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FOURTH
SECTION
CASE OF KRYSZKIEWICZ v. POLAND
(Application
no. 77420/01)
JUDGMENT
STRASBOURG
6
March 2007
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 Kryszkiewicz v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 13 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 77420/01) 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, Mr Ryszard Kryszkiewicz (“the applicant”),
on 1 August 2000.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- On
29 November 2005 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings to
the Government. Applying Article 29 § 3 of the
Convention, it decided to rule on the admissibility and merits of the
application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1945 and lives in Warsaw, Poland.
- In
1975 a plot of land located in Warsaw, owned by the applicant's
mother, was expropriated for the purpose of building an apartment
block. However, the buildings were constructed only on a part of the
plot and the rest remained unused.
- On
5 July 1992 the applicant's father and his brother lodged an
application for restitution of the expropriated land with the Warsaw
District Office (Urząd Rejonowy) under section 69 of the
Law of 29 April 1985 on the Land Administration and
Expropriation (Ustawa o gospodarce gruntami i wywłaszczaniu
nieruchomości). This section stipulated that the former
owner (or his legal successor) of the expropriated property could
lodge an application for restitution provided that the property no
longer served a purpose specified in the expropriation decision.
Subsequently, the applicant lodged another application for
restitution of the property.
- The
applicant's mother died and on 23 May 1994 the Warsaw District Court
declared the applicant and his brother to be her only heirs.
- The
authorities failed to take any steps until 1994 when they requested
information from several other institutions as to the legal situation
of the property. It appears that the applicant repeatedly requested
information about the course of the proceedings.
- In
1995 the Warsaw Bemowo Municipal Office (Urząd Gminy)
informed the applicant that the 1975 decision on expropriation was
still in force and was final.
- On 25 January 1996 the Head of the Warsaw District
Office (Kierownik Urzędu Rejonowego)
stayed the proceedings and informed the applicant that he
could institute another set of proceedings concerning the division of
the property in question.
- Subsequently, the applicant instituted such
proceedings in which he sought to divide the expropriated property.
It appears that the first decision in this set of proceedings was
given on 23 June 1998 dismissing the request. Finally, on 30
September 1998 the Warsaw Self Government
Board of Appeal (Samorządowe Kolegium
Odwoławcze)
discontinued the proceedings.
- On
9 November 1998 the applicant requested the resumption of the
proceedings concerning restitution of the property.
- On
7 October 1999 the Mayor of the Warsaw District (Starosta Powiatu
Warszawskiego) resumed the proceedings and on the same date he
discontinued them considering that the matter was res judicata.
- The
applicant appealed.
- On
18 November 1999 the Warsaw Self Government
Board of Appeal allowed the appeal, quashed the decision and remitted
the case.
- Since
the Mayor failed to take any decision the applicant lodged on
1 February 2001 a complaint about his inactivity with the Warsaw
Self Government Board of Appeal. The Board
failed to take any action. On 30 January 2002 the applicant
complained about the inactivity of both authorities to the Supreme
Administrative Court (Naczelny Sąd Administracyjny).
- On
10 June 2002 the Mayor of the Warsaw District gave a decision in
which it allowed the applicant's action and returned to him and to
his brother the property in question.
- On
18 June 2002 the Supreme Administrative Court examined the
applicant's complaint about the inactivity of the administrative
authorities and dismissed it, inter alia, in view of the
Mayor's decision of 10 June 2002.
- The
Warsaw Bemowo Mayor (Burmistrz) lodged an appeal against
the decision of 10 June 2002 with the Mazowiecki Governor (Wojewoda
Mazowiecki).
- On
11 October 2002 the Mazowiecki Governor allowed the appeal, quashed
the impugned decision and remitted the case to the Warsaw Bemowo
Mayor.
- The
applicant lodged a complaint against this decision, but on 19 March
2004 the Regional Administrative Court (Wojewódzki Sąd
Administracyjny) dismissed it. The applicant's cassation appeal
was dismissed by the Supreme Administrative Court on 26 October
2005.
- In
view of the length of the proceedings before the administrative
courts, on 7 June 2004, the applicant made a complaint about a breach
of the right to a trial within a reasonable time under the 2004 Act.
On 30 September 2005 the Supreme Administrative Court dismissed
his complaint finding that the length of the proceedings before it
did not exceed a reasonable time.
- The
case is pending before the Warsaw Bemowo Mayor.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the 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.
- The Court notes that the proceedings started on 5 July
1992 when the applicant's father and brother filed a request for
restitution of the property. However, the period to be taken into
consideration began only on 1 May 1993, when the recognition by
Poland of the right of individual petition took effect. Nevertheless,
in assessing the reasonableness of the time that elapsed after that
date, account must be taken of the state of proceedings at the time.
The period in question has not yet ended. It has thus lasted 13 years
and 9 months.
A. Admissibility
- The
Court notes that the application is not manifestly ill founded
within the meaning of Article 35 § 3 of the
Convention. It further 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).
- The
Court has frequently found violations of Article 6 § 1
of the Convention in cases raising issues similar to the one in the
present case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case law on the subject, the Court
considers that in the instant case the length of the proceedings was
excessive and failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant did not claim any particular sum in respect of pecuniary or
non pecuniary damage. However, he submitted that he had suffered
pecuniary damage as well as stress and frustration due to the
protracted length of the proceedings and the impossibility to have
his property returned to him.
- The
Government contested the applicant's claim in respect of pecuniary
damage. With regard to non pecuniary damage they asked the Court
to rule that the finding of a violation constituted in itself
sufficient just satisfaction. Alternatively, the Government invited
the Court to make an award of just satisfaction on the basis of its
case law in similar cases and with reference to national
economic conditions.
- 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 9,000 in respect of
non pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 1,000 Polish zlotys (PLN) for the costs
and expenses incurred before the domestic courts.
- The
Government contested the claim.
- According
to the Court's case law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
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.
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 remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of 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 9,000
(nine thousand euros) in respect of non pecuniary damage, to be
converted into Polish zlotys at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amount 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 6 March 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules
of Court.
T.L. Early Nicolas Bratza
Registrar President
