CASE OF BELLER v. POLAND

1. The case originated in an application (no. 51837/99) against the Republic of Poland lodged with the Court under Article 3 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Joanna Beller (“the applicant”), on 11 March 1999.
2. The applicant, who had been granted legal aid, was represented by Mr Wojciech Hermeliński, a lawyer practising in Warszawa. The Polish Government (“the Government”) were represented by their Agents, Mr Krzysztof Drzewicki and, subsequently, by Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs.
3. The applicant complained under Article 6 of the Convention that her right to a fair hearing within a reasonable time had been breached. She also complained that the circumstances of the case amounted to an infringement of her right to the peaceful enjoyment of her possessions within the meaning of Article 1 of Protocol No. 1.
4. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. By a decision of 16 December 2003 the Court declared the application admissible.
6. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 193 4 and lives in Warsaw.
A. Facts and decisions before 1990
8. The applicant's father owned the so-called “Kraków Bishops'Palace” situated in the centre of Warsaw and the plot of land on which it stood. The Government submitted that 75 to 80 % of the building had been destroyed during the Second World War.
9. By virtue of the 19 4 5 Decree on the Ownership and Use of Land in Warsaw ( dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy ) the Warsaw municipality (and after 1950 the State Treasury) became the owner of all plots of land located in Warsaw. The decree gave the former owners the possibility of obtaining a perpetual lease (after 19 4 6 - temporary ownership) of a plot of land on request.
10. In 19 4 7 the applicant's father concluded, before a public notary, an agreement with a certain state institution, according to which that institution was to obtain the right of use of the property upon its declaration to reconstruct the palace. The Government submitted that the agreement at issue had never been enforced because it was illegal.
11. In 19 4 8 the applicant's father lodged, under the 19 4 5 Decree, a request to be granted the right of temporary ownership of the plot of land formerly owned by him. It was refused by a decision issued in 19 4 9, which was served neither on him, nor on his lawyer.
12. In 1951 the applicant's father died.
13. In 1955 another decision refusing the 19 4 8 request was issued. This decision was also not served.
14. On 1 4 March 1990 the applicant, as the sole heir to her father's property (the inheritance proceedings were completed in October 1990), filed with the Warsaw Śródmieście District Office ( urząd dzielnicowy ) a petition in which she requested the restitution of her property.
15. Subsequently, the Social Security Board ( Zakład Ubezpieczeń Społecznych ), which occupied the property, requested the administrative authorities to grant it the right of management ( zarząd ) of that property, but to no avail.
B. Proceedings concerning the perpetual use of the land
16. On 16 September 1991 the applicant was served with the decision of 1955 refusing her father the right of temporary ownership of the land.
17. On 2 4 September 1991 she lodged with the Warsaw Governor ( wojewoda ) a request for the annulment of that decision.
18. On 11 October 1991 the Warsaw Regional Prosecutor ( prokurator wojewódzki ) joined the proceedings, considering that in the light of the gravity of the alleged breaches of the law the participation of the prosecutor was necessary.
19. On 27 July 1992 the applicant lodged with the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) a complaint about the inactivity of the Governor, who had failed to issue a decision concerning her request.
20. On 11 December 1992 the court rejected the complaint, relying on the temporal limits of its jurisdiction.
21. On 2 4 December 1992 the Minister of Construction ( Minister gospodarki przestrzennej i budownictwa ) quashed the decision of 1955. He found that the impugned decision did not contain any reference to the 19 4 9 decision, whereas they concerned the same matter. The Minister further considered that the reasoning of the decision was not supported by any documents.
22. On 5 October 1993 the Head of the Warsaw District Office ( kierownik urzędu rejonowego ) refused to grant the applicant the right of perpetual use ( użytkowanie wieczyste, which replaced the former temporary ownership) of the land. He relied, inter alia, on the fact that over 70 % of the palace had been destroyed during the Second World War and that it could therefore, after reconstruction, be considered as a new building. Having reconstructed it on its own land, the State had become that building's owner.
23. On 1 March 199 4 the Warsaw Governor quashed that decision and discontinued the proceedings, considering that they had become devoid of purpose, because the request of the applicant's father had already been refused by the decision of 19 4 9.
24. On 16 October 1995 the Supreme Administrative Court allowed the applicant's appeal against the decision of 1 March 199 4. The court declared the Governor's decision null and void. It found that the Governor had overlooked the fact that the 19 4 9 decision had probably never been served on the applicant's father and that it should not, therefore, have been considered as having valid legal effect.
25. On 18 March 1996 the Governor quashed the decision of the Head of the District Office issued on 5 October 1993 and remitted the case for re-examination.
26. On 18 July 1997 the Warsaw District Office sent to the applicant a copy of the 19 4 9 decision by which her father had been refused temporary ownership.
27. On 1 August 1997 the applicant requested the annulment of that decision.
28. On 25 August 1997 the Warsaw Governor quashed the 19 4 9 decision and remitted the case for re-examination.
29. On 12 November 1997 the Head of the Warsaw District Office re-examined the request lodged by the applicant's father in 19 4 8. He granted the applicant the perpetual use of the land and declared that she retained the ownership of the building located there, in accordance with the 19 4 7 agreement. The Head of the District Office found that a plan for the future use of the building, prepared by the applicant, complied with the existing town - planning scheme.
30. The Social Security Board appealed against that decision.
31. On 25 February 1998 the Warsaw Regional Prosecutor raised an objection ( sprzeciw ) to that decision. She submitted, in passing, that the clause concerning the ownership of the building was only of a declaratory nature, i.e. it confirmed something that had already been stipulated in the 19 4 5 Decree. The contested decision should, in the prosecutor's argument, be set aside because the boundaries between the plots did not correspond to the boundaries between the buildings. Following that objection the Warsaw Governor instituted ex officio proceedings for the annulment of that decision.
32. On 3 April 1998 the Governor rejected an appeal against the decision of 12 November 1997 lodged by the Social Security Board. The Governor considered that only the former owners of properties located in Warsaw, or their legal successors, could have standing in proceedings instituted under the provisions of the 19 4 5 Decree. The Board did not have any rights in rem to the property concerned and, therefore, had no standing in the proceedings. The Board appealed to the Supreme Administrative Court.
33. On 6 April 1998 the Governor stayed the enforcement proceedings in respect of the decision of 12 November 1997, having regard to the objection lodged by the prosecuting authorities.
34. On 12 April 1999 the Supreme Administrative Court quashed the Governor's decision of 3 April 1998, pointing out that the Governor, having found that the Social Security Board had no standing in the proceedings, should have issued a decision discontinuing the appellate proceedings.
35. On 31 August 1999 the Regional Prosecutor withdrew her objection and subsequently the proceedings concerning the annulment of the decision of 12 November 1997 were discontinued. However, the proceedings concerning the appeal lodged by the Social Security Board were still pending.
36. On 15 December 1999 the Governor discontinued the appeal proceedings, relying on the Social Security Board's lack of standing in the proceedings under the provisions of the 19 4 5 Decree.
37. On 7 January 2000 the applicant, relying on the fact that the appeal proceedings against the award of the right to perpetual use had been discontinued by the decision of 15 December 1999, summoned a representative of the State Treasury to appear before a specified public notary for the purpose of concluding an agreement concerning the grant of perpetual use of the land. No representative of the State Treasury complied with the summons.
38. On 2 4 January 2000 the applicant requested the Supreme Administrative Court to dismiss the Board's petition to have the enforcement of that decision stayed. In reply, the court informed the applicant that the enforcement had been stayed ex lege.
39. On 18 January 2000 the Board appealed against the decision of 15 December 1999, submitting that the buildings it occupied were constructed in such a way that their walls did not run along the boundary between the plots of land underneath and, therefore, the 1997 decision awarding the applicant the right to perpetual use was impossible to enforce. The Board also argued that, being a State-owned entity occupying the property, it should take part in the proceedings in order to ensure the proper representation of the interests of the State.
40. In its pleadings of 13 March 2000 the Governor's Office ( Urząd Wojewódzki ) requested the Supreme Administrative Court to dismiss the Board's appeal, reiterating that it had no rights in rem to the property concerned.
41. On 21 November 2000 the Supreme Administrative Court allowed the Social Security Board's appeal and quashed the decision of 15 December 1999. It noted that in 198 4 the Board had been granted the use of a neighbouring plot of land and, on the strength of a law enacted in 1998, had become the owner of that plot. The court found that it was necessary to establish whether the plot owned by the Board overlapped with the plot covered by the 1997 decision granting the right to perpetual use to the applicant. If this was the case, the Board should be allowed to take part in the proceedings as a party.
42. On 23 July 2001 the Governor quashed the decision of 12 November 1997. He pointed out that in the course of further proceedings the line of the boundary in question should be established and, consequently, it should be decided whether the Board had standing. The Governor referred to legislation which had entered into force on 1 January 1999, under which the Board had become ex lege the owner of lands it had been managing. The applicant appealed against that decision to the Supreme Administrative Court. She stressed that the case had already been examined by that court five times. She also submitted that the Governor could have ruled on the Board's rights in the proceedings himself on the basis of the ample material already contained in the case-file.
43. Meanwhile, on 26 November 1999 the President of the Office for Housing and Urban Development ( Prezes Urzędu Mieszkalnictwa i Rozwoju Miast ), on the request of the Ministry of Labour, instituted proceedings for the annulment of the decision of 25 August 1997 (quashing the above-mentioned 19 4 9 decision).
44. On 19 October 2001 the applicant lodged with the Supreme Administrative Court a complaint about the inactivity of the President of that office.
45. On 13 December 2001 the President of the Office for Housing and Urban Development annulled the decision of 25 August 1997, by which the 1949 refusal to grant temporary ownership to the applicant's father had been quashed. He considered that the Governor had not been competent to issue that decision as following many legislative changes he was not to be considered as legal successor of the authority which had been competent to give this decision under the provisions of the 1945 Decree.
46. On 18 December 2001 the Supreme Administrative Court asked the applicant whether she was pursuing her complaint about inactivity, despite the fact that the authority concerned had given a decision. She withdrew her complaint.
47. On 30 April 2002 the President of the Office for the Housing and Urban Development, after the re-examination of the case requested by the applicant, upheld his own decision of 13 December 2001. He reiterated that following changes in the legislation concerning the powers of local authorities and their hierarchy, the Warsaw Governor, on the strength of an interpretation of this legislation given on 19 August 1999 by the Prime Minister, had not been competent to issue the decision of 25 August 1997.
48. The applicant lodged an appeal with the Supreme Administrative Court. She submitted that the interpretation relied on by the President of the Office for Housing had been given two years after the decision of August 1997 on the basis of which she could have acquired her rights. She stressed that before that interpretation had been given, the established practice considered that the Warsaw Governor was competent to give decisions such as in her case.
49. On 25 March 2004 the Warsaw Regional Administrative Court dismissed the applicant's appeal. It acknowledged that the interpretation given in 1999 could not have been validly relied on in support of the quashing of the 1997 decision as it had been given in a different case and concerned different legal issues. However, the court, having analysed the evolution of the legislation regulating the powers of local administration since 1938, concluded that it did not change the fact that the Warsaw Governor had lacked competence to give the 1997 decision.
50. The applicant lodged an appeal on points of law against this judgment with the Supreme Administrative Court, arguing that the legal analysis of the lower court as to the competence to give the 1997 decision was erroneous.
51. The proceedings are currently pending before the Supreme Administrative Court.
52. In 1990 the applicant enquired about the legal status of the disputed property. She received a certificate from a public notary office stating that in the land-and-mortgage register her father was mentioned as the owner of property no. 4 96. Although in 1983 the State authorities had requested that an entry be made in the register declaring that the State Treasury was the owner, the request was not granted, as they had failed to submit the 1955 decision refusing the applicant's father the right to temporary ownership with a clause confirming its legal force. In 1985 the proceedings concerning that request were stayed. Another entry in the register concerned the 19 4 5 decree, following which the State Treasury became the owner of the land. The certificate contains a clause stating that it does not concern the ownership rights to the buildings located on the plot.
53. On 28 January 1991 the public notary office refused the applicant's request to make an entry replacing the name of her father by her name in the land register. The office pointed out that, as long as the issue of perpetual use was not decided, it could not make any amendments to the register.
54. Similar information is contained in a certificate issued on 4 April 1996 by the land-and-mortgage register department of the Warsaw District Court.
A. Decree on the Ownership and Use of Land in Warsaw
55. In accordance with the Decree of 26 October 19 4 5 on the Ownership and Use of Land in Warsaw ( dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy ) the ownership of all land was transferred to the municipality. The decree provided in so far as relevant:
“Article 5. Buildings and other objects located on the land being transferred to the municipality's ownership remain the property of those who have owned them so far, unless specific provisions provide otherwise.
Article 7. (1) The owner of a plot of land ... can within 6 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.
(5) In case no request, as provided for in paragraph (1), is filed, or the former owner is for any other reasons not granted a perpetual lease or the right to construct, the municipality is obliged to pay compensation pursuant to Article 9.
Article 8. In case the former owner is not granted the right to a perpetual lease or the right to construct, all buildings located on the land shall become the property of the municipality, which is obliged to pay, pursuant to Article 9, compensation for the buildings which are fit to be used or renovated.
Article 9. ... (2) The right to compensation begins to apply six months after the day of taking the land into possession by the municipality of Warsaw and expires three years after that date. ...”
56. Under Article XXXIX of the Decree of 11 October 19 4 6 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 4 0 of the Law of 1 4 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 ).
57. Pursuant to section 33(2) of the Local State Administration Act of 20 March 1950, ownership of property situated in Warsaw was assigned to the State Treasury.
58. The Local Self-Government Act of 10 May 1990 re-established local self-government. Pursuant to section 5(1), ownership of land which had previously been held by the State Treasury and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality.
59. The right to perpetual use is regulated by the Civil Code. An individual or a legal entity may be granted such a right over land owned by the State or a local authority. The right comprises a right to use the land to the exclusion of others for ninety-nine years, on payment of a yearly fee. The person entitled to the right can dispose of it.
60. Article 16 of the Code of Administrative Procedure stipulates that those administrative decisions, against which no further appeal is available, are final. A decision becomes final if, inter alia, no appeal against it has been lodged with the competent authority within two weeks as laid down by Article 129 of the Code.
D. Participation of prosecuting authorities in administrative proceedings
61. Article 18 4 of the Code of Administrative Procedure provides that prosecuting authorities can lodge an objection against any final administrative decision if it they consider that it is flawed with procedural or substantive shortcomings such as would justify its annulment under the relevant provisions of the Code. There is no time-limit for the lodging of such an objection.
62. The land registers are run by the Land Register Divisions of the District Courts. Article 2 4 provides that a separate file shall be opened for each property. Pursuant to Article 25, the files shall be divided into four sections. The first section shall identify the real property. The second chapter shall name its owner or owners. The third section shall list rights in rem and other rights of third parties encumbering the property, and the fourth section shall contain entries concerning mortgages.
63. Article 3 of the Land Register Act establishes a legal presumption that the title registered in the land register corresponds to the actual legal status of the property.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
64. The applicant alleged a violation of Article 6 § 1 of the Convention, arguing that the proceedings in which she tried to vindicate her rights to compensation have been excessively lengthy.
65. The relevant provisions of Article 6 § 1 provide:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal ...”
A. Period to be taken into consideration
66. The Court notes that the proceedings began on 1 4 March 1990 and are still continuing. They have therefore already lasted over fourteen years, of which a period of over eleven years and nine months falls within the Court's temporal competence, Poland having recognised the right of individual petition as from 1 May 1993. Given its jurisdiction ratione temporis, the Court can only consider the period which has elapsed since 1 May 1993, although it will have regard to the stage reached in the proceedings on that date (see, among other authorities, Zwierzyński v. Poland, no. 30210/96, § 123, ECHR 2000-XI).
