FOURTH SECTION
CASE OF KOSIŃSKA v. POLAND
(Application no. 42797/06)
JUDGMENT
STRASBOURG
14 December 2010
FINAL
14/03/2011
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kosińska v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. de Gaetano, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 23 November 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 42797/06) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Grażyna Kosińska (“the applicant”), on 4 October 2006.
2. The applicant was represented by Mr K. Kinder, a lawyer practising in Toruń. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3. On 8 June 2009 the President of the Fourth Section of the Court 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1955 and lives in Włocławek.
A. Background to the proceedings
5. The applicant's parents co-owned a carpenter's workshop and a house located in Włocławek. On 17 December 1976 a local land development plan was adopted under which a rain and a sanitary ditch were to be built on their land. By a notarial deed of 23 June 1980 the representative of the State Treasury, the applicant's parents and the remaining co-owners concluded a contract of sale, under the provisions of the Law on Expropriation of 12 March 1958 (Ustawa o zasadach i trybie wywłaszczaniu nieruchomości). They agreed to sell the plot of land listed in the local land register as plot no. 143 for the agreed price.
6. After the sale, the property was leased back to the applicant's parents.
7. The applicant's father died on 7 November 1988. The applicant and her mother, G.S., inherited from him.
B. Proceedings for restitution of property
1. Facts prior to 1 May 1993
8. On 8 February 1989 the applicant's mother lodged a motion with the Włocławek Town Office (Urząd Miejski) for restitution of the property. She argued that the local land development plan had not been implemented and therefore the State no longer required her property for the reasons of public interest for which it had been expropriated.
9. It appears that by letters of 7 March and 3 April 1989 the applicant's mother contacted the authorities requesting them to conclude a new lease contract. It seems that her letters have not been answered.
10. On 15 March 1989 the Włocławek Town Office dismissed her motion, arguing that only a property which had been expropriated, and which had not been sold, could be recovered under the Law on Expropriation.
11. On 5 May 1989 the Governor's Office (Urząd Wojewódzki) quashed the decision of 15 March 1989 and discontinued the proceedings, noting that the claim should have been lodged before the civil courts.
12. On 7 December 1989 the Company of Housing Economy (Przedsiębiorstwo Gospodarki Mieszkaniowej) informed the applicant's mother about the termination of the lease contract. This decision was enforced on 21 August 1991, when the applicant and her mother had left the property.
13. On 14 March 1990 the Supreme Administrative Court (Naczelny Sąd Administracyjny) quashed the decisions of 15 March and 5 May 1989. It referred to the Supreme Court's resolution of 20 February 1986, which held that a transfer of a real estate to the State Treasury under a sale contract was to be considered an expropriation for the purposes of the restitution proceedings.
14. By a decision of 7 May 1991 the Mayor of Włocławek (Prezydent Miasta) stayed the proceedings, pending the adoption of the new local land development plan.
15. On 18 July 1991 the Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze) quashed the decision of 7 May 1991.
16. On 12 August 1992 the Mayor of Włocławek discontinued the proceedings.
17. It appears that on 7 September 1992 the applicant's mother lodged yet another motion for restitution with the Włocławek District Office (Urząd Rejonowy).
2. Facts after 30 April 1993
18. On 13 May 1993 the Włocławek District Office dismissed the motion. The decision was served on the applicant, her mother and other co‑owners of the property.
19. On 6 July 1993 the Governor's Office quashed the decision of the District Office and remitted the case.
20. On 22 November 1993 the Head of the District Office (Kierwonik Urzędu Rejonowego) dismissed the motion for restitution.
21. On 11 January 1994 the Governor's Office quashed the decision of 22 November 1993 and remitted the case.
22. On 25 April 1994 the applicant lodged a complaint with the Governor about the inactivity of the Włocławek District Office.
23. On 24 May 1994 the Governor's Office acknowledged the delay and informed the applicant that the decision would be issued by 30 June 1994.
24. On 1 September 1994 the Włocławek District Office apologised for the delay in the proceedings, claiming that they had not, until then, received necessary information from the Ministry of Town and Country Planning (Ministerstwo Gospodarki Przestrzennej i Budownictwa).
25. By a decision of 14 November 1994 of the Włocławek District Office the real estate was restored to the applicant and other co-owners.
26. On 5 January 1995 the Governor's Office quashed the decision of the District Office and remitted the case for re-examination.
27. On 27 February 1995 the applicant together with the remaining co‑owners submitted a request under the Land Administration and Expropriation Act of 29 April 1985 (Ustawa o gospodarce gruntami i wywłaszczaniu nieruchomości) for partial restitution of the real estate (the carpenter's workshop with the adjacent land) – a part of the property that had not been inhabited.
28. By a notarial deed of 13 March 1995 the applicant's mother transferred all her claims and obligations connected with the real estate to the applicant.
29. On 5 April 1995 the applicant lodged a complaint with the Governor about the inactivity of the Włocławek District Office.
30. On 29 April 1995 the Governor's Office acknowledged the delay and informed the applicant that a decision would be issued by 14 June 1995.
31. By a decision of 23 May 1995 of the Włocławek District Office the real estate was partly returned to the applicant and the other co-owners.
32. On 3 July 1995 the Governor's Office upheld that decision.
33. On 14 January 1997 the Supreme Administrative Court quashed the decisions of 23 May and 3 July 1995, holding that the calculation of the re‑payment was wrong.
34. On 30 October 1998 the real estate was divided into two parts: real estate no. 143/1 and real estate no. 143/2.
35. On 23 January 1999 the applicant lodged a complaint about the inactivity of the Governor's Office.
36. On 22 February 1999 the Kujawsko-Pomorski Governor's Office apologised for the delay. They explained that the delay had been caused by a new law, which had changed the competence of the administrative authorities to deal with the case. It had entered into force on 1 January 1998.
37. On 12 November 1999 the Mayor of Włocławek decided to restore to the applicant a plot of land listed in the local land register as plot no. 143/2 (a part of property that she has claimed in her motion of 27 February 1995). She was ordered to repay the compensation which her parents had received for the expropriation of this plot. The applicant took possession of it on 12 January 2000. The applicant did not lodge an appeal against this decision.
38. On 29 May 2000 the applicant again filed a motion for restitution of the plot of land listed in the local land register as plot no. 143/1.
39. On 31 August 2001 the Mayor of Włocławek gave a decision in which it allowed the applicant's action. The property in question was restored to the applicant and the other co-owners. The applicant appealed against this decision, arguing that the authorities had failed to address the issue of the persons inhabiting the property.
40. On 26 October 2001 the Kujawsko-Pomorski Governor upheld the first‑instance decision. The applicant appealed.
41. On 21 June 2005 the Regional Administrative Court (Wojewódzki Sąd Administracyjny) quashed the decisions of 31 August and 26 October 2001.
42. On 21 October 2005 the Mayor of Włocławek District (Starosta Powiatu) was appointed as the competent administrative authority to deal with the applicant's case.
43. On 23 November 2005 the applicant was informed that all evidence had been obtained.
44. On 21 February 2008 the applicant complained about the inactivity of the Mayor of Włocławek District to the Kujawsko-Pomorski Governor's Office.
45. On 17 April 2008 the Mayor of Włocławek District acknowledged the delay in the proceedings and informed the applicant that the persons responsible for the delay would be identified.
46. By a decision of 21 May 2008 the Kujawsko-Pomorski Governor informed the applicant that a decision would be issued by 31 July 2008.
47. On 21 August 2008 the Mayor of Włocławek District gave a decision. It decided to restore to the applicant real estate no. 143/1. She was ordered to repay the compensation received by her parents for the expropriation of that plot. This decision became final on 5 September 2008. The applicant has refused to take possession of the plot, as it is inhabited.
C. Civil proceedings for payment
48. On 20 September 2003 the applicant lodged a claim for compensation for the alleged unlawful actions of the Włocławek Community. She submitted that for eleven years she could not use her real estate.
49. On 12 April 2005 the Włocławek Regional Court (Sąd Okręgowy) gave judgment and dismissed the applicant's claim. The applicant appealed.
50. On 19 April 2006 the Gdansk Court of Appeal (Sąd Apelacyjny) upheld the first-instance judgment. The applicant was served with the judgment on 10 October 2006. It appears that the applicant did not lodge a cassation appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
51. The relevant domestic law and practice concerning remedies for the excessive length of administrative proceedings, in particular the applicable provisions of the Code of Administrative Procedure and the Act on Proceedings before Administrative Courts, are described in the cases of Grabiński v. Poland no. 43702/02, §§ 60-65, 17 October 2006, Koss v. Poland, no. 52495/99, §§ 21-25, 28 March 2006, and Kaniewski v. Poland no. 8049/02, §§ 22-28, 8 November 2005.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE PROCEEDINGS
52. The applicant 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...”
53. The Government contested that argument.
A. Admissibility
1. General remarks
54. The Government first submitted that the applicant had been involved in three sets of administrative proceedings, the length of which should be assessed separately. They noted that each set of proceedings had concerned a different motion and each had been concluded with a different decision. In that respect they argued that “the first set of proceedings” had lasted from 8 February 1989 until 12 August 1992; “the second set of proceedings” had lasted from 7 September 1992 until 12 November 1999 and “the third set of proceedings” had lasted from 29 May 2000 until 21 August 2008.
55. The applicant's representative opposed the Government's proposal to assess the length of the proceedings separately.
56. The Court notes that the first motion was lodged by the applicant's mother on 8 February 1989. The proceedings were, however, for reasons not explained to the Court, discontinued on 12 August 1992 (see paragraph 16 above). Subsequently, a motion requesting restitution of the entire property was lodged on 7 September 1992. The Court further notes that on 27 February 1995 the applicant requested to have a part of the property returned (see paragraph 27 above). The Court is of opinion that by lodging this request – and therefore asking for the property in question to be divided into two parts - the applicant wanted to simplify the procedure and in consequence, to accelerate the proceedings. It appears that the applicant's choice of legal action was indeed correct, as the decision returning a part of her property was already given on 12 November 1999. Accordingly, the applicant's motion of 28 May 2000 (paragraph 38 above) is to be seen as a consequence of her earlier choice of action (see paragraph 27 above) and not as a new motion initiating a different set of proceedings. The Court finds it immaterial that the proceedings were concluded with different decisions (see paragraphs 37 and 47 above), as the proceedings were initiated by a motion lodged on 8 February 1989, aiming at acquisition of the entire property in question. For those reasons the Court considers that the length of the proceedings should be assessed globally.
2. Incompatibility ratione temporis and incompatibility with the requirement of the submission of the application within a six‑month time-limit
57. The Government submitted that “the first set of proceedings” and a part of “the second set of proceedings” were incompatible ratione temporis, as the Court's jurisdiction covered only the period after the date of ratification of the Convention or its Protocols by the respondent State. They further submitted that the complaint concerning the length of “the first set of proceedings” and the length of “the second set of proceedings” were inadmissible for failure to comply with a six-month time-limit.
58. The applicant's representative contested these arguments.
59. The Court's jurisdiction ratione temporis covers only the period after the date of ratification of the Convention and its Protocols by the respondent State.
In the present case the Court decided that the length of the administrative proceedings should be assessed globally (see paragraph 56 above). The Court recalls that Poland recognised the right of individual petition on 1 May 1993; hence, the Court's jurisdiction began on that date. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time (see paragraph 73 below). Having regard to the above, the Court does not find it necessary to examine the Government's objection.
60. As to the alleged incompatibility with the 6-month time-limit, the Court is of the opinion that in view of its findings above (see paragraph 56 above), it is no longer necessary to rule on the matter.
3. Exhaustion of domestic remedies
61. The Government raised a preliminary objection that the applicant had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention. They maintained that the applicant had a possibility of seeking compensation for the damage resulting from the excessive length of proceedings before the Polish courts under Article 417 of the Civil Code and additionally, from 1 September 2004, under Article 417¹ § 3 of the Civil Code.
The Government stressed that although the applicant made use of the remedy provided under Article 417 of the Civil Code, her action was lodged against the Włocławek Community, whereas she should have brought an action against all the authorities involved in the proceedings (see paragraphs 48-50 above).
62. They further submitted that in the course of “the third set of proceedings” – that is between 29 May 2000 and 21 August 2008 - the applicant could have lodged a complaint under section 16 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”), as her appeal had been pending for almost four years before the Regional Administrative Court.
63. Giving examples of the Court's case-law, the applicant's representative stated that the rule of exhaustion of domestic remedies was neither absolute nor capable of being applied automatically. He stressed that the applicant had been unsuccessful in lodging her compensation claim with the civil court and noted that the fact that her claim was lodged only against the Włocławek Community and not against all the authorities, had been a consequence of the administrative transformations in Poland that resulted in legal uncertainty and inconsistency in the jurisdiction. In that respect he also pointed out to several changes of civil law provisions governing liability in tort.
Lastly, he emphasised that the Article 417¹ of the Civil Code came into force on 1 September 2004 only.
64. The Court observes that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. The rule of exhaustion of domestic remedies contained in that provision requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, § 65).
In addition, for the purposes of reviewing whether the rule of exhaustion has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant (see Akdivar, cited above, § 69).
65. The Court notes that the applicant lodged, on several occasions, complaints about inactivity on the part of the administrative authorities responsible for giving a decision (see paragraphs 22, 29, 35 and 44 above). The competent supervision bodies found the complaints well-founded, apologised for the delays and set new time-limits for giving a decision (see paragraphs 23-24, 30, 36 and 45-46 above).
66. The Court further observes that according to Article 417¹ § 3 of the Civil Code no claim for damages resulting from unreasonable length of administrative proceedings may arise unless it has been formally determined that there had been an unlawful failure to issue an administrative decision within the relevant time-limits. The Court also notes that the provision relied on by the Government entered into force on 1 September 2004. It also observes that prior to that date the applicant resorted to remedies designed to accelerate the process of obtaining an administrative decision, namely an appeal under Article 37 of the Code of Administrative Procedure (see paragraph 65 above).
67. Furthermore, the Court notes that the Government provided an example of the domestic courts' judgments indicating that a claim for compensation based on Article 417 of the Civil Code could, in some circumstances, be an effective remedy. However, the judgment relied on by the Government was, at the time of its delivery, no more than an isolated example of jurisprudence, rather than a sufficiently established judicial practice and it cannot therefore be regarded as presenting a consolidated and well-established judicial practice (see Boszko v. Poland, no. 4054/03, § 35, 5 December 2006; Grabiński v. Poland, no. 43702/02, § 74, 17 October 2006; and Pióro and Łukasik v. Poland, no. 8362/02, § 35, 2 December 2008).
Moreover, leaving aside the fact that when claiming compensation under Article 417 of the Civil Code the applicant directed her action merely against the Włocławek Community, the Court notes that her claim was in any event unsuccessful.
68. In so far as the Government submit that the applicant has failed to make use of the remedy provided under the 2004 Act, the Court notes that this complaint could only be brought in respect of the proceedings before the Regional Administrative Court – that is the part of the procedure which was not exceptionally lengthy. Moreover, the proceedings before the administrative court ended on 21 June 2005, that is shortly after the 2004 Act entered into force.
In any event, the Court notes that the overall length of the proceedings in the present application occurred essentially before the administrative authorities, rather than before the administrative court. In view of the above, the Court is of the opinion that having exhausted the available remedy under Article 37 of the Code of Administrative Procedure, the applicant was not required to embark on another attempt to obtain redress by lodging a complaint under the 2004 Act.
69. In these circumstances the Court is of the opinion that the remedies the applicant used were adequate and sufficient to afford her redress in respect of the alleged breach (see Puczyński v. Poland, no. 32622/03, § 36, 8 December 2009).
It follows that the Government's plea of inadmissibility on the ground of non‑exhaustion of domestic remedies must be dismissed.
4. Conclusion as to admissibility
70. The Court notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
71. The Government refrained from expressing an opinion on the merits of the complaint.
72. The applicant's lawyer submitted in general terms that the proceedings had been unreasonably lengthy and that the several unjustified delays in the proceedings were not attributable to the applicant, but to the authorities.
73. The Court notes that the proceedings commenced on 8 February 1989. However, the period to be taken into consideration began only on 1 May 1993, when the recognition by Poland of the right of individual petition took effect. Nevertheless, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The period in question ended on 21 August 2008. It thus lasted fifteen years and some three months.
74. 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).
75. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).
76. The Court considers that the case involved a certain degree of complexity. There is, on the other hand, nothing to suggest that the applicant's activities unduly contributed to the delay in the examination of her case. On the contrary, the Court is of the opinion that the applicant's request for partial restitution of the property had in fact expedited the procedure for restoration.
77. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
78. The applicant complained that her property had unlawfully been taken by the State and kept in their possession, despite their obligation, arising under the Land Administration and Expropriation Act of 1985, to return it to the original owner. In that respect the applicant further alleged that the length of the proceedings for restitution infringed her right to the peaceful enjoyment of her possessions. The applicant invoked Article 1 of Protocol No. 1, which reads as follows:
“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.”
79. The Government submitted that the Court had competence to examine the facts of the present case with respect to the impugned violation of the provisions of Article 1 of Protocol No. 1 to the Convention only in so far as they occurred after 10 October 1994.
80. They further submitted that the applicant lacked standing, as she could not claim to be a victim of a violation of the Convention. In that respect they underlined that the property in question had been in the lawful possession of the State, as the applicant's parents had received compensation for the property taken from them and the amount thereof had never been questioned by the applicant. They also noted that the State was under no obligation to return the property in question.
81. Lastly, the Government expressed their opinion that the issue of length of the proceedings could not automatically result in a finding of a violation of the applicant's right to a peaceful enjoyment of her possessions. They submitted that the complaint about the length of the restitution proceedings was to be examined under Article 6 § 1 of the Convention only.
82. The applicant's lawyer did not agree with the Government's submissions. He pointed to the 14 March 1990 judgment of the Supreme Administrative Court (see paragraph 13 above), in which the court stated that in accordance with the Supreme Court's resolution of 20 February 1986, a transfer of a real estate to the State Treasury under a sale contract was to be considered an expropriation for the purposes of the restitution proceedings.
In that respect he referred to the 1985 Land Administration and Expropriation Act, which stated that any real estate expropriated by the State was to be returned to its former owners at their request, if a property was no longer necessary for the public interest reason that justified the expropriation.
Lastly, he submitted that the compensation received by the applicant's parents in the 1980s for the property in question had not corresponded to its real value.
83. The Court's jurisdiction ratione temporis covers only the period after the date of ratification of the Convention and its Protocols by the respondent State. The Court notes that, in respect of Poland, Protocol No. 1 to the Convention entered into force on 10 October 1994.
It follows that in so far as the applicant complains about the taking of her property and the amount paid to her in compensation, her complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
84. As to the applicant's victim-status, according to Article 34 of the Convention, “the Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto ...”.
85. The Court further recalls that Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property which was transferred to them before they ratified the Convention. Nor does Article 1 of Protocol No. 1 impose any restrictions on the Contracting States' freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore the property rights of former owners (see Kopecký v. Slovakia [GC], no. 44912/98, § 35(d), ECHR 2004-...).
86. The Court notes that under the Land Administration and Expropriation Act of 29 April 1985 and in view of the Supreme Court's resolution of 20 February 1986 (see paragraph 13 above), the applicant had a possibility of lodging a claim with the domestic authorities, requesting the restitution of the property taken from her, provided that it was no longer required by the State for the public interest reasons for which it had been expropriated. The applicant lodged such a claim and, by decisions of 12 November 1999 and 21 August 2008 (see paragraphs 37 and 47 above), the property was entirely restored to her. Thus, the applicant's claim for restitution was fully satisfied by the national authorities. In view of that, the applicant does not have any legal interest in pursuing her complaint under Article 1 of Protocol No. 1 and consequently, she cannot be considered a victim of a violation of the impugned provision.
87. Consequently, what remains to be examined by the Court is the issue of the length of the proceedings. However, in so far as the applicant complains that the length of the restitution proceedings resulted in a breach of the right to peaceful enjoyment of her possessions, the Court considers, in view of its finding under Article 6 § 1 (see paragraph 77 above), that Article 1 of Protocol No.1 complaint does not give rise to any separate issue (see Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194-C, p. 47, § 23; Beller v. Poland, no. 51837/99, § 74, 1 February 2005).
88. Having regard to the foregoing, the Court finds that the applicant's complaint under Article 1 of Protocol No. 1 must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention, as being manifestly ill‑founded.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
89. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
90. The applicant claimed 2,913,387.56 Polish zloty (PLN) in respect of pecuniary damage and PLN 170,000 in respect of non-pecuniary damage (PLN 100,000 in respect of Article 6 complaint and PLN 70,000 in respect of her complaint under Article 1 of Protocol No. 1 to the Convention).
91. The Government contested these claims. They argued that the applicant's claim for pecuniary damage was wholly unjustified and her claim for non-pecuniary damage was excessive and inconsistent with the Court's case-law.
92. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award her EUR 11,100 under that head.
B. Costs and expenses
93. The applicant's lawyer claimed PLN 15,495.00 for the costs of legal assistance and other expenses. They presented bills for legal representation before the Court amounting to PLN 12,200 and other bills for the costs of translation, expert's opinion and costs incurred in the domestic proceedings.
The lawyer's additional costs for legal representation were not included in the file, as belated.
94. The Government contested these claims. They argued that compensating the applicant for translation costs in a situation where she has been represented by a lawyer was unjustified. Moreover, they claimed that some of the applicant's demands concerned costs incurred before the domestic courts.
95. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 3,000 for costs and expenses in the proceedings before the Court.
C. Default interest
96. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 11,100 (eleven thousand one hundred euros) in respect of non‑pecuniary damage and EUR 3,000 (three thousand euros) for costs and expenses, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 14 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy