EU & Human Rights

FLORCZYK AND OTHERS v. POLAND - 30030/06

[2010] ECHR 1496European Court of Human Rights2010

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

Ljiljana Mijović, President, Lech Garlicki, Neboj&scaron;a Vučinić, judges, and Fatoş Aracı , Deputy Section Registrar ,

The case originated in an application (no. 30030/06) 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 Polish nationals, Mr Zygmunt Florczyk, Ms Grażyna Florczyk, Mr Wojciech Florczyk and Ms Maria Florczyk (“the applicants”), on 19 July 2006.

The applicants were represented by Mr M. Prawdzic-Łaszcz, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

On 15 June 2009 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided that the Court would rule on the admissibility and merits of the application at the same time (Article 29 § 3 of the Convention as applicable at the material time).

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BAILII · Verbatim mirror

In accordance with Protocol no. 14, the application was subsequently allocated to a Committee of three Judges.

The Government objected to the examination of the application by a Committee. After having considered the Government's objection, the Court rejects it.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicants, Mr Zygmunt Florczyk, Ms Grażyna Florczyk, Mr Wojciech Florczyk and Ms Maria Florczyk, are Polish nationals who were born in 1951, 1949, 1950 and 1974 respectively and live in Łódź and Cracow, Poland.

On 18 January 2002 the applicants requested the Cracow Municipal Office to pay compensation for part of their predecessor's plots of land which had been expropriated as a part of the land development plans, namely for the construction of a road.

On 9 August 2002 the Cracow Municipal Office requested the Małopolski Governor to issue a formal confirmation that the expropriation had taken place.

On 25 September 2002 the applicants submitted a copy of the Cracow District Court's decision declaring them successors as to 1/6 of the property of their predecessor in title.

On 12 May 2003 the Małopolski Governor informed the applicants that there had been a delay in the proceedings and that they would not end until 30 August 2003. The Governor also summoned them to submit certain documents.

On 12 May 2003 the applicants lodged a complaint with the President of the Office for Housing and Town Development about inactivity on the part of the Małopolski Governor. On 30 June 2003 the President of the Office for Housing and Town Development dismissed their complaint finding that the delay in the proceedings was caused by difficulties in finding other successors.

On 3 October 2003 the Cracow Municipal Office informed the applicants that the proceedings would lie dormant until the delivery of a decision by the Małopolski Governor.

On 17 November 2003 the applicants requested the Cracow Municipal Office to take action with a view of establishing the whereabouts of other parties to the proceedings.

On 27 November 2003 the Cracow Municipal Office informed the applicants that they had established a address of a certain W.P.

On 23 January 2004 the Governor informed the applicants about further delays in the proceedings and that they would not end until 23 March 2004.

On 23 March 2004 the Governor again informed the applicants about further delays in the proceedings.

On 21 May 2004 the Cracow Municipal Office informed the Governor of the addresses of two successors in title, W.P. and E.S-S.

In October 2004 the Governor requested the Cracow District Court to appoint a guardian for persons whose whereabouts remained unknown.

On 13 January 2005 the Cracow District Court stayed the proceedings since the Governor's representative had failed to comply with the court's order to submit certain information concerning the case. The proceedings were resumed on a later unknown date.

On 21 March 2005 the applicants lodged a complaint with the Cracow Regional Administrative Court about inactivity on the part of the Małopolski Governor. On 29 March 2006 the Cracow Regional Administrative Court allowed the applicants' complaint, held that the proceedings had not been conducted with necessary diligence and obliged the Governor to issue a decision on the merits.

On 11 July 2006 the Małopolski Governor informed the applicants about further delays in the proceedings.

On 25 October 2006 the Małopolski Governor appointed an expert to prepare an estimate of the value of plots.

On 12 December 2006 the Małopolski Governor gave a decision confirming that on 1 January 1999 the Cracow Municipality had acquired ownership of the property concerned which had been expropriated for the purposes of implementing the land development plans.

On 2 and 3 July 2007 the Cracow Mayor gave two decisions granting compensation to the applicants.

THE LAW

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

The applicants 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 period to be taken into consideration began on 18 January 2002 and ended on 3 July 2007. It thus lasted five years and over six months for one level of jurisdiction.

A. Admissibility

The Government submitted, firstly, that the applicants had not attempted to pursue all effective domestic remedies with respect to their complaint about the length of the proceedings. They had the following remedies at his disposal: a complaint to the higher authority under Article 37 § 1 of the Code of Administrative Procedure and a complaint to the Supreme Administrative Court under Article 17 of the Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”). Secondly, the Government argued 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 417 of the Civil Code

The applicants submitted that they had availed themselves of the administrative complaint relied on by the Government and had also submitted a successful complaint about the excessive length of the proceedings to the administrative court. As to the compensatory remedy, they argued that the matter of damages for the excessive slowness with which the proceedings had been handled was not related to the conduct of the proceedings and that its submission could not have affected their course.

The Court reiterates that the obligation to exhaust domestic remedies requires only that an applicant make normal use of effective and sufficient remedies that are capable of remedying the situation at issue and affording redress for the breaches alleged (see, among other authorities, Selmouni v. France [GC], §§ 74-76, ECHR 1999-VII).

The Court has 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 to a hierarchical complaint about inactivity of an administrative authority and to a subsequent complaint to the Supreme Administrative Court (see, e.g., Zynger (dec.), no. 66096/01, 7 May 2002; Futro v. Poland (dec.), no. 51832/99, 3 June 2003; Marcinkowscy v. Poland (dec.), no. 39262/98, 13 November 2003; Mazurek v. Poland (dec.), no. 57464/00, 7 September 2004; Koss v. Poland, no. 52495/99, 28 March 2006; Beller v. Poland, no. 51837/99, 1 February 2005; Karasińska v. Poland, no. 13771/02, 6 October 2009; Puchalska v. Poland, no. 10392/04, 6 October 2009).

Examining the instant case, the Court first observes that on 12 May 2003 the applicants lodged a hierarchical complaint alleging inactivity on the part of the administrative authorities with the respective higher authority. They also filed a complaint with the administrative courts about the authorities' failure to give a decision on the merits of the case (see paragraphs 11 and 20 above).

The Court further notes that the domestic case-law relied on by the Government does not constitute evidence of a sufficiently established judicial practice to show that a claim for compensation based on Article 417 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; Puczyński v. Poland, no. 32622/03, § 40, 8 December 2009).

Accordingly, the Court concludes that, for the purposes of Article 35 § 1 of the Convention, the applicants have exhausted domestic remedies in respect of the administrative proceedings. For these reasons, the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.

The Court further notes that the application 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 applicants and the relevant authorities and what was at stake for the applicants 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 applicants claimed 4,500 euros (EUR) each in respect of non pecuniary damage.

The Government contested the claim.

The Court considers that in the circumstances of the case the applicants must have sustained non pecuniary damage. Ruling on an equitable basis, it awards EUR 3,000 to Ms Grażyna Florczyk and Mr Wojciech Florczyk jointly and EUR 3,000 to each of the remaining applicants.

B. Costs and expenses

The applicants also claimed EUR 2,000 for the costs and expenses incurred before the Court.

The Government contested the claim.

Regard being had to the documents in its possession and to its case law, the Court considers it reasonable to award the applicant's claim in full.

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 application admissible;

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

Holds

that the respondent State is to pay, within three months, the following amounts, to be converted into Polish zlotys at the rate applicable at the date of settlement:

(a) EUR 3,000 (three thousand euros) to Ms Grażyna Florczyk and Wojciech Florczyk jointly and EUR 3,000 (three thousand euros) to each of the remaining two applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) EUR 2,000 (two thousand euros) jointly to the applicants in respect of costs and expenses, plus any tax that may be chargeable to the applicants;

(c) 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 applicants' claim for just satisfaction.

Done in English, and notified in writing on 12 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Ljiljana Mijović
Deputy Registrar President

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