compensation for one plot amounting to 1,121.299 old Polish zlotys (PLZ). By a supplementary decision of 8 June 1988 the Częstochowa Municipal Office fixed the amount of compensation for another plot at PLZ 560,649. On 29 January 1990 and 19 April 1990 the Municipal Office fixed the amounts of compensation for two remaining expropriated plots at PLZ 236,073.600 and PLZ 119,817.600, respectively. On 30 January 1997 the applicant filed a motion with the President of the Urban Development Office to declare the expropriation decision of 1988 null and void. She claimed that the compensation was too low, as the authorities had calculated it on the basis of agricultural land, whereas after the decision to build a housing estate the land should have been regarded as building land. The applicant invoked the relevant provisions of the Code of Administrative Procedure, on the basis of which land loses its agricultural nature after it has been expropriated for building purposes. The applicant's motion was forwarded to the Śląsk Governor on 25 January 1999. As the applicant received no reply to her original motion, on 6 October 1998 she filed the same motion with the Częstochowa Governor. The Governor informed the applicant by a letter of 8 December 1998 that in view of the need to obtain an expert assessment of the land's value, the case could be dealt with in the first quarter of 1999. On 13 April 1999 the Śląsk Governor's Office notified the applicant that proceedings to declare the contested decision null and void had been instituted. On 26 July 1999 the Śląsk Governor declared the expropriation decision of 5 May 1988 and the supplementary compensation decision of 8 June 1998 null and void as having been issued in flagrant breach of the law. On 20 October 1999 the Częstochowa Municipal Office instituted administrative proceedings in order to fix the amount of compensation for the expropriation of the applicant's land. On 20 November 1999 the Municipal Office contacted five experts, asking them to quote by 5 December 1999 a price for drawing up an evaluation report in the applicant's case, and informed the applicant that her case would be dealt with within 14 days from the submission of the evaluation report. Subsequently, S. H. was appointed as an expert. As he resigned on 1 February 2000, A. G. was assigned the case. On 17 February 2000 the applicant was notified that the time-limit for the examination of the case had been set for 31 March 2000. On 13 March 2000 A. G. submitted his evaluation report, wherein he assessed the value of the real estate at PLN 63,000 and the amount of compensation which had already been paid, re-assessed against inflation, at PLN 46,980. On 28 March 2000 the evidentiary proceedings were terminated and the applicant was invited to read the file and submit her comments. On 4 April 2000 the applicant challenged the evaluation report. On 20 April 2000 the Mayor awarded the applicant compensation for the expropriated plot in the amount of PLN 63,000, reduced by the amount of PLN 46,980 already paid to her by virtue of the decision of 5 May 1998. The applicant appealed on 7 May 2000, contesting the amount of compensation. She argued that she had been granted PLN 17 (EUR 4.50) per square metre, whereas the average price of land in the neighbourhood at the material time was PLN 32 per square metre. On 5 June 2000 the Śląsk Governor's Office quashed the decision and remitted the case for re-examination, having noted that the first-instance authority had wrongly fixed the amount of compensation according to the regulations which had been in force until 15 February 2000. On 28 June 2000 A. G. was ordered to submit a new evaluation report, which he did on 2 August 2000. The value of the land was assessed at PLN 1,767,388. On 9 August 2000 the Municipal Office scheduled a hearing for 23 August 2000 and summoned the applicant and A. G. The applicant failed to attend it. On 28 August 2000 she justified her absence at the hearing and asked for another hearing to be scheduled. The date was set for 22 September 2000. The time-limit for a decision to be given in the case was extended until 30 September 2000. On 12 September 2000 the applicant submitted additional pleadings and requested that certain evidence be taken. The hearing was held on 22 September 2000. The applicant again challenged the report and submitted further documents as evidence. On 26 September 2000 the applicant asked the Municipal Office to extend the time-limit for deciding her case as she had ordered a private expert opinion which would be submitted by the end of October 2000. On 5 October 2000 the Office extended the time-limit until 28 November 2000. On 6 November 2000 the applicant submitted a report prepared by Z. S., who assessed the value of the land at PLN 2,933.000. In view of the discrepancies between the expert opinions, on 16 November 2000 the Municipality requested the Silesian Association of Property Experts ( Śląskie Stowarzyszenie Rzeczoznawców Majątkowych ) to assess those two expert opinions. On 31 January 2001 the Association gave its opinion to the effect that the conclusions reached by Z. S. were correct, notwithstanding the fact that certain amendments to the report had to be made. On 16 May 2001 the applicant was ordered to submit an amended report by Z. S within seven days, on pain of a decision being given on the basis of the available evidence. The applicant failed to comply with the order. On 7 August 2001 a new expert opinion was ordered. On 8 October 2001 F.Ś. submitted a new evaluation report wherein he considered that the value of the land on the day of expropriation amounted to PLZ 2,346,616 (before the revaluation of the currency). On 30 October 2001 the Municipal Office scheduled a hearing for 9 November 2001. The applicant attended it. The Office heard experts Z. S. and F.Ś., who upheld the conclusions of their evaluation reports. Z. S. was granted seven days to supplement his report according to the guidelines of the Silesian Association of Property Experts (see paragraph 19 above). However, he failed to do so. On 11 December 2001 the applicant again read the case file and declared that she would present her position in writing by 20 December 2001. On 19 December 2001 she submitted pleadings in which she again challenged the expert opinions. In her opinion, neither of the experts had taken into account decisions on compensation issued for her neighbours. By a decision of 16 January 2002 the Mayor fixed the amount of compensation at PLZ 22,346,616 and granted the applicant compensation in the amount of PLN 21,375 (EUR 5,600) which constituted the difference between the amount of compensation fixed and that already paid in the past. The Mayor refused to admit the report of Z. S. as evidence, having regard to the fact that it had not been supplemented as requested. On 6 February 2002 the applicant appealed, arguing that the amount was insufficient. At the same time she submitted the supplement to the expert opinion. On 15 February 2002 the appeal was forwarded to the Śląsk Governor. The Governor quashed the decision on 9 April 2002 and remitted the case for re examination. The Mayor appealed to the Supreme Administrative Court. On 8 August 2002 the Śląsk Governor filed with the Supreme Administrative Court his pleadings in reply. By a judgment of 14 June 2004 the Supreme Administrative Court upheld the Governor's decision to quash the first-instance decision given by the Mayor. The judgment became final on 14 September 2004. On 16 November 2004 the Municipal Office informed the applicant that expert opinions had again been ordered in her case. On 5 January 2005 an expert was appointed and asked to prepare an evaluation report by 5 February 2005. He submitted his report on 7 February 2005. On 11 February 2005 a hearing was scheduled for 2 March 2005. On 2 March 2005 a hearing was held. By a decision of 15 March 2005 the Mayor fixed the amount of compensation to be paid to the applicant at PLN 81,240 It considered that the amount of compensation already paid was PLZ 51,490.34. Thus, the amount to be paid to the applicant was PLN 29,749.66. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Inactivity on the part of the administrative authorities 25. The relevant domestic law concerning inactivity on the part of administrative authorities is set out in Grabiński v. Poland , no. 43702/02, §§ 60-65, 17 October 2006. B. Relevant provisions of the Code of Administrative Procedure Under Article 65 § 1, if a motion has been submitted to an administrative authority lacking jurisdiction to examine it, the authority is obliged to forward it without delay to the authority competent to deal with the case. . Article 156 of the Code provides that 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 the law. If the flaw that taints the challenged decision is of a substantive nature, namely, if the decision had been given without a legal basis or in flagrant violation of the law, the administrative authority shall 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 against to the administrative courts. C. Relevant provisions of the land expropriation legislation On 1 January 1998 the Land Administration Act of 21 August 1997 ( Ustawa o gospodarce nieruchomościami – “the 1997 Land Administration Act”) entered into force. Pursuant to section 112 of that Act, expropriation consists in taking away, by way of an administrative decision, of ownership or of other rights in rem . Expropriation can be carried out where public interest aims cannot be achieved without restriction of these rights and where it is impossible to acquire these rights by way of a civil law contract. . Under section 113 an expropriation can only be carried out for the benefit of the State Treasury or of the local municipality. In accordance with section 128 § 1 of the Act, expropriation can only be carried out against payment of compensation corresponding to the value of the property right concerned. D. Remedy against the excessive length of judicial proceedings The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII, and the judgment in the case of Krasuski v. Poland , no. 61444/00, §§ 34-46, ECHR 2005-V. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS The applicant first complained that the proceedings in her case were unfair. In particular, she alleged errors of fact and law committed by the authorities. She complained that the decision of 1988 was erroneous and that in the proceedings terminated by the decision of 25 March 2005 the administrative bodies failed to assess the evidence correctly and wrongly applied provisions of domestic law. She alleged a breach 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 fair ... hearing ... by [a] ... tribunal...” However, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, with further references). In the present case the applicant did not allege any particular failure to respect her right to a fair hearing on the part of the relevant courts. Indeed, her complaints are limited to contesting the result of the proceedings. Assessing the circumstances of the case as a whole, the Court finds no indication that the impugned proceedings were conducted unfairly. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS The applicant complained that the length of the administrative proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “ In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” The Government contested that argument. They argued that the proceedings concerned in fact three sets of proceedings, not one. The first set of proceedings started when the applicant submitted her first motion with the President of the Urban Development Office (see paragraph 6 above). However, he was not competent to examine the case. The applicant's motion was therefore forwarded to the Śląsk Governor on 27 January 1999. The second set of proceedings, in which the applicant sought to have the decision on the amount of compensation given in 1988 declared null and void, started on 6 October 1998 when the applicant's new motion was submitted to the Governor (see paragraph 7 above) and ended on 26 July 1999 by a decision declaring the 1988 decision null and void (see paragraph 9 above). In the third set of proceedings the applicant sought that the amount of compensation be fixed. They started on 20 October 1999 when the Częstochowa Municipal Office instituted, of its own motion, the proceedings concerning the amount of compensation and ended on 15 March 2005. The applicant contested that argument. The Court observes that the dates of the beginning and end of the proceedings should be established with due regard being had to the essential purpose which the applicant wished to achieve. The Court notes that the applicant's objective was to have the amount of the compensation paid to her in 1988 re-determined. That was impossible as long as the 1988 decision on compensation remained valid. She therefore had to request first that that decision be declared null and void, as provided for by Article 156 § 1 (2) of the Code of Administrative Procedure (see paragraph 27 above), as the result of that request had a decisive impact upon her claim to have the compensation re-calculated (see J. S. and A. S. v. Poland , no. 40732/98, § 49, 24 May 2005, mutatis mutandis ). The applicant tried to institute the relevant proceedings by submitting, in January 1997, her motion to the Office of Urban Development. The Court notes the Government's argument that this authority lacked competence to examine the case. However, it also observes that under Article 65 § 1 of the Code of Administrative Procedure, that authority was obliged to forward her motion to the competent body without delay. The Office ultimately complied with this obligation, but only two years later. In the meantime, in the absence of any reaction from the Office, the applicant submitted a new motion to the Governor. The Court therefore considers that in the absence of an appropriate reaction on the part of the Office, the proceedings should be deemed to have started in January 1997. Subsequently, in July 1999 the applicant obtained a declaratory decision that the 1988 decision on compensation was null and void. That decision gave rise, under the provisions of the Land Administration Act, to the authorities' obligation to determine the amount of compensation for the expropriation to be paid to her (see paragraphs 28 – 29 above). Indeed, three months later, in October 1999, the authorities instituted the proceedings for the determination of the new amount of their own motion. In these circumstances, the Court is of the view that all three sets of proceedings relate to the same issue, namely the applicant's attempts to obtain compensation and that therefore their duration should be examined as a whole ( Cravcenco v. Moldova , no. 13012/02, § 49, 15 January 2008; Boboc v. Moldova , no. 27581/04, § 27, 4 November 2008). The proceedings commenced on 30 January 1997 and ended on 15 March 2005, when the amount to be paid to her was ultimately determined by a final decision. They thus lasted eight years and one month for three levels of jurisdiction. A. Admissibility The Government raised a preliminary objection that the applicant had not exhausted the domestic remedies available to her under Polish law, as required by Article 35 § 1 of the Convention. It was open to her to complain, under Article 37 of the Code of Administrative Procedure or under Article 17 of the Supreme Administrative Court Act 1995, to that court about the inactivity of the administrative authorities and to higher administrative authorities about the inactivity of the lower bodies. The applicant failed to do so. They maintained that the applicant had failed to lodge a compensation claim with a civil court in order to seek redress for the alleged damage which had resulted from the inactivity of the administrative authorities. They relied on Article 417¹ § 3 of the Civil Code. In addition, they maintained that the applicant could have brought an action for damages under Article 417 of the Civil Code. The Government further argued that, with respect to the proceedings before the Supreme Administrative Court conducted after 17 September 2001, it had been open to the applicant to file a complaint under the 2004 Act. The applicant contested the Government's argument. The Court first observes that admittedly the applicant did not complain of inactivity on the part of the administrative authorities in compliance with the law. However, the Court notes that the length of the proceedings cannot be said to have originated in the inactivity of the administrative authorities. There were no significant delays which could be construed as inactivity on the part of the authorities as understood under the relevant provisions of domestic law. The Court notes that the applicant submitted her application in January 1997 and later on, having regard to the absence of a response on the part of the authorities, she chose to renew her motion (see paragraph 36 above). Throughout the proceedings the authorities often took various procedural steps. Three decisions on the merits of the case were issued. Two of these decisions were subsequently quashed by the appellate authorities as not being in conformity with the law and the case was remitted. Hence, the duration of the proceedings should be attributed to a pattern of taking ineffectual procedural measures and issuing decisions flawed with various legal shortcomings. The Court is of the view that in the circumstances of the case a complaint about inactivity did not offer the applicant any reasonable prospects of success (see Stevens v. Poland , no. 13568/02, judgment of 26 October 2006, §§ 44 46 and Kamecki and Others v. Poland , no. 62506/00, § 42, 9 June 2009 ). Moreover, the longest delay in the case occurred between 9 April 2002 and 14 June 2004, when the applicant's appeal against a decision given on the former date was pending before the Supreme Administrative Court. No remedy in respect of the length of judicial proceedings was available to the applicant at that time ( Helwig v. Poland , no. 33550/02, § 44, 21 October 2008). Regarding the subsequent period after 17 September 2004 when the 2004 Act came into force, the Court notes that that Act provides for a complaint about the unreasonable length of judicial proceedings, whereas proceedings before administrative authorities other than administrative courts are not covered by its provisions. After that date the proceedings were not pending before any administrative court. Hence, the remedy concerning the excessive length of judicial proceedings which became available as from that date was not available to the applicant. With regard to the Government's submissions that the applicant had failed to institute proceedings for damages under Article 417¹ § 3 or Article 417 of the Civil Code, the Court observes that according to Article 417¹ § 3 of the Civil Code no claim for damages resulting from the unreasonable length of administrative proceedings may arise unless it has been formally determined that there was an unlawful failure to issue an administrative decision within the relevant time-limits. The Court also notes that the domestic case-law relied on by the Government does not constitute evidence of sufficiently established judicial practice to show that a claim for compensation based on Article 417¹ § 3 of the Civil Code was an effective remedy, and they have thus failed to substantiate their contention (see Boszko v. Poland , no. 4054/03, § 35, 5 December 2006; Grabiński v. Poland , no. 43702/02, § 74, 17 October 2006; and Pióro and Łukasik v Poland , no. 8362/02, § 35, 2 December 2008) . Accordingly, the Court concludes that in the circumstances of the case seen as a whole the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. The Court further notes that this complaint is not manifestly ill founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). As regards the administrative proceedings in the present case, the Court, having regard to the evidence available, does not find it established that the applicant contributed to the length of the proceedings. The Court acknowledges that the applicant lodged several appeals and complaints in the course of the impugned proceedings. However, in this connection the Court notes that following her appeals two decisions on the merits were quashed by the higher authorities and remitted for re-examination. Given that a remittal of a case for re-examination is usually ordered as a result of errors committed by the lower courts, the Court considers that the repetition of such orders within one set of proceedings discloses a deficiency in the procedural system as applied in the present case (see, mutatis mutandis , Wierciszewska v. Poland , no. 41431/98, § 46, 25 November 2003). Furthermore, the Mayor's appeal against the Governor's decision ordering that the Mayor's decision be quashed was dismissed by the Supreme Administrative Court as unfounded. Moreover, the time-limits set to deal with the case were on many occasions prolonged, the authorities not being able to finish the examination of the case by the dates which had been fixed for that purpose. The foregoing considerations are sufficient to enable the Court to conclude that the applicant's case has not been heard within a reasonable time. There has accordingly been a breach of Article 6 § 1. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.1 TO THE CONVENTION The applicant complained that her property rights had been violated as a result of the excessive duration of the administrative proceedings, during which she had been obliged to bear the costs of the expert opinions and was deprived of fair compensation for the expropriated land. The Court considers 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. It must therefore be declared admissible. Having regard to the circumstances of the case seen as a whole and to its finding under Article 6 § 1 (see paragraph 50 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 1 of Protocol No. 1 (see Zanghì v. Italy , judgment of 19 February 1991, Series A no. 194-C, p. 47, § 23). IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION The applicant also alleged a breach of Article 13 of the Convention in that she had no effective domestic remedy in respect of the protracted length of proceedings in her case. Article 13 reads: Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. The Government contested that argument. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time. The Court has already found that the remedy under the 2004 Act is effective in respect of a complaint about length of judicial proceedings (see, Figiel v. Poland (no. 1) , no. 38190/05, 17 July 2008) and that under the Polish administrative law there are remedies available concerning excessive length of administrative proceedings ( Bukowski v. Poland (dec.), no. 38665/97, 11 June 2002). It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage The applicant claimed 250,000 PLN (62,000 EUR) in respect of pecuniary and non-pecuniary damage. The Government contested the claim. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 2,400 in respect of non-pecuniary damage. B. Costs and expenses The applicant also claimed 10,000 PLN (2,500 EUR) for costs and expenses incurred before the domestic courts and for those incurred before the Court. The Government contested the claim. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 500 for the proceedings before the Court. C. Default interest The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY Declares the complaint concerning the excessive length of the proceedings and the related complaint under Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Declares that it is not necessary to examine the applicant's complaint under Article 1 of Protocol No. 1 to the Convention; Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,400 (two thousand four hundred euros) in respect of non-pecuniary damage and EUR 500 (five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 1 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Lawrence Early Nicolas Bratza Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII