SIERMINSKI v. POLAND - 53339/09 - Chamber Judgment [2014] ECHR 1348 (02 December 2014)

In the case of Siermiński v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ineta Ziemele, President,
          George Nicolaou,
          Ledi Bianku,
          Nona Tsotsoria,
          Zdravka Kalaydjieva,
          Krzysztof Wojtyczek,
          Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 13 November 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 53339/09) 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 Andrzej Siermiński (“the applicant”), on 29 September 2009.

2. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs.

3. On 18 September 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1941 and lives in Kadzidło.

5. The applicant’s parents owned land within the administrative borders of Warsaw. It was expropriated by way of an administrative decision issued on an unspecified date under the provisions of the Decree on Ownership and Use of Land in Warsaw of 26 October 1945. In February 1949 the applicant’s legal predecessor requested to be granted a right of perpetual use (użytkowanie wieczyste) for another plot of land situated in Warsaw as compensation provided for by the provisions of the 1945 Decree. His request was dismissed by way of an administrative decision given in 1961 and ultimately upheld in 1968.

A judicial decision given in 1975 confirmed that the applicant was his parents’ general heir.

6. On 16 July 1993 the applicant requested that the decision given in 1961 be declared null and void.

7. On 20 September 1994 the Minister of Construction and Land Planning (Minister of Gospodarki Przestrzennej and Budownictwa) gave a decision. It noted that in 1961 the authorities had failed to examine whether the substantive conditions for granting the owners the right of perpetual use of the land specified in section 7 of the 1945 Decree (see paragraph 46 below) had been met at that time. He declared, referring to Article 156 § 1 item 2 of the Code of Administrative Procedure (CAP) (see paragraph 39 below), that decision null and void in so far as it related to the part of the land concerned which was used as family gardens. In so far as this decision related to the part of the land which had already been used for construction purposes, he considered that the contested decision had given rise to irrevocable legal consequences within the meaning of Article 156 § 2 of the CAP (see paragraph 41 below). Therefore under Article 158 § 2 he could merely declare that it had been issued contrary to law within the meaning of this provision.

8. The municipality of Warsaw did not lodge an appeal against this decision. It accordingly became final within thirty days after its service on the applicant.

9. The applicant instituted three separate sets of proceedings, seeking compensation for damage caused by the expropriation decision.

A. Proceedings in which the applicant requested the authorities to grant him the right of perpetual use

10. On 10 October 1994 the applicant, referring to the decision of 20 September 1994, requested the authorities to re-examine the original motion submitted in 1949 to be granted a right of perpetual use in respect of the land covered by the part of the expropriation decision declared null and void (see paragraph 7 above). On 28 October 1994 the Land Planning Division (Wydział Gospodarki Przestrzennej) of the Warsaw City Hall requested the Warsaw-Mokotów Town Hall to provide certain information concerning the land concerned.

11. On 3 March 1995 the applicant complained to the Minister of Construction and Land Planning about the authorities’ failure to give a decision in his case.

12. On 7 September 1995 the Minister of Minister of Construction and Land Planning stayed the compensation proceedings instituted by the applicant under Article 160 of the Code of Administrative Procedure (see paragraphs 29-33 below). He observed that the decision given on 20 September 1994 (see paragraph 7 above) made it necessary in law to re-examine the former owners’ request for grant of the right to perpetual use submitted in 1949 and that it created a compensation claim for the applicant. It referred to the applicant as “the claim’s owner” (właściciel roszczenia).

13. In March and May 1996 the applicant complained to the Minister of Construction and Land Planning about the authorities’ failure to give a decision in the case.

14. On 25 November 1996 the Supreme Administrative Court gave a decision obliging the Mayor of Warsaw to whom the case had meanwhile been transmitted to give a decision on the merits of the case within one month.

15. On 24 February 1997 the Mayor of Warsaw refused to allow the application submitted in 1949 and joined by the applicant (see paragraph 5 above). The applicant appealed.

16. On 19 July 1997 the Local Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze) set the first-instance decision aside and remitted the case.

17. On 31 December 1997 the Mayor again refused to allow the applicant’s application. The applicant appealed. On 21 January 1999 the Board of Appeal set the first-instance decision aside and remitted the case. An exchange of correspondence between the applicant and the authorities ensued.

18. In January 2004 the Mayor of Warsaw informed the applicant that he had instituted proceedings with a view to having the decision given in 1994 that created for the applicant an entitlement to compensation (see paragraphs 7 and 12 above) declared null and void. In September 2004 the Minister of Construction refused to grant the Mayor’s application, finding that the contested decision was lawful.

19. On 13 December 2004 the Warsaw Town Hall (Urząd m. st. Warszawy) informed the applicant that the Mayor could not give a decision on the merits of the case unless the applicant indicated, by way of an initial request to obtain a construction permit, how he intended to use the land in question.

20. In September 2006 the applicant complained about the authorities’ failure to give a decision on the merits of the case. On 15 November 2006 the Board of Appeal obliged the Mayor to issue a decision by the end of February 2007.

21. On 15 March 2007 the applicant again complained about the administrative authorities’ failure to examine his case within a reasonable time.

22. On 24 April 2007 the Mayor refused to allow the applicant’s application. The applicant appealed. On 30 July 2007 the Board of Appeal quashed the decision, finding that it was unlawful both on procedural and substantive grounds, and remitted the case.

23. On 15 January 2008 the applicant again complained about the administrative authorities’ failure to give a decision. On 29 August 2008 the Board of Appeal found in a decision that his complaint was ill-founded as the file of the case had been forwarded to the civil court and the administrative authorities could not deal with the case. The applicant lodged an appeal against this decision with the Supreme Administrative Court.

24. On 28 October 2010 the Supreme Administrative Court obliged the Mayor of Warsaw to give a decision on the merits of the case within a two-month time-limit.

25. On 3 June 2011 and on an unspecified later date the applicant complained to the Warsaw Regional Administrative Court about the Mayor’s failure to give a decision on the case in compliance with the judgment of that court obliging her to do so. On 14 July 2011 and 27 September 2012, respectively, the Warsaw Regional Administrative Court rejected his complaints for failure to comply with the applicable procedural requirements. It noted that the applicant was obliged, under Article 154 para. 1 on the Law of Proceedings before Administrative Courts, to call upon the Mayor to comply with the judgment obliging her to give a decision prior to lodging another complaint about her inactivity with the administrative court.

26. On 22 June 2011 the Mayor of Warsaw stayed the proceedings, pending a physical delimitation of the land concerned by a land surveyor. The applicant appealed against this decision.

27. On 13 September 2012 the applicant called upon the Mayor, under Article 154 para. 1 of the Law of Proceedings before Administrative Courts, to give a decision in compliance with the judgment of 28 October 2010. There was no reply to his request.

28. The proceedings are pending.

B. Administrative proceedings under Article 160 of the Code of Administrative Procedure in which the applicant sought compensation for damage caused by unlawful administrative decision

29. On 10 October 1994 the applicant instituted proceedings under the then applicable Article 160 of the Code of Administrative Procedure, seeking compensation for damage allegedly caused by the unlawful decision given in 1961.

30. On 7 September 1995 the Minister of Construction stayed the proceedings, considering that the outcome of the use of land proceedings described above (see paragraphs 10 - 28 above) was decisive for the proceedings under Article 160 of the Code of Administrative Procedure (see paragraph 12 above). The applicant appealed.

31. On 17 April 1997 the Supreme Administrative Court allowed the applicant’s appeal against the decision to stay the proceedings, holding that the other set of proceedings had no incidence on the issue of compensation for damage caused by the original expropriation decision.

32. In September 1997 the applicant complained about the Minister’s inactivity.

33. Ultimately in 2001 the President of Housing and Urban Development Office (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast) refused to award compensation to the applicant.

C. Civil proceedings in which the applicant sought compensation for damage caused by unlawful administrative decision

34. In June 2001 the applicant and other legal successors of the former owners of the land expropriated in 1961 lodged a claim with the Warsaw Regional Court for compensation for damage caused by that decision.

35. By a judgment of 9 December 2008 the Warsaw Regional Court awarded compensation to the applicant and other plaintiffs. The State Treasury represented by the General Attorney Office (Prokuratoria Generalna) appealed.

36. On 8 July 2009 the Warsaw Court of Appeal allowed the appeal, amended the contested judgment and dismissed the plaintiffs’ claim.

37. On 14 October 2010 the Supreme Court refused to entertain the applicant’s cassation appeal.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Administrative proceedings by which a final administrative decision can be challenged

38. Under Polish law no special provisions have been enacted whereby redress may be obtained for wrongs relating to expropriations carried out in the past. There is therefore no specific legal framework to mitigate the effects of certain infringements resulting from the deprivations of property.

39. However, it is open to persons whose property was expropriated or their legal successors, to institute, under Article 156 of the Code of Administrative Procedure (“the CAP”) (Kodeks postępowania administracyjnego), administrative proceedings in order to claim that the expropriation decisions should be declared null and void as having been issued contrary to law.

40. Article 156 § 1 of the CAP, which sets out grounds on which a final administrative decision is subject to annulment, states:

“1. A public administration authority shall declare a decision null and void if:

1) it has been issued in breach of the rules governing competence;

2) it has been issued without a legal basis or in flagrant breach of the law;

3) concerns a case already decided by means of another final decision;

4) it has been addressed to a person who is not a party to the case;

5) it was unenforceable on the date of its issuance and its unenforceability is of a permanent nature;

6) it would give rise to a punishable offence in the event that it has been enforced;

7) it has a flaw making it null and void by the force of law.

41. There is no time-limit for a party’s request to have an administrative decision declared null and void under Article 156 § 1 (see Ogórek v. Poland (dec), no. 28490/03, § 50, 18 September 2012). If the challenged decision had been given without a legal basis or in flagrant violation of law, the administrative authority shall declare it null and void (Article156 § 1 (2)).

However, a decision flawed as a result of lesser procedural

shortcomings can only be declared null and void if less than ten years have elapsed or if it has not produced irreversible effects. In respect of such decisions it is only possible to declare that they were issued contrary to law; the decisions themselves remain valid.

Article 156 § 2 provides as follows:

“A decision shall not be declared null and void on the grounds listed in paragraph 1 (1), (3), (4) and (7) if 10 years have expired from the date of its service or promulgation, as well as if the decision has produced irreversible legal effects.”

Article 158 reads as follows:

“1. A ruling on annulment of a decision shall be given by means of a decision.

2. If it is impossible to declare a decision null and void because of the circumstances referred to in Article 156 § 2, a public administration authority shall only declare that the contested decision has been issued contrary to the law and indicate circumstances because of which it has not declared the decision null and void.”

B. Compensation for damage caused by unlawful administrative decisions

43. Article 160 of the Code of Administrative Procedure, as applicable prior to 1 September 2004, read in its relevant part:

“A person who has suffered a loss on account of the issuing of a decision in a manner contrary to Article 156 § 1 or on account of the annulment of such a decision shall have a claim for compensation for actual damage, unless he has been responsible for the circumstances mentioned in this provision.”

44. Article 417 § 1 of the Civil Code provides:

“The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”

45. Article 417 ¹§ 2of the Code, which entered into force on 1 September 2004, provides that when damage had been caused by way of an unlawful and final decision, a compensation claim in respect of damage caused by such a decision can be made after the unlawfulness of such decision has been declared in separate proceedings.

C. Ownership of Warsaw lands

46. The Decree on Ownership and Use of Land in Warsaw of 26 October 1945 expropriated owners of real property located in Warsaw and transferred the ownership of land to the municipality of Warsaw. The 1945 Decree provided, in so far as relevant:

“Section 7. (1) The owner of a plot of land ... can within six months after the taking of possession of the land by the municipality file a request to be granted ... the right to a perpetual lease (wieczysta dzierżawa) with a peppercorn rent (czynsz symboliczny). ...

(2) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan. ...

(4) In case the request is refused, the municipality shall offer the person entitled, as long as it has spare land in its possession, a perpetual lease of land of equal value, on the same conditions, or the right to construct on such land.

5) In case no request, as provided for in paragraph (1), is filed, or the former owner is for any other reasons not granted a perpetual lease or the right to construct, the municipality is obliged to pay compensation pursuant to Article 9.

Section 8. In case the former owner is not granted the right to a perpetual lease or the right to construct, all buildings located on the land shall become the property of the municipality, which is obliged to pay, pursuant to Article 9, compensation for the buildings which are fit to be used or renovated.

Section 9.

...

(2) The right to compensation begins to apply six months after the day of taking the land into possession by the municipality of Warsaw and expires three years after that date. ...”

47. Pursuant to Article 33 § 2 of the Act on Local State Administration of 20 March 1950, the ownership of land located in Warsaw was assigned to the State Treasury. According to the Section 5 § 1 of the Law of 10 May 1990 the ownership of the land which had previously been held by the State Treasury and which was within the administrative territory of municipalities, was transferred to the latter.

D. Length of administrative proceedings

48. The relevant domestic law and practice concerning remedies for the excessive length of administrative proceedings, in particular the applicable provisions of the Code of Administrative Procedure and the 2002 Act on Proceedings before Administrative Courts (“the 2002 Act”), are described in the cases of Grabiński v. Poland no. 43702/02, §§ 60-65, 17 October 2006; Koss v. Poland, no. 52495/99, §§ 21-25, 28 March 2006; and Kaniewski v. Poland, no. 8049/02, §§ 22-28, 8 November 2005.

49. In particular, under section 3 § 2 (8) of the Law of 30 August 2002 on Procedure before Administrative Courts which entered into force on 1 January 2004, a party to administrative proceedings can lodge with an administrative court a complaint about inactivity on the part of an authority obliged to issue an administrative decision. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law. Section 154 § 1 provides for a possibility of requesting that a fine be imposed on the administrative authority by the administrative court for non-compliance with a judgment given under section 149 of the 2002 Act, following a prior request submitted to that authority to comply with that judgment.

50. In a number of judgments the administrative courts held that the two-month time-limit for lodging an appeal against an administrative decision laid down by section 53 of the 2002 Act is not applicable to situations where the party to administrative proceedings wishes to have recourse to the length complaint provided for in section 154 of that Act (e.g. the Supreme Administrative Court, 20 November 2012, II OSK 2712/12; 23 February 2006, II OSK 52/06; 16 May 2013, II OSK 1073/13; 19 March 2013, II OSK 540/13).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

51. The applicant complained that the length of the first set 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...”

A. Admissibility

52. The Government submitted that the applicant had failed to pursue all effective remedies available to him under domestic law with respect to excessive length of administrative proceedings.

53. They submitted that the Regional Administrative Court had rejected his two successive complaints about the administrative authority’s failure to comply with the judgment given by that court on 28 October 2010 obliging the Mayor to give a decision within two months. The court had noted that the applicant failed to comply with the applicable procedural requirement laid down by Article 154 § 1 of the 2002 Act. He had not called upon the administrative authority, prior to lodging his complaint with the administrative court, to give a decision on the merits of his case.

54. The Government further maintained that the applicant had failed to lodge a claim for compensation with a civil court in order to seek redress in tort for the violation of his personal rights which had resulted from the inactivity of the administrative authorities, on the basis of Articles 417 of the Civil Code. They referred to a resolution given by the Supreme Court in 1990 (III CZP 33/90) and by the Kraków Court of Appeal (I ACa 69/08) and Katowice Court of Appeal (I ACa 620/07) on 20 April 2009 and on 30 October 2008, respectively. They submitted that in these two cases the appellate courts had awarded just satisfaction in respect of excessive length of proceedings to the plaintiffs on the basis of the provisions of the Polish Civil Code concerning the protection of personal rights.

55. The Court reiterates that Article 35 § 1 of the Convention requires that the only remedies to be exhausted are those that are available and sufficient to afford redress in respect of the breaches alleged. The purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, inter alia, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among many other authorities, Orchowski v. Poland, no. 17885/04, § 105, 22 October 2009, and Norbert Sikorski v. Poland, no. 17599/05, § 108, 22 October 2009).

56. In so far as the Government argued that an action for damages under Article 417 of the Civil Code amounted to an effective remedy in respect of complaints about excessive length of administrative proceedings, the Court has already examined that argument on a number of occasions. It held that no persuasive arguments had been adduced to show that the provisions of the Civil Code on the State’s liability in tort have given rise to a consistent judicial practice for the purposes of seeking compensation for the excessive length of such proceedings (see Boszko v. Poland, no. 4054/03, § 35, 5 December 2006; Iskrzyccy v. Poland, no. 9261/02, § 55, 14 September 2010; Mularz v. Poland, no. 9834/08, § 46, 4 October 2011; Międzyzakładowa Organizacja Związkowa NSZZ Solidarność de Świdnica v. Poland, no. 13505/08, § 23, 28 February 2012; Potocka v. Poland, no. 1415/11. 25 September 2012; § 37). The Court sees no grounds on which to reach a different conclusion in the present case.

57. The Court further notes that on 13 September 2012 the applicant called upon the Mayor to comply with the judgment given by the administrative court on 28 October 2010 and to give a decision on the substance of the case, but to no avail as there was no reply to his complaint. The Government argued in this connection that he had failed to bring that complaint within the time-limit provided for by domestic law. In their submission, the relevant sixty-day time-limit was stipulated in Article 53 para. 1 of the 2002 Law concerning time-limits to submit appeals against administrative decisions. However, the Court observes that under the established practice of the administrative courts (see paragraph 50 above) the two-month time-limit for lodging appeals against administrative decisions is not applicable to situations where a judgment allowing a party’s complaint about the administration’s failure to give a decision was given, but no decision was subsequently issued as stipulated by the administrative court.

58. The Court has already held in a number of cases against Poland that in order to comply with the requirement of exhaustion of domestic remedies in the context of lengthy administrative proceedings it was necessary to have recourse first to a hierarchical complaint about inactivity of an administrative authority and if this proved unsuccessful, to a subsequent complaint to the administrative court (see, among many other authorities, Derda v. Poland, no. 58154/08, § 44, 1 June 2010 with further references). The applicant had recourse to these remedies. Already on 25 November 1996 the Supreme Administrative Court, having examined the applicant’s complaint, found that the proceedings instituted in 1993 had exceeded a reasonable time and obliged the administrative authority to give a decision. On 15 November 2006 the Board of Appeal found that his subsequent complaint about the length of proceedings was also well-founded. Later on, on 28 October 2010, the administrative court held that another complaint was justified and ordered the administrative authority to give a decision on the merits of the case within two months. However, no such decision was subsequently given.

59. The Court is well aware that the applicant subsequently complained on two occasions to the administrative court about the authorities’ continuing inactivity and that these complaints were rejected on formal grounds (see paragraph 22 above). This part of the Government’s objection (see paragraph 53 above) is therefore justified. However, having regard to the remedies for length of proceedings to which he had recourse previously on several occasions, the Court considers that the applicant has duly brought his complaint to the attention of the authorities.

60. Having regard to the circumstances of the case seen as a whole, the Court is of the view that the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must therefore be dismissed.

61. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It considers that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

62. The Government refrained from submitting their observations on the merits of the case.

63. 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).

64. 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; see also Stevens v. Poland, cited above, in §§ 51-62, 24 October 2006; Trzaskalska v. Poland, cited above, in §§ 47-50; Kamecki and Others v. Poland, cited above, in §§ 52-54; and Iskrzyccy v. Poland, cited above, in §§ 59-61).

65. Regarding the question of the beginning of the proceedings, the Court notes that when under the national legislation an applicant has to exhaust a preliminary administrative procedure before having recourse to a court, the proceedings before the administrative body are to be included when calculating the length of the civil proceedings for the purposes of Article 6 (see König v. Germany, 28 June 1978, § 98, Series A no. 27; Schouten and Meldrum v. the Netherlands, 9 December 1994, § 62, Series A no. 304; Kiurkchian v. Bulgaria, no. 44626/98, § 51, 24 March 2005 and Laszczak v. Poland (dec.), no. 29078/07, 11 March 2014).

66. 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, and to the fact that the proceedings in this case have been pending before various administrative authorities and administrative courts since 28 October 1994 at the latest when they took first procedural steps concerning the case (see paragraph 10 above), the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

67. There has accordingly been a breach of Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

68. The applicant complained that the excessive length of the proceedings constituted a continuing hindrance to the exercise of his right to property and had led to a significant loss of its value, in breach of Article 1 of Protocol No. 1.

69. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

70. Having regard to its finding under Article 6 § 1 (see paragraph 67 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, among many other authorities, Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194-C, p. 47, § 23; Beller v. Poland, no. 51837/99, § 74, 1 February 2005).

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

71. The applicant complained under Article 6 of the Convention that the remaining two sets of proceedings in cases in which he was involved had been excessively long. In so far as this complaint relates to the civil proceedings in which he sought compensation for damage arising out of another part of the 1961 decision (see paragraphs 34 - 37 above), this part of the application must be rejected for non-exhaustion of domestic remedies as he failed to have recourse to the complaint about excessive length of judicial proceedings available under the Polish law.

72. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

73. In so far as this complaint concerns the proceedings in which he sought compensation for unlawful administrative decision (paragraphs 29-33 above), the Court notes that they ended in 2001, while the applicant lodged his application with the court in 2009, long after the six-month time-limit provided for by Article 35 § 1 had expired.

74. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

75. The applicant further complained that the circumstances of the case amounted to a breach of the prohibition of degrading treatment and had violated Article 3 of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

76. Finally, the applicant complained that the expropriation of his legal predecessors’ property was in breach of Article 1 of Protocol No. 1 to the Convention. The Court notes that the expropriation decision was ultimately upheld in 1961. Poland ratified Protocol No. 1 to the Convention on 10 October 1994. Accordingly, this complaint is incompatible with the provisions of the Convention ratione temporis and must be rejected according to Article 35 § 3 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

77. 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

78. The applicant claimed 1,205,000 Polish zlotys (PLN) in respect of non-pecuniary damage. He further claimed 48,800,790 Polish zlotys (PLN) in respect of pecuniary damage allegedly occasioned by the decisions given in his case. The Government did not express an opinion on the matter.

79. 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 considers that the applicant must have sustained non-pecuniary damage. It accordingly awards the applicant 17,000 euros (EUR) in respect of non-pecuniary damage.

B. Costs and expenses

80. The applicant also claimed PLN 10,220 for the costs and expenses incurred before the domestic authorities.

81. The Government did not express an opinion on the matter.

82. Regard being had to the documents submitted by the applicant and concerning the costs borne in connection with the administrative proceedings and to its case-law, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 75.

C. Default interest

83. The Court considers it appropriate that the default interest rate 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,

1. Declares the complaint about the excessive length of the proceedings concerning the determination of the right of perpetual use admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there is no need to examine the complaint under Article 1 of Protocol No. 1 to the Convention;

4. 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 17,000 (seventeen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 75 (seventy-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 2 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Ineta Ziemele
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> SIERMINSKI v. POLAND - 53339/09 - Chamber Judgment [2014] ECHR 1348 (02 December 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/1348.html Cite as: [2014] ECHR 1348