PROCEDURE

The case originated in an application (no. 61967/00) 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”) on 24 November 1999 by Mr Julian Sernawit, Mr Stefan Sernawit and Mr Tadeusz Sernawit (“the applicants”). They were first represented before the Court by Mr W. Hermeliński, who was later replaced by Ms A. Metelska, lawyers practising in Warsaw.

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

On 7 November 2003 the President of the Fourth Section of the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it was decided to rule on the admissibility and merits of the application at the same time.

On 18 February 2002 the first applicant's wife, Mrs Wanda Sernawit, informed the Court's Registry that the applicant had died on 15 July 2000. On 18 August 2003 the second applicant's wife, Mrs Helena Sernawit, informed the Registry that her husband had died. They stated that they wished to continue the proceedings before the Court in their late husbands' stead.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

1. Prior to 1 May 1993

The applicants' parents owned a plot of land with a house in Warsaw. Pursuant to the provisions of the 1945 Decree on the Ownership and Use of Land in Warsaw (Dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy) they were expropriated and the ownership of the property passed to the Warsaw municipality.

On an unspecified date between 1965 and 1967 the applicants' parents requested to be granted a right of perpetual use of the expropriated land. On 30 October 1968 the District Board of the local council dismissed their request.

On an unspecified date in 1975 the applicants' father died. On 18 April 1975 the ownership of the property in question passed from the Warsaw municipality to the State Treasury.

By a letter of 18 November 1977, the Office of the City of Warsaw consented to the sale of the property to a third party.

Pursuant to the order of the District Mayor (Naczelnik Dzielnicy), the land and the building were put up for sale and, on 19 April 1985, two‑thirds of the property was sold to a certain B.K.

On an unspecified date in 1987 the applicants requested that the property be restored to them.

On 10 October 1987 the applicants obtained a partial restitution of their property. A right of perpetual use of one-third of the land and ownership of one‑third of the building situated on that property were awarded to them.

On 5 February 1990 the applicants requested that the remaining two‑thirds of the property be restored to them. In their letter to the District Office (Urząd Dzielnicowy) they complained that the local authorities, being aware of the applicants' claims to the property, had deliberately sold the property, taking an unfair advantage of the fact that the inheritance proceedings following the applicants' parents' death had not been terminated yet.

By a letter of 20 April 1990 the authorities indicated that since two‑thirds of the original plot had been sold to third parties before the entry into force of a certain statute in 1985, only one-third of the plot could be restored to the applicants. Thus, restitution of the remaining two‑thirds of the property was impossible and, in accordance with the 1985 law, any compensation claims had expired on the date of entry into force of this law.

On 7 May 1990 the applicants again requested the District Office to consider their claims. They challenged the lawfulness of the sale of the two‑thirds of the property as the District Office had at that time been aware of their outstanding claims.

By a letter of 15 October 1990 the Town Office, Division of Architecture and Land Management (Urząd Miasta Stołecznego Warszawy, Wydział Architektury i Gospodarki Gruntami, reiterated the position of the District Office.

The applicants sent numerous letters of complaint to various authorities, including the Supreme Administrative Court. Following an inquiry of that court, the Regional Office in its letter of 16 April 1991 explained that the matter was under consideration and apologised for the delays in its examination, which were due to a serious backlog of cases and understaffing.

The Supreme Administrative Court regarded the applicants' subsequent complaints as a complaint about the inactivity of the administrative authorities and the failure to issue an administrative decision. By a judgment of 11 October 1991 the court obliged the District Mayor to issue a decision concerning the remaining two-thirds of the property. The court found that, when deciding on the return of the one‑third of the property, the authorities had failed to determine the remainder of the applicants' claim. The court ruled that a decision be given within one month of the date of receipt of the applicants' case file.

On 20 March 1992 the District Mayor rendered a decision refusing to restore the two‑thirds of the property to the applicants. The Mayor noted that by the decision of 15 October 1987 the applicants' motion had been allowed in respect of one-third of the property and that no decision had been issued in respect of the remaining two‑thirds. Therefore, in view of the fact that the remaining two-thirds had been sold to third parties, the applicants' motion had to be dismissed. The applicants appealed.

