Stefan and Zofia JAKUBISIAK v Poland - 51542/09 [2011] ECHR 2098 (29 November 2011)

judgment ( Tahsin Acar v. Turkey , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03, 18 September 2007). . The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 V; and Majewski v. Poland , no. 52690/99, §§ 38-41, 11 October 2005). Having regard to the nature of the admissions contained in the Government’s declaration, as well as the compensation proposed in the amount of PLN 13,100 to be awarded jointly to both applicants – which is consistent with the amounts awarded in prior, similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)). . Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine ). Accordingly, it should be struck out of the list. Since the proceedings concerned are still pending before the domestic courts, the Court’s strike-out decision is without prejudice to use by the applicants of other remedies to obtain redress for any delay in the proceedings which may occur after the date of this decision. B. Remaining complaints 1. Complaint under Article 6 § 1 of the Convention about the alleged unfairness of the proceedings In so far as the applicants alleged unfairness of the main proceedings in which they are involved, relying on Article 6 § 1 of the Convention, it should suffice to note that the impugned proceedings are still pending. Consequently, this complaint must be declared inadmissible for non exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention. 2. Complaint under Article 13 of the Convention about the lack of an effective remedy The applicants complained under Article 13 of the Convention that they had had no “effective remedy” against the excessive length of the proceedings. Article 13 provides: “ 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.” In his regard, the Court recalls that it has already found that the 2004 Act provides for an effective remedy in respect of the excessive length of proceedings (see Charzy ń ski v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005 V; Figiel v. Poland (no. 1) , no. 38190/05, §§ 25-30, 17 July 2008; Figiel v. Poland (no. 2) , no. 38206/05, §§ 29-34, 16 September 2008). It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 3. Complaint about the alleged lack of jurisdiction of the Szczecin Court of Appeal The applicants further complained under Article 13 that the Szczecin Court of Appeal had not had the competence to examine their appeals against decisions of the Koszalin Regional Court . The Court considers that the complaint should be dealt with from the standpoint of Article 6 § 1 of the Convention. As the jurisdiction of the Szczecin Court of Appeal to deal with appeals against decisions of the Koszalin Regional Court was explicitly foreseen by the provisions of the domestic law, in force in the relevant period, this part of the application is manifestly ill-founded. Consequently, it is inadmissible and must be rejected under Article 35 §§ 3 and 4 of the Convention. 4. Complaint under Article 1 of Protocol No. 1 The applicants further complained under Article 1 of Protocol No. that the domestic court had unfairly refused to declare the extinguishment of the compulsory mortgage imposed on their property as security for the plaintiff’s claims . Article 1 of Protocol No. 1 provides: “ 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.” 54. The Court notes that on 8 June 2010 the Koszalin Regional Court declared that the compulsory mortgage on the applicants’ property had become extinguished and that this decision has subsequently become final. It therefore considers that the applicants can no longer claim to be the victims, within the meaning of Article 34 of the Convention, of a violation of the invoked provision. In so far as the applicants’ complaint may be understood as their grievance about the delay in obtaining a decision declaring the extinguishment of the mortgage, which in their opinion hindered them in the use of their property, the Court observes that the applicants first requested the court to issue such a decision on 22 October 2009 and that the decision in question was given on 8 June 2010. Given the relatively short time span between the filing of the applicants’ request and the delivery of the decision, the Court considers that the applicants failed to convincingly explain how the delay in obtaining the requested decision had hindered them in the exercise of their property rights. Moreover, the Court observes that the delivery of the requested decision could not – and, in fact, did not – eliminate the risk of the applicants’ land being put up for auction, as such risk had resulted from the seizure of the land, carried out by the court bailiff in the enforcement proceedings instituted against the applicants in 2006 and still pending against them due to their continuing failure to discharge their debt. Lastly, the Court observes that neither the compulsory judicial mortgage nor the continuing seizure of the applicants’ land could prevent the applicants from selling their land or otherwise using or disposing of their property. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 6 § 1 of the Convention concerning the length of the proceedings , and of the modalities for ensuring compliance with the undertakings referred to therein; Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention ; Declares the remainder of the application inadmissible . Fatoş Aracı George Nicolaou Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII