CASE OF ŻUK v. POLAND

FOURTH SECTION

CASE OF ŻUK v. POLAND

(Application no. 48286/11)

JUDGMENT

(Merits)

STRASBOURG

6 October 2015

FINAL

06/01/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Żuk v. Poland,

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

Guido Raimondi, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Krzysztof Wojtyczek,
Faris Vehabović,
Yonko Grozev, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 1 September 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 48286/11) 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 Danuta Bronisława Żuk (“the applicant”), on 22 July 2011.

2. The applicant was represented by Mr Z. Śmigielski, a lawyer practising in Szczecin. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

3. The applicant alleged that her right to the peaceful enjoyment of her possessions had been breached.

4. On 3 June 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1951 and lives in Szczecin.

6. The applicant and her husband married in 1979 under the statutory regime of common marital property, provided for by the provisions of the 1994 Family and Custody Code. Under the applicable provisions of that Code they had equal shares in their common property.

A. The administrative decision in the applicant’s favour

7. By an administrative decision of 20 November 1989 the Szczecin Town Council (Urząd Miejski) held that the applicant’s husband, Mr Henryk Żuk, was determined a candidate to purchase two plots of land, nos. 184/3 and 187/3, owned at that time by the State Treasury and managed on its behalf by the State Land Fund (Państwowy Fundusz Ziemi). The Town Council, representing the State Treasury at that time, was obliged to sell the land to him on the basis of that decision. The administrative body established a three-month time-limit for the sale contract to be concluded.

8. J.S., W.K. and W.H., who had also applied to purchase the plots of land concerned, appealed against this decision. On 21 March 1990 the Director of the Regional Land Management Office in Szczecin (Urząd Wojewódzki) dismissed the appeal brought by J.S. It further confirmed the entitlement to purchase the land created by the contested decision, considering, inter alia, that the plots concerned were adjacent to a farm owned and run by the applicant and her husband and that therefore they were natural candidates for the purchase. The authority referred to the Act on Selling State-Owned Properties 1958 (ustawa o sprzedaży nieruchomości Państwowego Funduszu Ziemi).

9. By letters of 27 April 1990 and 23 July 1990 the Mayor of Szczecin (Prezydent m. Szczecina) informed the applicant and her husband that the decision of 20 November 1989 confirmed by the decision of 21 March 1990 could not be executed because W.K. had also contested it. The proceedings had therefore been re-opened ex officio. It was further stated that after the finalization of the appellate proceedings, the documents would be forwarded to the Cooperative Bank in Szczecin in order for the contract to be concluded. The three-month time-limit for the conclusion of the contract would start to run only after the decision became final.

10. On 16 April 1993 the Szczecin Governor (Wojewoda) upheld the validity of the decision of 20 November 1989. On 6 June 1994 the Minister of Agriculture dismissed the appeals referred to in paragraph 8 above. On 16 October 1995 the Supreme Administrative Court in Warsaw dismissed the appeal brought by W.K.

Accordingly, the contested decision became final on an unspecified date in early 1996.

11. On 16 May 1994 a new local land development plan (plan zagospodarowania przestrzennego) was adopted by the Szczecin municipality.

12. On 27 March 1998 the Szczecin Governor (Wojewoda) gave an administrative decision transferring ownership of the land concerned to the Agency of Agricultural Property of the State Treasury (Agencja Własności Rolnej Skarbu Państwa) in order for the 1989 decision to be executed. The Agency appealed. On 10 January 2002 the Minister of Agriculture quashed this decision. He found that under the provisions of the Szczecin land development plan of 1994 the lands situated within the administrative limits of the municipality and intended for agricultural purposes were not to be owned by the State Treasury and therefore not subject to transfer to the resources of the Agency.

13. The Szczecin Town Council, when subsequently called by the applicant and her husband to execute the 1989 decision by selling the land to them, refused to do so. In letters dated 13 June and 31 July 2002 and 14 February 2003 addressed to the applicant and her husband, the municipality’s executive board (Zarząd miasta) refused to transfer ownership to them essentially because the land concerned, situated within the administrative limits of the Szczecin municipality, had been designated for non-agricultural purposes under the 1994 land development plan.

14. In 2003 the applicant called on the Zachodniopomorskie Governor (Wojewoda Zachodniopomorski) to issue an administrative decision transferring ownership rights from the State Treasury to the Szczecin municipality, but to no avail.

15. On an unspecified date the Szczecin Mayor (representing the municipality) requested the Governor (representing the State Treasury) to take over the ownership of the plots of land concerned. On 30 September 2003 the Governor refused to do so, relying on the Act of 19 October 1991 on the management of State-owned agricultural property (ustawa o gospodarowaniu nieruchomościami rolnymi Skarbu Państwa oraz o zmianie niektórych ustaw). It was noted that under the 1994 land development plan adopted by the Szczecin municipality, the plots no longer constituted agricultural land either within the meaning of the Civil Code nor under the local land development plan. It could therefore not be transferred to the Agency representing the State Treasury in the management of agricultural properties it owned as the agency had jurisdiction only in respect of land designated for agricultural uses. The Mayor appealed. On 8 June 2005 the Minister of Agriculture upheld the contested decision. No appeal to the administrative court against this decision was lodged.

16. As a result, the land remained municipal property.

B. The first set of civil proceedings

17. On 17 April 2003 the applicant and her husband lodged a civil action against the Szczecin municipality. They requested the court, relying on Article 64 of the Civil Code, to oblige the defendant municipality to sell the property concerned to the applicant’s husband on the basis of the 1989 decision (roszczenie o złożenie oświadczenia woli). In response to the claim the defendant municipality asked for the action to be dismissed. It submitted that it did not own the land concerned. It was at that time owned by the State Treasury. As the Governor had refused to give a decision on the transfer of ownership of that land to the municipality (see paragraph 15 above), the latter could not sell it. The municipality further argued that the claim to have the property sold to the applicants had become prescribed.

18. The Szczecin District Court, by a judgment of 28 November 2003, dismissed the claim. The applicant and her husband appealed.

19. On 15 April 2004 the Szczecin Regional Court allowed the appeal, amended the contested judgment and allowed the claim. It dismissed the prescription objection. The court was of the view that the ten-year prescription period provided for pecuniary claims under the provisions of the Civil Code had started to run only in 1996 when the 1989 decision had become final (see paragraph 10 above).

20. The court further obliged the municipality to sell the land concerned to the applicant and her husband. It was of the view that the first-instance court had erred in finding that neither the provisions of the 1958 Sale of the National Land Fund Act (ustawa o sprzedaży nieruchomości Państwowego Funduszu Ziemi) nor the decision given in 1989 and 1990 (see paragraphs 7 and 8 above) on the basis of that Act provided for an obligation on the part of the municipality to sell the land to the addressee of that decision. That decision created on the claimants’ part a claim of a pecuniary nature to have the sale contract concluded with them. They were not therefore obliged to participate in a tender which was simply another procedure for buying the land owned by the State, not applicable to their situation. The fact that the proceedings lasted until 1996 because other persons had contested that decision did not affect the validity of their claim. Nor did the fact that the applicable provisions changed in 1991 and the ownership of the land had thereby been transferred ex lege from the State Treasury to the municipality (see paragraphs 34-35 below) affect the existence and validity of the claim to have the purchase contract concluded or the corresponding obligation on the part of the public authorities.

In the operative part of the judgment the court expressly formulated the essential provisions of the sale contract to be concluded by the Szczecin Municipality with the applicants, including the price of PLN 11,015 to be paid for the plots. The court further ordered the municipality to cover the legal costs borne by the applicant and her husband in the amount of PLN 4,496.

21. The defendant municipality appealed. Its appeal was rejected on 9 September 2004 by the Szczecin Regional Court for having been lodged out of time.

22. On 17 March 2005 the applicant and her husband paid PLN 6,519 to the municipality, the amount being the difference between the price of PLN 11,015 as determined by the judgment and PLN 4,496, the amount of court costs they had borne in the connection with the civil proceedings.

23. In 2005 and 2006 the applicant and her husband, referring to this judgment, called the municipality to sell the property to them, but to no avail.

C. Judgment given in proceedings concerning the applicant’s marital property

24. By a judgment of 14 May 2007 the Szczecin District Court held that the statutory conjugal property of the applicant and her husband created ex lege by their marriage on 6 January 1979 had been replaced by a separate marital property regime as from 1 January 2004.

D. The second set of civil proceedings

25. On 29 February 2008 the applicant and her husband lodged a civil action against the Szczecin Municipality with the civil court requesting that steps be taken by that court to put right the discrepancies between the entry in the land register and the actual ownership of the plot (powództwo o uzgodnienie ksiçgi wieczystej z rzeczywistym stanem prawnym). They referred to the judgment of the Regional Court, summarised in paragraphs 19 and 20 above and requested that the State Treasury be listed as owner of the land concerned.

26. The applicants also submitted an alternative claim asking the court to order the State Treasury represented by the Mayor of Szczecin to sell the property to them. The Mayor was invited to participate in the proceedings.

27. The municipality argued before the court that it did not own the land. As the land was owned by the State Treasury, the municipality could not sell it.

28. On 15 September 2008 the Szczecin District Court dismissed the claim. Subsequently, on 27 March 2009 the Regional Court quashed this judgment on formal grounds and ordered that the case should be re-examined.