B. Reasonableness of the length of the proceedings
67. The Court will assess the reasonableness of the length of the proceedings in the light of the circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. It will also take account of what is at stake for the applicant (see, among many other authorities, Biskupska v. Poland, no. 39597/98, § 4 3, 11 July 2003 ).
68. The Government submitted that the case was very complex, mainly due to the unclear legal status of the disputed property. The administrative authorities had had to establish whether the decision of 19 4 9 had been properly served on the applicant's father and whether the Social Security Board could participate in the proceedings. They were of the view that the case was dealt with without undue delay.
69. The applicant considered that the Government's contention as to the complexity of the case was not supported by any convincing arguments. She stated that the legal status of the property was clear. The applicant made reference to a number of periods of inactivity on the part of the administrative organs and the Supreme Administrative Court.
70. The Court acknowledges that the case was complex, both as to the facts and to the law. However, as regards the conduct of the authorities, the Court notes that there was a period of fifteen months of inactivity between 1 March 199 4 when the decision of the Warsaw Governor was given, and the judgment of the Supreme Administrative Court of 16 October 1995. Subsequently, there was no progress in the proceedings for sixteen months between the date of the subsequent decision of the Warsaw Governor of 18 March 1996 and the date when this decision was executed on 18 July 1997. Later on, twelve months elapsed between April 1998, when the Social Security Board lodged their appeal, and 12 April 1999, when the Supreme Administrative Court gave judgment relating to that appeal. There was a further period of eleven months of inactivity between the date on which another appeal had been lodged with that court and its judgment of 21 November 2000. Lastly, eight months elapsed between that judgment and its execution by the Warsaw Governor. These periods of inactivity, while not excessive by themselves, resulted in an overall length of proceedings exceeding what can be considered acceptable under Article 6 § 1 of the Convention.
71. Consequently, having regard to all the circumstances of the case, the Court considers that the overall length of the proceedings complained of exceeded what was reasonable. There has therefore been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
72. The applicant complained of an infringement of her right to the peaceful enjoyment of her possessions within the meaning of Article 1 of Protocol No. 1. The Government contested this.
73. Article 1 of Protocol No. 1 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.”
74. The Court observes that the domestic proceedings to determine the applicant's claims are currently pending before the Supreme Administrative Court. Therefore, in so far as the applicant relies on Article 1 of Protocol No. 1 to the Convention, the Court considers that it would be premature to take a position on the substance of this complaint. In so far as the applicant complains about the length of those proceedings, the Court considers that Article 1 of Protocol No.1 complaint does not give rise to any separate issue (see, for example, Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194-C, § 23, Di Pede v. Italy, judgment of 26 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, p. 17, § 35).
III. APPLICATION OF ARTICLE 4 1 OF THE CONVENTION
75. Article 4 1 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.”
76. The applicant sought compensation for pecuniary damage in the amount of USD 4 0,000,000. She argued that this amount represented the income she could have obtained from the rent of the building concerned, together with the applicable legal interest due as from 1 January 1985. As a result of the fact that her case remains undecided, she has lost this prospective income.
77. She further claimed compensation for non-pecuniary damage resulting from the violation of her rights guaranteed by the Convention in the amount of USD 50,000.
78. As to pecuniary damage, the Government submitted that the applicant had not adduced any evidence to show that she suffered any actual loss. In their submission, the applicant claimed highly hypothetical profits which could not be regarded as justified. They further argued that the amounts claimed were excessive.
79. As to non-pecuniary damage, the Government submitted that the amount claimed by the applicant was also excessive.
80. The Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim. On the other hand the Court is of the view that the applicant must have sustained some non-pecuniary damage, which the mere finding of a violation cannot adequately compensate. The Court decides to award on an equitable basis EUR 7 ,000 under this head.
81. The applicant claimed EUR 4 ,000 for the legal fees incurred in the proceedings before the Court.
82. The Government invited the Court to reject the applicant's claim as excessive.
83. The Court, having regard to the nature of issues before the Court, considers that EUR 2,000 constitutes a reasonable award.
84. 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.
1. Holds unanimously that there has been a violation of Article 6 § 1 of the Convention;