On 30 June 1992 the City Mayor (Prezydent Miasta) dismissed their appeal. The applicant further appealed to the Supreme Administrative Court.

On 20 May 1993 the Supreme Administrative Court declared null and void the decision of 30 June 1992 and the preceding decision of the first instance. It found that the first-instance decision had not been duly signed and had therefore to be declared null and void ex officio. The matter was remitted to the District Mayor for re‑examination.

2. Facts after 1 May 1993

On 16 September 1993 a new decision refusing to restore the two‑thirds of the property to the applicants was issued. The applicants appealed. On 17 June 1994 the City Mayor quashed that decision finding that the District Mayor should have been excluded from examining the issue as the District Office had been a party to the sale of that part of the property to third parties which was the subject matter of the case.

Between 1994 and 1996 the matter remained dormant. Following numerous interventions by the applicants and their complaints about the inactivity of the administration, the District Prosecutor intervened and filed a complaint with the Board of Appeal of the Local Government (Samorządowe Kolegium Odwoławcze). On 13 November 1996 the Board of Appeal found that this complaint was substantiated and it obliged the District Office to give a decision in the applicants' case before 15 December 1996.

In the meantime, on 23 October 1996 the District Office rendered a decision on the merits of the case. With reference to the previous decision finding that the District Office had not been competent to examine matters relating to transactions to which the given Office had been a party, the District Office found that as the relevant provision had meanwhile been amended there were no obstacles for that Office to issue a decision. The applicants' motion in respect of the restitution of the remaining two‑thirds of the property was dismissed. The applicants appealed.

On 21 January 1997 the Board of Appeal of the Warsaw Local Government upheld the decision. The applicants filed an appeal with the Supreme Administrative Court. On 12 March 1999 the court dismissed their appeal and held that the two‑thirds of the property could not be restored to them as third parties had been vested with the right of perpetual use in respect of this part of the property. On 7 June 1999 the applicants were served with this judgment.

B. Relevant domestic law

1. Decree on the Ownership and Use of Land in Warsaw

The Decree on the 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 (plan zabudowania). ... (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.

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 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.

2. Right of perpetual use

Under Article XXXIX of the Decree of 11 October 1946 introducing the Property Law (prawo rzeczowe) and the Law on Land and Mortgage Registers, the right to construct and the right to a perpetual lease could be transferred into temporary ownership (własność czasowa). Section 40 of the Law of 14 July 1961 on Administration of Land in Towns and Estates (Ustawa o gospodarce terenami w miastach i osiedlach) replaced temporary ownership with perpetual use (użytkowanie wieczyste).

The right of perpetual use is defined in Articles 232 et seq. of the Civil Code (Kodeks Cywilny). It is an inheritable and transferable right in rem which, for ninety‑nine years, gives a person full benefit and enjoyment of property rights attaching to land owned by the State Treasury or municipality. It has to be registered in the court land register in the same way as ownership.

3. Inactivity of the administrative authorities

Under Article 35 of the Code of Administrative Procedure (“the Code”) of 1960 an administrative authority should give a decision on the merits of a case within two months. If this time-limit has not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time‑limit.

A party to administrative proceedings may make a complaint under Article 37 of the Code in order to urge the relevant administrative authority to issue a decision within the time-limits fixed in the Code. Moreover, in cases where an authority persistently failed to do so, a party could lodge, under sections 17, 26 and 30 of the Supreme Administrative Court Act 1995 as in force at the material time, a complaint with the Supreme Administrative Court against the authority's failure to give a decision.

In cases where allegations of inactivity were well‑founded, the Supreme Administrative Court could oblige that authority to issue a decision. Pursuant to section 30 of the Act, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity was legally binding on the authority concerned. If the authority did not comply with the decision, the court could, under section 31 of the 1995 Act, impose a fine on it. It also could itself give a ruling on the merits of the administrative case.