CASE OF ZJEDNOCZONE BROWARY WARSZAWSKIE HABERBUSCH I SCHIELE S.A. v. POLAND

FOURTH SECTION

CASE OF ZJEDNOCZONE BROWARY WARSZAWSKIE HABERBUSCH I SCHIELE S.A. v. POLAND

(Application no. 35965/03)

JUDGMENT

STRASBOURG

14 December 2010

This judgment is final but it may be subject to editorial revision.

In the case of Zjednoczone Browary Warszawskie Haberbusch i Schiele S.A. v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Ján Šikuta, President,
Lech Garlicki,
Vincent Anthony de Gaetano, judges,
and Fatoş Aracı, Deputy 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. 35965/03) 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 a Polish joint-stock company Zjednoczone Browary Warszawskie Haberbusch i Schiele S.A. (“the applicant”), on 30 October 2003.

2. The applicant was represented by Ms N. Ołowska-Zalewska, a lawyer practising in Warszawa.

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

4. On 12 January 2010 the Court decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was assigned to a Committee of three Judges.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant is a join-stock company with its registered seat in Warszawa.

A. The expropriation decision of 1948

6. By way of an administrative decision of 29 November 1948 a property owned by the applicant and located in Warsaw was expropriated pursuant to provisions of the 1946 Law on transfer to the State of the ownership of the main branches of the national economy (Ustawa z 3 stycznia 1946 r. o przejęciu na wlasność Państwa podstawowych gałęzi gospodarki narodowej).

B. Administrative proceedings

7. On 12 June 1991 the applicant lodged with the Ministry of Industry and Agriculture an application to have the expropriation decision declared null and void. The proceedings were subsequently conducted before the Minister of Finance.

8. On 30 October 2000 the Minister of Finance gave a decision and refused to declare the expropriation decision null and void.

9. On 17 November 2000 the applicant's lawyer requested the Minister of Finance to re-examine the case.

10. On 9 January 2001 the Minister of Finance upheld his own decision of 30 October 2000.

11. On 12 February 2001 the applicant lodged a complaint with the Supreme Administrative Court.

12. On 18 November 2002 the Supreme Administrative Court quashed both decisions of the Minister of Finance.

13. On 27 March 2003 the Minister of Finance gave a decision and stayed the proceedings finding that the examination of the case was dependent on the establishment of the components of the applicant's enterprise (ustalenie składników przedsiębiorstwa skarżącego), which fell within the competence of the Minister of Agriculture. On the same day the Minister of Finance requested the Minister of Agriculture to resolve the preliminary issue (zagadnienie wstępne) referred to above. Since then, the proceedings have been pending before the Minister of Finance.

14. On an unspecified date the applicant appealed against the decision to stay the proceedings.

15. On 30 April 2003 the Minister of Finance upheld the challenged decision. Since that date the proceedings have been stayed before the Minister of Finance.

C. Proceedings before the Minister of Agriculture

16. On 2 February 2005 the Minister of Agriculture gave a decision and stayed the proceedings.

17. The applicant requested a re-examination of the case.

18. On 18 April 2007 the Minister of Agriculture upheld his decision.

19. The applicant lodged a complaint with the Regional Administrative Court.

20. On 25 September 2007 the Warsaw Regional Administrative Court found the complaint well-founded and quashed both decisions of the Minister of Agriculture.

21. Subsequently, on 20 March 2008 the Minister of Agriculture gave a decision and discontinued the proceedings.

22. The applicant again requested a re-examination of the case.

23. On 5 February 2009 the Minister of Agriculture upheld his decision.

24. The applicant lodged a complaint with the Regional Administrative Court.

25. On 17 July 2009 the Warsaw Regional Administrative Court quashed both decisions of the Minister of Agriculture.

26. The proceedings are pending before the Minister of Agriculture.

D. The applicant's complaints about the excessive length of the proceedings

27. On an unspecified date in 2004 the applicant lodged a complaint about the inactivity on the part of the Minister of Agriculture.

28. On 19 October 2004 the Warsaw Regional Administrative Court found the complaint well-founded and ordered that the Minister of Agriculture give a decision on the preliminary issue within one month of the court's judgment.

29. The Minister failed to comply with the court's order and therefore, on 3 August 2005, the applicant requested the Warsaw Regional Administrative Court to impose a fine on him.

30. On 9 March 2006 the Warsaw Regional Administrative Court dismissed the complaint finding that on 4 February 2005 the Minister had given a decision and stayed the relevant proceedings. Therefore, although he did not give a decision on the merits, it could not be said that the Minister was completely inactive.

31. The applicant lodged a cassation appeal with the Supreme Administrative Court, which was dismissed on 14 November 2006.

32. Subsequently, on 20 March 2007, the applicant again complained to the Warsaw Regional Administrative Court about the inactivity on the part of the Minister of Agriculture.

33. On 13 July 2007 the Warsaw Regional Administrative Court discontinued the proceedings as being pointless finding that, on 18 April 2007, the Minister of Agriculture had given a decision and upheld his own decision to stay the proceedings.

II. RELEVANT DOMESTIC LAW AND PRACTICE

34. The relevant domestic law on remedies for inaction on the part of the administrative authorities is set out in the Court's judgment in the case of Grabiński v. Poland, no. 43702/02, §§ 60‑65, 17 October 2006.

THE LAW

I. THE GOVERNMENT'S REQUEST FOR THE APPLICATION TO BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION

35. On 17 May 2010 the Government submitted a unilateral declaration similar to that in the case of Tahsin Acar v. Turkey (Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, ECHR 2003‑VI), and informed the Court that they were ready to accept that there had been a violation of the applicant's right under Article 6 § 1 of the Convention as a result of the unreasonable length of the administrative proceedings in which the applicant is involved. In respect of non-pecuniary damage, the Government proposed to award PLN 20,000 to the applicant. The Government invited the Court to strike out the application in accordance with Article 37 of the Convention.

36. The applicant did not agree with the Government's proposal. The applicant's lawyer submitted that the amount proposed did not constitute sufficient just satisfaction for the damage the applicant had sustained and requested the Court to continue the examination of the application.

37. The Court observes that, as it has already held on many occasions, it may be appropriate under certain circumstances to strike out an application or part thereof under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued. It will depend on the particular circumstances whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see Tahsin Acar, cited above, § 75, and Melnic v. Moldova , no. 6923/03, § 22, 14 November 2006).

38. According to the Court's case-law, the amount proposed in a unilateral declaration may be considered a sufficient basis for striking out an application or part thereof. The Court will have regard in this connection to the compatibility of the amount with its own awards in similar length‑of‑proceedings cases, bearing in mind the principles which it has developed for determining victim status and for assessing the amount of non-pecuniary compensation to be awarded where it has found a breach of the “reasonable time” requirement (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 85‑107, ECHR 2006‑...; Scordino v. Italy (no.1) [GC], no. 36813/97, §§ 193-215, ECHR-2006‑-...; and Dubjakova v. Slovakia (dec.), no. 67299/01, 10 October 2004).

39. As to whether it would be appropriate to strike out the present application on the basis of the unilateral declaration made by the Government, the Court considers that the sum proposed in the declaration in respect of the non-pecuniary damage suffered by the applicant as a result of the alleged violation of the Convention does not bear a reasonable relationship to the amounts awarded by the Court in similar cases in respect of non‑pecuniary damage. Furthermore, the domestic proceedings are still pending (see paragraph 26 above).

40. On the facts, and for the reasons set out above, the Court finds that the Government failed to submit a statement offering a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require the Court to continue its examination of the case (see, by contrast, Spółka z o.o. WAZA v. Poland (striking out), no. 11602/02, 26 June 2007).

41. This being so, the Court rejects the Government's request for the application to be struck out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE ADMINISTRATIVE PROCEEDINGS

42. The applicant complained that the length of the proceedings was 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...”

43. The Government, having submitted a unilateral declaration, did not produce observations on that matter.

44. The proceedings were instituted on 12 June 1991 and are still pending. 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 has not yet ended. It has thus lasted over seventeen years at three instances.

A. Admissibility

45. 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

46. 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).

47. 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).

48. 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 is excessive and fails to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

49. The applicant also raised a complaint under Article 13 of the Convention claiming that the request for declaring a decision null and void had proven to be an ineffective remedy. Article 13 of the Convention 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.”

50. The Court reiterates that Article 13 of the Convention guarantees an effective remedy before a national authority as regards an alleged breach of rights and freedoms set forth in the Convention. However, the “effectiveness” of a “remedy” within the meaning of that provision does not depend on the certainty of a favourable outcome for the applicant (see Kudła v. Poland [GC], no. 30210/96, §§ 154 et seq., ECHR 2000-XI, §§ 156-157).

51. The fact that in the present case the applicants' claim for re‑examination of the case did not bring an effect desired by the applicant and the challenged decision was upheld does not in itself render the remedy referred to incompatible with Article 13 of the Convention.

52. As stated above, the expression “effective remedy” used in Article 13 of the Convention cannot be interpreted as a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, mutatis mutandis, Šidlová v. Slovakia, no. 50224/99, § 77, 26 September 2006).

53. In the light of the foregoing, the Court considers that in the circumstances of the present case it cannot be said that the applicants' right to an effective remedy under Article 13 of the Convention has not been respected.

54. 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.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

55. The applicant further complained under Article 6 § 1 of the Convention that the decisions of the Minister of Finance and the judgment of the Supreme Administrative Court had been based on improperly established facts and were unjust. It further complained under Article 1 of Protocol No. 1 about a violation of its rights to peaceful enjoyment of possessions.

56. The Court notes that the relevant proceedings are still pending. It follows that the complaints under Article 6 § 1 of the Convention and under Article 1 of Protocol No. 1 to the Convention, as premature, must be declared inadmissible under Article 35 § 1 and 4 of the Convention for non‑-exhaustion of domestic remedies.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

57. 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

58. The applicant claimed 70,939 Polish Zlotys (PLN) in respect of pecuniary and PLN 200,000 in respect of non-pecuniary damage. As regards the pecuniary damage the applicant produced copies of all judgments given in several sets of domestic proceedings which it had instituted in their attempts to have the property in question returned. All the claims lodged by the applicant were dismissed and the applicant had to bear costs of the proceedings. The pecuniary damage sought consists of the costs of the above-mentioned proceedings.

59. The Government did not express an opinion on the matter.

60. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court notes that in the present judgment it has found a violation of Article 6 § 1 of the Convention only in respect of the excessive length of proceedings. Therefore, the costs bore before the domestic courts concerning the protection of property cannot be granted. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the applicant EUR 14,000 under that head.

B. Costs and expenses

61. The applicant's lawyer also claimed PLN 8,325 for the costs and expenses incurred before the domestic courts and those incurred before the Court. She produced copies of invoices issued by other lawyers who had apparently represented the applicant in the domestic proceedings. She also produced a copy of an invoice issued by herself for the amount of PLN 1,800 for the legal representation before the Court.

62. The Government did not express an opinion on the matter.

63. Regard being had to the documents in its possession and to its case‑law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 450 for the proceedings before the Court.

C. Default interest

64. 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. Rejects the Government's request to strike the application out of the list;

2. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant:

(i) EUR 14,000 (fourteen thousand euros) in respect of non‑pecuniary damage;

(ii) EUR 450 (four hundred and fifty euros) in respect of costs and expenses;

(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;

5. 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.

Fatoş AracıJán Šikuta
Deputy RegistrarPresident

Full & Egal Universal Law Academy