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FOURTH
SECTION
CASE OF TARNOWSKI v. POLAND (no. 2)
(Application
no. 43934/07)
JUDGMENT
STRASBOURG
29 September 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 Tarnowski v. Poland (no. 2),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 8 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 43934/07) 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 three Polish nationals, Mr Juliusz Tarnowski, Mr Marek
Tarnowski and Mr Aleksander Tarnowski (“the applicants”),
on 15 October 2003.
- The
applicants were represented by Mr P. Boroń, a lawyer practising
in Cracow. The Polish Government (“the
Government”) were represented by their Agent, Mr Mr J.
Wołąsiewicz of the Ministry of Foreign Affairs.
- On
6 December 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) and that the case be examined
simultaneously together with the case no. 33915/03 (Rule 42 § 2
of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants, Mr Juliusz Tarnowski, Mr Marek Tarnowski and
Mr Aleksander Tarnowski are brothers. They are Polish nationals
who were born in 1929, 1932 and 1934 respectively and live in Kraków
and Sopot.
- The
applicants are heirs of the owner of 27 plots of land and buildings,
which constituted a property called “Końskie - Kolonie
Fabryczne”. The property was de facto expropriated
by the State by virtue of the 1944 Decree on Agrarian Reform in
January 1945.
- However,
in this particular case the relevant authorities failed to issue an
appropriate administrative decision, declaring that the property had
been subject to expropriation within the framework of the agrarian
reform.
- In
1965 the State Treasury’s title to the property was entered in
the land and mortgage register.
- In
respect of plots nos. 1310 and 1314/1, the right of perpetual use of
these plots was granted by the State Treasury to the Końskie
Municipality. The plots were leased to certain individuals.
1. Administrative proceedings concerning the
applicants’ right to the property
- On
23 July 1996 the applicants requested the Kielce Governor to issue a
decision stating that the property “Końskie - Kolonie
Fabryczne” should not have been subject to expropriation
under section 2 § 1 (e) of the 1944 Decree on Agrarian
Reform.
- On
30 June 1997 the Kielce Governor partly dismissed the applicants’
request, finding that a part of the property had met the criteria for
expropriation set out in the 1944 Decree. However, the Governor
declared that several plots of land with an overall area of 12.03
hectares should not have been subject to expropriation. This decision
concerned, among others, plots nos. 1310 and 1314/1.
- On
19 November 1997 the Minister of Agriculture dismissed the
applicants’ appeal in respect of the remainder of the decision.
- On
8 June 2001 the Supreme Administrative Court dismissed the
applicants’ further appeal, finding that the contested
administrative decisions of the Kielce Governor and the Minister of
Agriculture had been lawful.
2. Civil proceedings for rectification of an entry in
the land and mortgage register
- On
25 July 1996 the applicants instituted civil proceedings for
rectification of an entry in the land and mortgage register. They
requested the court to enter their ownership title to plots nos. 1310
and 1314/1 in the land and mortgage register. Hearings were held on 8
January and 9 April 1997.
- On
16 April 1997 the Kielce Regional Court gave a decision, securing the
applicants’ claims by entering a caveat in the land and
mortgage register. Subsequently, the court stayed the proceedings
pending the outcome of the above administrative proceedings.
- On
7 December 1998, following the delivery of the Kielce Governor’s
decision of 30 June 1997 (see paragraph 10 above), the applicants
requested that the proceedings be resumed in the part concerning the
following plots: 1) nos. 1299/2, 1303, 1306/3 and 1307/7; 2)
nos. 1310 and 1314/1; 3) no. 6271.
- On
23 June 1999 the Kielce Regional Court delivered a partial judgment
in respect of the plots listed under 1) nos. 1299/2, 1303,
1306/3 and 1307/7 and 2) nos. 1310 and 1314/1. On 22 February 2000,
after the judgment in this part became final, the Końskie
District Court entered the applicants’ ownership title in the
relevant land register.
- On
8 February one of the parties to the proceedings applied for the
proceedings in respect of plots nos. 1310 and 1314/1 to be re-opened,
arguing that new facts had arisen which showed that the applicants’
father had not owned the plots in question.
- On
9 November 2000 the Kielce Regional Court re-opened the proceedings
in respect of plots nos. 1310 and 1314/1.
- On
21 November 2000 the court stayed the re-opening proceedings pending
the outcome of civil proceedings concerning the ownership title to
these plots before the Końskie District Court, and subsequently,
before the Kielce Regional Court. On 29 December 2005 the Kielce
Regional Court, following an appeal by the applicants, dismissed the
State’s Treasury claim and discontinued the proceedings.
- On
21 February 2007 the Kielce Regional Court resumed the proceedings
for re-opening the proceedings terminated by the judgment of 23 June
1999 (see paragraph 16 above).
- On
1 March 2007 the Kielce Regional Court gave judgment in the case. It
dismissed the motion for re-opening the proceedings.
3. Civil proceedings for recovery of possession
- On
15 April 1999 the applicants lodged an action for recovery of plots
nos. 1310 and 1314/1.
- At
the first hearing, on 6 July 1999, the Końskie District Court
stayed the proceedings pending the outcome of the proceedings for
rectification of an entry in the land and mortgage register (see
paragraphs 13-21 above).
- On
14 July 1999 the applicants appealed against that decision. On
20 October 1999 the Kielce Regional Court dismissed the
applicants’ interlocutory appeal.
- On
25 November 1999 the applicants requested that the proceedings be
resumed.
- On
14 January 2000 the Końskie District Court resumed the
proceedings.
- On
27 January 2000 a third party asked the court to allow her to
participate in the proceedings as intervenor. She alleged that the
applicants’ father had not been the owner of the plots in
question since she and her husband had been in possession of the
disputed plots since 1948.
- On
16 May 2000 the Końskie District Court stayed the proceedings,
indicating that the proceedings for rectification of an entry in the
land register had been re-opened in their part concerning the
applicants’ claim. On 1 December 2000 the Kielce Regional Court
dismissed the applicants’ interlocutory appeal, finding that
the lower court’s decision was correct.
- On
26 January 2006 the applicants requested the court to resume the
proceedings. On 5 October 2007 the Court resumed the proceedings and
discontinued them since the applicants had withdrawn their action.
4. Civil proceedings for compensation
- On
1 March 1999 the applicants instituted civil proceedings for
compensation for the use of their property by the State Treasury
without valid legal title. They claimed compensation for the period
from 29 September 1990 to November 2000.
- On
6 December 2001 the Kielce Regional Court gave judgment in the case.
On 12 July 2002 the Cracow Court of Appeal upheld the first-instance
judgment. Following a cassation appeal lodged by the State Treasury,
on 11 February 2004 the Supreme Court quashed the second-instance
judgment and remitted the case.
- On
17 December 2004 the Court of Appeal held a hearing in the case. At
the hearing the applicants withdrew their claim in respect of plots
nos. 1310 and 1314/1.
- On
29 December 2004 the Cracow Court of Appeal discontinued the
proceedings in respect of the abovementioned plots since the
applicants had withdrawn their claims.
- On
5 May 2006 the applicants sold plots nos. 1310 and 1314/1 to a
third party.
5. Proceedings under the 2004 Act
- On
7 February 2005 the applicants lodged a complaint with the Kielce
Regional Court under the Act of 17 June 2004 on complaints about a
breach of the right to trial within a reasonable time (“the
2004 Act”). The applicants claimed just satisfaction in the
amount of PLN 10,000 (approx. EUR 2,700). They also requested the
court to take action to resume and expedite the proceedings for
recovery of the property (see paragraphs 22 29 above).
- On
4 May 2005 the Kielce Regional Court dismissed the applicants’
complaint. The court referred to the fact that there had been no
undue delay in the proceedings on and after the date of entry into
force of the Act on 17 September 2004. The court pointed out
that the proceedings had been stayed pending the outcome of other
proceedings (see paragraphs 19 and 13-21 above) in which the
ownership of the property was in issue. Therefore, there had been no
delays in dealing with the case.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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 set out 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
relevant domestic law and practice concerning Article 1 of Protocol
No. 1 is set out in the Court’s judgments in the cases of
Zwierzyński v. Poland, no. 34049/96, § 63-74,
ECHR 2001-VI, and Bennich-Zalewski v. Poland,
no. 59857/00, judgment of 22 April 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS
- 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.
A. Admissibility
- The
Government raised a preliminary objection that the applicants had not
exhausted all domestic remedies available to them under Polish law,
as required by Article 35 § 1 of the Convention.
- The
Government acknowledged that the applicants had used the available
remedy in respect of the proceedings for recovery of possession by
submitting a complaint under the 2004 Act with the Kielce Regional
Court on 7 February 2005.
- The
Government further maintained, however, that all the applicants had
failed to exhaust the remedies provided for by domestic law in
respect of the proceedings for rectification of an entry in the land
and mortgage register and the proceedings for compensation.
- The
Government also submitted that they had not made use of any remedies
available under administrative law in order to complain about the
allegedly protracted length of the administrative proceedings
concerning the applicants’ title to the property.
- The
applicants disagreed. However, they did not comment on the
Government’s submissions concerning the proceedings for
rectification of an entry in the land and mortgage register, the
proceedings for compensation or the administrative proceedings.
- The
Court reiterates that under Article 35 § 1 of the Convention,
the Court may only deal with complaints after all domestic remedies
have been exhausted.
- The
Court considers that the applicants were required by Article 35
§ 1 of the Convention to lodge a complaint of a breach of
the right to trial within a reasonable time with the domestic court
under the 2004 Act in respect of the proceedings for rectification of
an entry in the land and mortgage register and the proceedings for
compensation. They were also required by Article 35 § 1 of the
Convention to use remedies available under administrative law in
order to complain about the length of the administrative proceedings.
However, they did not avail themselves of these remedies.
- It
follows that this part of the applicants’ application in
respect of the abovementioned proceedings must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
- The
Court further notes that the remainder of the application concerning
the proceedings for recovery of possession 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
1. The period to be taken into consideration
-
The civil proceedings for recovery of possession started on 15 April
1999 and ended on 5 October 2007 by a decision of the Kielce Regional
Court (see paragraph 29 above). Thus, the period to be taken into
consideration lasted 8 years, 5 months and 23 days.
2. The parties’ submissions
- The
Government submitted that the case had been very complex as the
domestic authorities had had to clarify the legal and factual
circumstances of events which had occurred in the past dating back to
the Second World War. Numerous documents had had to be obtained and
examined.
- The
Government acknowledged that the applicants had not contributed to
the length of the proceedings.
- The
Government submitted that the applicants had instituted the
administrative proceedings concerning their title to the property and
the proceedings for rectification of an entry in the land and
mortgage register almost on the same date. In consequence, the latter
proceedings had to be stayed pending the outcome of the former.
- The
Government maintained that the proceedings for repossession, which
had been instituted on 15 April 1999, had had to be stayed pending
the outcome of the proceedings for rectification of an entry in the
land and mortgage register.
- The
applicants disagreed. They submitted that they had asked for the
proceedings for recovery of possession to be speeded up because other
sets of proceedings pending at the same time, in particular the
proceedings for rectification of an entry in the land and mortgage
register, could not be terminated by a decision on the merits because
of additional claims submitted by the State Treasury and the Końskie
Municipality. Finally, they submitted that the case had been examined
with delays and they had had to wait almost ten years before they
regained possession of the land.
3. The Court’s assessment
- 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 observes that the case involved a certain degree of complexity.
The Court can accept that some delays in the proceedings before the
Końskie District Court could be explained by the fact that at
the material time the court had to stay the proceedings until
delivery of a judgment in separate proceedings.
- As
regards the conduct of the applicants, the Court, having regard to
the available evidence, does not find it established that the
applicants substantially contributed to the delays in the
proceedings.
- As
regards the conduct of the relevant authorities, the Court observes
that the proceedings for repossession, instituted on 15 April
1999, remained dormant from 6 July 1999 to 27 January 2000 and from
16 May 2000 to 5 October 2007 since they were stayed pending the
outcome of separate proceedings.
- The Court notes that the applicants availed themselves
of the procedure provided for by domestic law to resume the
proceedings in question as well as the procedure provided for by the
2004 Act to expedite the proceedings. The Court observes that these
efforts were unsuccessful, and the proceedings for recovery of
possession have remained stayed, essentially, as a consequence of
civil claims to the property having been raised in the context of
separate proceedings (see paragraphs 17-19 above).
- The
Court does not share the Government’s view that the whole
period during which the proceedings were stayed should be deducted
from the overall length of the proceedings. The Court further
observes that some delays occurred between the date when the
applicants submitted their request for the proceedings to be resumed
to the Końskie District Court on 26 January 2006 and the date of
the decision on this matter on 5 October 2007. However, that period
has to be assessed in the light of the fact that the applicants had
sold plots nos. 1310 and 1314/1 on 5 May 2006 (see paragraph 34
above). Therefore, the delay which was essential to the applicants’
rights amounted only to three months.
- Lastly,
the Court is of the view that the State cannot be held responsible
for the remaining period when the proceedings were stayed pending the
outcome of the proceedings for rectification of an entry in the land
and mortgage register. It was open to the applicants to lodge a
complaint under the 2004 Act in the latter proceedings with a view to
speeding them up since they were decisive for their rights, but they
failed to do so (see paragraphs 13-21 above).
- Having
regard to all the circumstances of the case, the Court considers that
there has been no violation of Article 6 § 1 of the Convention.
II. ALLEGED
VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The applicants complained that the domestic courts had
failed to take appropriate and speedy action to restore possession of
their property to them. They relied on Article 1 of Protocol
No. 1 to the Convention, which reads:
“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.”
A. Admissibility
- The
Government raised a preliminary objection that the applicants could
not claim to be victims of a breach of the Convention since they had
already obtained just satisfaction within the domestic system.
- The Government further maintained that the applicants
had sold plots nos. 1310 and 1314/1 on 5 May 2006. On 1 March
1999 the applicants had instituted civil proceedings for compensation
for the use of their property without valid legal title. However, on
17 December 2004 they had withdrawn their claims in respect of
the plots in question.
- The
applicants disagreed.
- The
Court considers that the Government’s objection is closely
linked to the substance of the applicants’ complaint under
Article 1 of Protocol No. 1 to the Convention. Its
examination should therefore be joined to the merits of the
complaint. As the complaint is not inadmissible on any other grounds,
it must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government submitted that the applicants could not claim to be
victims of a breach of the Convention since they had already obtained
satisfaction within the domestic system. On 23 November 1999 the
Kielce Regional Court had given partial judgment concerning plots
nos. 1310 and 1314/1. Despite the fact that one of the defendants had
lodged a motion for re-opening the proceedings and the courts had
instituted further proceedings aimed at verifying the legal status of
the disputed plots, the applicants had eventually sold the plots on 5
May 2006.
- The
Government further maintained that on 1 March 1999 the
applicants had instituted civil proceedings for compensation for the
use of their property without valid legal title. However, on
17 December 2004 they had withdrawn their claims in respect of
plots nos. 1310 and 1314/1. In consequence, on 29 December 2004 the
Cracow Court of Appeal had discontinued the proceedings in respect of
these plots.
- The
Government were of the opinion that the applicants had therefore
obtained full redress for any delays in having possession of the
property restored to them. Hence, there had been no interference with
their peaceful enjoyment of possessions for which the Government
could have been held responsible.
- The
applicants disagreed. They submitted that the domestic authorities
had interfered with their right to the peaceful enjoyment of their
possession and that they had sold their plots below their real market
value. Therefore, they had not been compensated in full.
2. The Court’s assessment
- The
Court first reiterates that Article 1 of Protocol No. 1 contains
three distinct rules. They have been described thus (in James and
Others v. the United Kingdom, judgment of 21 February
1986, Series A no. 98, pp. 29-30, § 37; see also,
31524/96, § 51, ECHR 2000-VI):
“The first rule, set out in the first sentence of
the first paragraph, is of a general nature and enunciates the
principle of the peaceful enjoyment of property; the second rule,
contained in the second sentence of the first paragraph, covers
deprivation of possessions and subjects it to certain conditions; the
third rule, stated in the second paragraph, recognises that the
Contracting States are entitled, amongst other things, to control the
use of property in accordance with the general interest ... The three
rules are not, however, ‘distinct’ in the sense of being
unconnected. The second and third rules are concerned with particular
instances of interference with the right to peaceful enjoyment of
property and should therefore be construed in the light of the
general principle enunciated in the first rule.”
- The
Court points out that the concept of “possessions” in
Article 1 of Protocol No. 1 has an autonomous meaning (see
Beyeler v. Italy [GC], no. 33202/96, § 100,
ECHR 2000-I). Consequently, the issue that needs to be examined first
is whether the circumstances of the case, considered as a whole,
conferred on the applicant a substantive interest protected by
Article 1 of Protocol No. 1.
- In
this connection, the Court notes that the applicants’ complaint
is focused on the inability to enjoy what they perceive as their
rights protected by Article 1 of Protocol No. 1. This
inability has resulted from the fact that after the decision of the
Kielce Governor given on 30 June 1997 by which their ownership was
recognised, they had to take further proceedings in order to be able
to effectively enjoy their rights originating in these decisions (see
paragraphs 13-34 above).
- The
Court notes that the Kielce Governor declared that plots nos. 1310
and 1314/1 should not have been subject to expropriation (see
paragraph 10 above). Under the provisions of Polish law such a
decision gives rise, on the part of former owners or their legal
successors, to a right to have the property restored to them, or,
failing that, to compensation. Hence, the decision to set aside the
final expropriation decision had consequences for the applicants
which should be regarded as conferring on them a proprietary interest
falling within the ambit of possessions within the meaning of
Article 1 of Protocol No. 1 to the Convention (see
Bennich Zalewski v. Poland, no. 59857/00,
judgment of 22 April 2008, § 90) .
- The
Court reiterates that by virtue of Article 1 of the Convention,
each Contracting Party must “secure to everyone within [its]
jurisdiction the rights and freedoms defined in ... [the]
Convention”. The obligation to secure the effective exercise of
the rights defined in that instrument may result in positive
obligations for the State (see, among other authorities, X and
Y v. the Netherlands, 26 March 1985, Series A no. 91,
p. 11, §§ 22 23). In such circumstances, the
State cannot simply remain passive and “there is ... no room to
distinguish between acts and omissions” (see, mutatis
mutandis, Airey v. Ireland, 9 October 1979, Series A
no. 32, p. 14, § 25).
- As
regards the right guaranteed by Article 1 of Protocol No. 1,
such positive obligations may entail certain measures necessary to
protect the right to property (see, among other authorities and
mutatis mutandis, López Ostra v. Spain,
9 December 1994, Series A no. 303-C, p. 55, § 55),
even in cases involving litigation between private individuals or
companies (see Anheuser-Busch Inc. v. Portugal [GC],
no. 73049/01, § 83, ECHR 2007-..., Sovtransavto
Holding v. Ukraine, no. 48553/99, § 96, ECHR
2002-VII, and Bennich-Zalewski v. Poland, cited above, §
92).
- The
Court observes that the applicants’ complaint does not relate
to a simple failure on the part of the State to conduct enforcement
proceedings in respect of a final judicial decision given against it
in the applicant’s favour (in respect of which obligation, see
Prodan v. Moldova, no. 49806/99, ECHR 2004-III
(extracts), and Lupacescu and Others v. Moldova,
nos. 3417/02, 5994/02, 28365/02, 5742/03, 8693/03, 31976/03,
13681/03, and 32759/03, 21 March 2006). Rather, their complaint is
that it was left to them to take such measures as would have made it
possible for them to fully enjoy the economic advantages arising out
of their rights originating in the decision of the Kielce Governor in
June 1997 (see paragraph 10 above).
- The
Court notes that the property in question, plots nos. 1310 and
1314/1, was not held by any public authority either when the decision
of the Kielce Governor was given in June 1997, or at any later time
(contrast Zwierzyński v. Poland, cited above,
§ 67, ECHR 2001-VI). It was held by the individuals who
leased the property from the Końskie Municipality (see paragraph
8 above).
- For
the Court, the State’s obligation in the circumstances of this
case is confined to ensuring effective enforcement of the decision
annulling the expropriation, by having in place a legal framework
making it possible for the applicants to recover possession of their
property and to settle claims arising between them and the
private-law entity which was in possession of the property at the
time of the impugned decision (see, mutatis mutandis,
Sovtransavto Holding v. Ukraine, cited above, § 96).
- The
Court notes that under domestic law it was open to the applicants to
have recourse to various types of proceedings in order to have the
1997 decision implemented in practice and, in particular, to have
their claims and counterclaims determined by the courts. The
applicants had recourse to them, firstly by instituting civil
proceedings against the State Treasury in which they sought damages
from it for the use of the property after 29 September 1990, the date
on which the Constitutional Court had ruled on a legal question
concerning interpretation of section 2 § 1 (e) of the Decree on
Agrarian Reform. The Court of Appeal discontinued those proceedings
since the applicants had withdrawn their claims in respect of the
plots in question (see paragraph 33 above). Hence, it was open to the
applicants to seek just satisfaction before the domestic courts but
they waived their claims voluntarily.
- The
Court further notes that the applicants successfully instituted
proceedings to have their title to plots nos. 1310 and 1314/1 entered
in the land and mortgage register (see paragraphs 16 and 21 above).
- Furthermore,
the applicants also successfully instituted proceedings to have
possession of their property returned to them. On 5 May 2006
they sold their plots to the present occupier on the basis of a civil
law contract (see paragraph 34 above).
- Hence,
the domestic law provided an effective framework of a judicial
character by which the applicants could seek to have the economic
value of their rights arising out of the Kielce Governor’s
decision of 30 June 1997 recognised in practice (see paragraph
10 above). They successfully availed themselves of the possibilities
created for them and had their rights vindicated.
- Having
regard to the circumstances of the case seen as a whole, the Court is
of the view that the State has not failed to comply with its
obligation to secure to the applicants the effective enjoyment of
their rights guaranteed by Article 1 of Protocol No. 1 to
the Convention. On that account, the Court finds that it is
unnecessary to rule on the Government’s preliminary objection
relating to victim status (see paragraph 68 above).
Therefore,
there has been no violation of Article 1 of Protocol No. 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicants complained that the 2004 Act had not provided an
effective remedy against excessive length of proceedings. They relied
on Article 13 of the Convention which provides as follows:
“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
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 length of proceedings complaint (see,
Figiel v. Poland (no. 1), no. 38190/05, 17 July
2008).
- 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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings for recovery of possession admissible;
- Joins the Government’s preliminary
objection concerning the applicants’ lack of victim status to
the merits of their complaint under Article 1 of Protocol No. 1
to the Convention;
- Declares
the remainder of the application inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention;
5. Holds that there has been no violation of
Article 1 of Protocol No. 1 of the Convention;
- Holds that it is not necessary to decide on the
Government’s above-mentioned preliminary objection.
Done in English, and notified in writing on 29 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
