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FOURTH
SECTION
CASE OF TARNOWSKI v. POLAND (no. 1)
(Application
no. 33915/03)
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. 1),
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,
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. 33915/03) 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 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. 43934/07 (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 ownership title was entered in the
land and mortgage register.
- In
respect of plot no. 6271, the right of perpetual use of that plot was
granted by the State Treasury to the “Zakłady
Energetyczne Okręgu Radomsko-Kieleckiego SA” and that
company was designated as the present occupier. On 12 July 1992
the State-owned enterprise was transformed into an independent public
company, the “Zakłady Energetyczne Okręgu
Radomsko-Kieleckiego SA”, the structure and functioning of
which were governed by the provisions of the Commercial Code and
other relevant Acts. The State however retained a 100 % shareholding
in the company.
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, plot no. 6271.
- The
applicants and the present occupier of one of the plots appealed. On
14 January 1998 the applicants’ opponent withdrew its appeal.
On 19 November 1997 the Minister of Agriculture discontinued the
appellate proceedings in respect of the part of the decision given in
the applicants’ favour and dismissed the applicants’
appeal against 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 title to plot no. 6271 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. The judgment in this
part became final. The proceedings in respect of plot no. 6271
continued.
- On
9 November 2000 the Kielce Regional Court stayed the proceedings in
respect of plot no. 6271 as it had decided, following the
request of another party, to re-open the proceedings in respect of
plots nos. 1310 and 1314/1. The proceedings were resumed on an
unknown date.
- On
1 March 2007 the Kielce Regional Court gave judgment in the case. In
respect of the disputed plot no. 6271 the court partly allowed the
applicants’ claim and decided on rectification of an entry in
the land and mortgage register in respect of plot no. 6271/3. The
court dismissed the remainder of the claim (plots nos. 6271/1 and
6271/2), finding that that part of plot no. 6271 had been sold by the
applicants’ predecessor in title in 1939. It had been in the
possession of certain individuals until the 1960s when it had been
re sold to the State Treasury with a view to realising certain
development plans. The judgment became final as no parties lodged an
appeal.
- On
12 July 2007 the applicants were entered in the land and mortgage
register as the owners of plot no. 6271/3.
20.
On 19 November 2007 the applicants sold the above mentioned plot
to the present occupier (see paragraph 32 below).
3. Civil proceedings for recovery of possession
- On
15 April 1999 the applicants lodged an action for recovery of plot
no. 6271.
- On
23 November 1999 the Kielce Regional Court stayed the proceedings
pending the outcome of the proceedings for rectification of an entry
in the land and mortgage register (see paragraphs 13 20 above).
- On
20 January 2003 the applicants requested the court to resume the
proceedings. The applicants submitted that the proceedings regarding
the rectification of the entry in the land and mortgage register had
been pending before the Kielce Regional Court. However, they wished
to have the proceedings resumed as the Kielce Governor’s
decision of 30 June 1997 had become final in respect of plot no. 6271
and their title to this plot had not been disputed.
- On
21 March 2005 the Kielce Regional Court dismissed the applicants’
request.
- On
1 June 2007 the applicants requested the court to resume the
proceedings as the proceedings regarding the rectification of the
entry in the land and mortgage register had ended on 1 March 2007
(see paragraph 18 above). On 28 June 2007 the court resumed
the proceedings.
- On
27 December 2007 the proceedings were discontinued, 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.
- The
right of perpetual use of plot no. 6271 was granted by the State
Treasury to the “Zakłady Energetyczne Okręgu
Radomsko-Kieleckiego SA” and that company was designated as
the present occupier (see paragraph 8 above).
- On
6 December 2001 the Kielce Regional Court gave judgment in the case.
On 12 July 2001 the Cracow Court of Appeal upheld the first instance
judgment. 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 partly withdrew their claim in respect of
plots nos. 1310 and 1314/1.
- On
29 December 2004 the Cracow Court of Appeal gave judgment partly in
the applicants’ favour awarding them the amount of PLN 894,648
for the period from 1 January 1997 to 20 October 2000. In
respect of plot no. 6271 the court awarded the amount of PLN 433,906
and dismissed the defendant’s claim that part of that plot had
been sold by the applicants’ predecessor in 1939 as it had
failed to substantiate them.
- On
19 November 2007 the applicants sold plot no. 6271/3 to the
present occupier of the property - the “Zakłady
Energetyczne Okręgu Radomsko-Kieleckiego SA”. On the
basis of that agreement the applicants were awarded compensation for
the use of the plot without title for the period from 20 April 2007
to 19 November 2007. In respect of the period from 1 November 2000 to
20 April 2007 the parties decided that it would be subject to another
agreement to be concluded in the future or civil proceedings.
5. Proceedings under the 2004 Act
- On
1 March 2005 the applicants lodged a complaint with the Cracow Court
of Appeal 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 1. They also requested the court to take action to
expedite and resume the proceedings for recovery of the property (see
paragraphs 21-26 above).
- On
29 April 2005 the Cracow Court of Appeal rejected the complaints of
Mr M. Tarnowski and Mr A. Tarnowski as all three applicants
had paid only PLN 100 by way of Court fees. It held that this
had been contrary to section 17 § 2 of the 2004 Act, which
provided that each applicant was obliged to pay the amount of PLN 100
in respect of their complaints.
- Having
examined the complaint lodged by Mr J. Tarnowski, on 29 April
2005 the Cracow Court of Appeal found that the proceedings had been
handled properly. The court concluded that the fact that the
proceedings had been suspended from November 1999 had not amounted to
“unreasonable delay” as defined by the 2004 Act. It found
that a delay had occurred only between the date when the applicants
submitted their request for the proceedings to be resumed to the
Kielce Regional Court on 20 January 2003 and the date of the
decision on this matter on 21 March 2005. The court granted Mr
J. Tarnowski just satisfaction in the amount of PLN 1 as he had
requested. The court dismissed the request for the proceedings to be
expedited.
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, is 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 the domestic remedies available to them under Polish law,
as required by Article 35 § 1 of the Convention.
- As
regards the proceedings for recovery of possession the Government
submitted that only Mr J. Tarnowski had lodged his complaint in
accordance with the formal requirements set out in the 2004 Act.
- The
complaints of Mr M. Tarnowski and Mr A. Tarnowski had been
rejected as they had failed to pay the court fee of PLN 100.
Therefore, these applicants had failed to exhaust the remedies
provided for by domestic law. The Government maintained that they
could have lodged a new complaint concerning the length of the
proceedings at any time after the court had rejected their requests.
- The
Government further maintained 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 with the Government. They submitted that, in
separate proceedings under the 2004 Act (the proceedings concerning
plots nos. 1310 and 1314/1 – see application no. 43934/07
pending before the Court), the Kielce Regional Court had examined
their complaint under the 2004 Act on the merits in similar
circumstances. They did not comment on the Government’s
submissions concerning the other 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 above-mentioned proceedings must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
- As
regards the proceedings for recovery of possession, the Court notes
that only one of the applicants paid the court fee for the length
complaint.
The
Court notes that at that time the applicants were represented by a
lawyer and the domestic court was not obliged to advise them on how
to lodge or remedy formal deficiencies of their complaints (compare
and contrast Wende and Kukówka v. Poland,
no. 56026/00, § 54, 10 May 2007)
- It
follows that this part of the application in respect of the
above mentioned applicants, Mr M. Tarnowski and Mr
A. Tarnowski, must be rejected under Article 35 §§ 1
and 4 of the Convention for non exhaustion of domestic
remedies.
- The
Court further notes that, in view of the judgment of the Cracow Court
of Appeal of 29 April 2005, a question arises as to whether the
applicant, Mr J. Tarnowski, can still claim to be a “victim”,
within the meaning of Article 34 of the Convention, of a
violation of his right to a hearing within a reasonable time in
respect of the proceedings for recovery of the property. It notes, in
this connection, that in its judgment of 29 April 2005 the
Cracow Court of Appeal found the delay in the proceedings unjustified
(see paragraph 35 above) and granted him just satisfaction in the
amount of PLN 1 which was the full amount he had claimed in respect
of delays which had occurred in the proceedings. Moreover, the
proceedings in question quickly came to a final resolution (in
less than 10 months) after the delivery of the final judgment in the
proceedings for rectification of an entry in the land and mortgage
register (see paragraphs 25 26 above). However, the Court
considers that this issue is closely linked to the substance of the
applicant’s complaint and its examination should therefore be
joined to the merits of the case. As the complaint 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 27 December 2007 by a decision of the Kielce
Regional Court (see paragraph 26 above). Thus, the period to be taken
into consideration lasted 8 years, 6 months and 14 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 maintained that the proceedings for recovery of
possession, 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 latter proceedings
had been, in turn, adjourned pending the outcome of the
administrative proceedings. In the Government’s opinion the
proceedings in question had in fact lasted from 15 April 1999 to
23 November 1999, when the Kielce Regional Court stayed the
proceedings pending the outcome of the proceedings for rectification
of an entry in the land and mortgage register and from 28 June
2007 when the court resumed the proceedings to 27 December 2007,
when it discontinued the proceedings. Therefore, the length of the
proceedings amounted only to twelve months. The Government further
claimed that the periods during which the proceedings had been stayed
should be deducted from the overall period.
- The
applicants disagreed with the Government. They submitted that after
the decisions of 30 June 1997 by the Kielce Governor, and
subsequently, that of 19 November 1998 by the Minister of
Agriculture, the State Treasury should have returned the property in
question without delay. Finally, they submitted that the case had
been examined with delays and they had had to wait almost ten years
before their title to the property was entered in the land and
mortgage register by the judgment given by the Kielce Regional Court
on 1 March 2007.
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 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 observes that the case involved a certain degree of complexity.
The Court can accept that some delays in the proceedings before the
Kielce Regional 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. However, it considers that this
in itself cannot justify the overall length of the proceedings.
- As
regards the conduct of the applicant, the Court, having regard to the
available evidence, does not find it established that the applicant
substantially contributed to the delays in the proceedings.
- As
regards the conduct of the relevant authorities, the Court observes
that the proceedings, instituted on 15 April 1999, remained
dormant from 23 November 1999 to 27 June 2007 since they were
stayed pending the outcome of separate proceedings.
- 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 Kielce Regional Court on 20 January 2003 and the date of the
decision on this matter on 21 March 2005 (see paragraphs 23-24
above).
- The
Court notes that the applicant, Mr J. Tarnowski, availed himself
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 17-18 above).
- However,
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 applicant to lodge a
complaint under the 2004 Act in the latter proceedings with a view to
speeding them up since they were decisive for his rights, but he
failed to do so (see paragraphs 13-20 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.
- Lastly,
the Court recalls that it has joined to the merits of the case the
question whether the applicant, Mr J. Tarnowski, can still claim
to be a victim of a breach of the Convention (see paragraph 50
above). However, having regard to its conclusion on the Article 6
issue, the Court finds that it is not necessary to determine the
issue of the applicant’s victim status.
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. They
had obtained full redress for any delay in having possession of the
property restored to them by the present occupier.
- Under
the agreement which they had concluded with the company concerned,
they had sold the property in question to it and had obtained
compensation for the use of their property without title.
Additionally, compensation under the same title but for another
period of time was awarded to the applicants by the Cracow Court of
Appeal.
- The
applicants disagreed with the Government.
- 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 case. 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 1 March 2007 the
applicants had been entered as owners in the land and mortgage
register. On 19 November 2007 they had sold plot no. 6271/03 to
the present occupier and on the basis of the same agreement they had
been compensated for the use of their property without title.
Additionally, compensation under the same title but for another
period of time had been awarded by the judgment of the Cracow Court
of Appeal given on 29 December 2004.
- The
Government were of the opinion that the applicants had obtained full
redress for any delays in securing possession of the property
restored to them. Therefore, there had been no interference with
their peaceful enjoyment of possessions for which the Government
could have been held responsible. Although the applicants’
property had remained for a time in the possession of the public
company, their rights had been safeguarded by the civil law and they
had already obtained redress at the domestic level.
- The
applicants disagreed with the Government. They submitted that plots
nos. 6271/1 and 6271/2 had not been returned to them despite the
fact that they had a legitimate expectation of being declared the
owners of that part of the former plot no. 6271. They maintained that
they had not been awarded any compensation for the period from 10
October 1994, the date of the ratification by Poland of Protocol
No. 1 to the Convention, to 31 December 1996.
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 decisions of the
Kielce Governor given on 30 June 1997 and the Minister of
Agriculture given on 19 November 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 32 above).
- The
Court notes that the Kielce Governor declared that plot no. 6271
should not have been subject to expropriation (see paragraph 10
above). Under the provisions of Polish law such a decision should be
regarded as conferring on the applicants 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.
- The Court notes that the property in question, a plot
of land, 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
“Zakłady Energetyczne Okręgu Radomsko-Kieleckiego
SA”, a public company. Even if the State retained 100 % of
the shares in the company, it nevertheless enjoyed complete
operational and financial autonomy and was governed by the provisions
of the Commercial Code and other relevant Acts (see paragraph 8
above).
- The
Court observes that the status of the company has a bearing on the
nature of the State’s obligations under Article 1 of
Protocol No. 1. In particular, having regard to the
institutional and operational independence of the present occupier of
the property from the State, the latter must be taken to be absolved
from responsibility under the Convention for that company’s
acts and omissions. 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 ruled partly in
their favour and awarded just satisfaction to them (see paragraph 31
above). It was open to the applicants to appeal against that judgment
or to institute civil proceedings with a view to obtaining
compensation for a further period, but they failed to do so.
- The Court further notes that the applicants
successfully instituted proceedings to have their title to plot
no. 6271/3 entered in the land and mortgage register. It was
open to the applicants to appeal against the judgment of the Regional
Court in respect of plots nos. 6271/1 and 6271/2, but they
failed to do so (see paragraph 18 above).
- Furthermore,
the applicants also successfully instituted proceedings to have
possession of their property returned to them. They sold their
property to the present occupier and were awarded compensation for
the use of the plot for the period from 20 April 2007 to 19 November
2007. In respect of the period from 1 November 2000 to 20 April
2007, which had not been covered by the ruling of the Court of
Appeal, the parties decided that it would be subject to another
agreement or civil proceedings. Therefore, it was open to the
applicants to conclude a new agreement in respect of the later period
or to put the matter before the civil courts, but they failed to do
so (see paragraph 31 above).
- Hence,
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).
- 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 lack of victim status (see paragraphs 67 – 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 the excessive length of the 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 notes that two of the applicants, Mr M. Tarnowski and
Mr A. Tarnowski, failed to avail themselves of the remedy
provided for by the 2004 Act (see paragraphs 40-51 above). It also
notes that only Mr J. Tarnowski availed himself of that
remedy in respect of the proceedings for recovery of possession.
- 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
1. Joins the question of Mr J. Tarnowski’s
victim status to the merits of his complaint under Article 6 of the
Convention concerning the excessive length of the proceedings for
recovery of possession and declares this applicant’s complaint
admissible;
- Joins to the merits 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 and declares this complaint admissible;
- Declares the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention and that it is not
necessary to determine, in consequence, the issue of Mr J.
Tarnowski’s victim status;
5. Holds that there has been no violation of
Article 1 of Protocol No. 1 of the Convention;
6. 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