29. On 30 July 2009 the Szczecin District Court dismissed the claim against the State Treasury – the Mayor of Szczecin (pko Skarbowi Państwa – Prezydentowi Miasta Szczecina) and against the municipality of Szczecin (pko Gminie Miasto Szczecin). It noted that the relevant land register listed the State Treasury as the owner of the plot. The land register could only be amended on the basis of an administrative decision issued by the Governor on the basis of section 18(1) of the Local Self-Government Act of 10 May 1990 ("the 1990 Act") confirming the ex lege transfer of ownership from the State Treasury to the local municipality on the basis of that Act (see paragraph 36 below). The Governor had never given a relevant administrative decision. The civil court had no jurisdiction to order administrative bodies to issue administrative decisions. In the absence of such a decision the ex lege transfer of ownership to the municipality provided for by law could not become operative. In the absence of such a transfer certified by a decision, the State Treasury remained the land’s owner. It was therefore impossible for the court to order the municipality to sell the plot to the claimant or to amend the land register in such a manner as to list the municipality as the owner. The judgment given in 2004 was not res iudicata towards the State Treasury as it was the municipality who had been the defendant in these proceedings.

30. The claimants appealed. They argued that they had already specified before the first-instance court that the claim was directed against both the State Treasury and the municipality of Szczecin.

31. During the hearing before the appeal court the lawyer representing the applicant and her husband stated that he had corrected the content of the alternative claim (as regards the entity who was supposed to make a declaration of intent) already during the proceedings before the court of first instance.

32. The applicant’s appeal was dismissed on 4 March 2010 by the Szczecin Regional Court. The court shared the conclusions of the lower court. It was of the view that the claimants had not made it sufficiently clear that the alternative claim had been directed against both the State Treasury and the municipality. Despite the fact that the plaintiffs had pointed out the mistake in their statement of claim which had been addressed against the State Treasury, the court could not rectify that mistake ex officio.

33. The Supreme Court refused to entertain the cassation appeal against this judgment by a decision of 23 February 2011.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Local Self-Government Act of 1990 and its consequences for ownership of publicly owned land

34. A very significant reduction in the State Treasury’s land resources was brought about by legislative measures adopted in 1990 and 1991 and aimed at reforming the administrative structure of the State. The Local Self‑Government Act of 10 May 1990 (“the 1990 Act”) re-established municipalities and transferred to them powers that had previously been exercised solely by the local state administration. This included the relinquishment of control over public land and transfer of ownership of most of the State Treasury’s land to municipalities.

35. Pursuant to section 5(1) of the 1990 Act, ownership of land which had previously been held by the State Treasury and which was within the administrative territory of a municipality was transferred to the municipality.

36. Pursuant to section 18(1) of that Act the Governor as a local representative of the State administration should ex officio issue decisions confirming that ex lege transfer of ownership from the State Treasury to the local municipality had been made in respect of each property. Only on the basis of such decisions can entries in land registers be amended and ownership by municipalities registered.

This provision, in so far as relevant, reads:

1. The Governors shall ex officio issue decisions concerning acquisition of ownership [by the local municipality] ...

2. A National Transfer of Ownership Commission shall be created to examine appeals against decisions referred to in item 1 above.

3. The Prime Minister shall, at the motion of the Ministry of Internal Affairs, appoint the president and members of that Commission and determine the procedure to be applied in the proceedings.

37. In 2004 that Act was amended. Its section 17(a) obliged local municipal councils to draw up inventories of lands de facto taken over by the municipal authorities in respect of which such decisions had not yet been taken.

B. The Supreme Court’s case-law on legal consequences of a successful civil action under Article 64 of the Civil Code

38. In a judgment of 19 June 2002 (II CKN 997/00) the Supreme Court held that a successful civil action under Article 64 of the Civil Code, requesting the court to oblige a defendant to make a declaration transferring ownership (roszczenie o złożenie oświadczenia woli), constituted a basis for the entry of a claimant’s ownership in the land register. In a judgment of 5 September 2002 (II CKN 1035) that court held that a judgment of the civil court imposing such an obligation was sufficient for an effective transfer of ownership to the claimant, with no need for an additional declaration on the part of the seller. The courts should therefore in such judgments specify essentialia negotii necessary for the transfer to be possible. In its judgment of 19 September 2002 ((II CKN 930/00) the same court held that a declaration on the part of the defendant seller was necessary for an effective transfer of ownership, save in cases where the court had allowed the claimant’s action in its entirety.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

39. The applicant complained that her rights originating in the administrative decisions and later confirmed by the final judicial decision were not enforced. She relied on Article 6 § 1 of the Convention and on Article 1 of Protocol No. 1 to the Convention. Article 6 § 1 of the Convention in so far as relevant reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Article 1 of Protocol No. 1 to the Convention 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.”

A. Admissibility

40. The Government first argued that the applicant could not claim to be a victim of the breach of her rights. The administrative decision of 1989 had been given in her husband’s name. No administrative decision had ever been given giving rise to a right on her part to buy the land concerned. The court, giving its judgment of 2004, had failed to establish whether the applicant and her husband had a common marital property under the statutory regime.

41. The applicant disagreed. She submitted that the case concerned her and her husband’s common marital property. The land concerned would have become, had the purchase contract been signed, their common property and consequently also hers.

42. The Court observes that it is not in dispute that the applicant and her husband had been in a statutory regime of common marital property since their marriage in 1979. Nor is it disputed that this regime existed in 1989 and 1990 when the administrative decisions determined the applicant’s husband’s right to purchase the land concerned. It is noted that both the applicant and her husband were successful claimants in the civil proceedings terminated by a final judgment given in 2004 and confirming their rights. Under the applicable provisions of civil law they had equal shares in their common marital property (see paragraph 6 above). It is true that that this legal regime was replaced in 2007 by a separate marital property regime (see paragraph 24 above). However, no arguments have been advanced before the Court to show that had a sale contract been duly concluded, a share of the ownership of the land purchased on the basis of the administrative decision would not have become the applicant’s property.

43. It follows that the Government’s objection concerning the applicant’s victim status must be rejected.

44. The Government further submitted that the six-month time-limit for lodging the application with the Court should be counted from, at the latest, 2004 when the judgment of the civil court became final. The proceedings lodged in 2008 did not affect the running of this time-limit because in the circumstances of the case it was an irrelevant remedy.

45. The applicant did not address this issue.

46. The Court reiterates that the six-month rule is not applicable in the event of violations which have a continuous character, such as the non-enforcement of a final decision (see, among many other authorities, Hornsby v. Greece, judgment of 19 March 1997, Reports 1997‑II, p. 508, § 35; Iatridis v. Greece [GC], no. 31107/96, § 50, ECHR 1999‑II). By lodging their second civil action in 2008 the applicant and her husband sought to have their rights originating in the administrative decisions vindicated in practice. As this legal avenue was designated to obtain redress in respect of the continuing non-enforcement, the Court is of the view that in the circumstances of the case that remedy cannot be said to be irrelevant. Accordingly, it was the final decision given in these proceedings which triggered the running of the six-month time-limit. The respondent Government’s plea that the six-month rule has not been complied with must accordingly be dismissed.

47. The Government further argued that the applicant should have instituted proceedings for compensation under Article 417 of the Civil Code, arguing that she had suffered damage because the judgment given in 2004 had not been properly enforced. They further submitted that the applicants had had at his a disposal further remedy in respect of her complaint, namely she could have brought a civil claim against the owner of the property under Article 64 of the Civil Code for a conclusion of the sale and purchase agreement in respect of the land concerned.

48. The applicant disagreed.

49. The Court considers that this objection is closely linked to the substance of the applicant’s complaint and that its examination should therefore be joined to the merits.

50. The Court notes that the application 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

51. The Government submitted that the State Treasury had never ceased to be the owner of the land. In the second set of the civil proceedings the applicant’s legal representative had wrongly indicated the defendant entity, the municipality of Szczecin instead of the State Treasury, which resulted in the court having correctly dismissed his claim.

52. They further argued that at the beginning of the 1990s the applicant and her husband cultivated the contentious plot of land. No decision had ever been given ordering the applicant or her husband to vacate the land. Hence, they had not been prevented from an effective use and enjoyment of that land.

53. It was further submitted that under the decision of 20 November 1989 neither the applicant nor her husband had ex lege become owners of the land concerned. Under the applicable legal provisions the nature of the claim they had acquired on the basis of that decision was open to interpretation. The Act on Sale of State-Owned Land 1958 on the basis of which the original decisions were given (see paragraph 8 above) did not expressly qualify the prospective buyer’s position as a right. This Act provided for a tender to be organised for the purposes of selling property owned by the State. This Act had later been repealed in 1991 and replaced by the Act of 19 October 1991 on the Management of State-Owned Agricultural Properties (ustawa o gospodarowaniu nieruchomościami rolnymi Skarbu Państwa). However, the latter Act did not provide for specific procedural solutions regarding the legal situation of persons who, by way of administrative decisions, had been determined candidates for purchase of such plots under the former Act. In these circumstances it was open to the applicant to seek civil liability of the State for damages resulting from the State’s failure to sell the property to her.

54. The applicant submitted that the rights originating in the decisions given in 1989 and 1990 and later confirmed by the final judgment of the civil court given in 2004 were never enforced and remain unenforced to this day.

55. When that administrative decision was given in 1989, the legal system did not provide for any obligation for persons designated in such decisions to purchase land by way of tender. Moreover, the statements given by the authorities were contradictory as to the ownership of the land. On one hand, the Minister of Agriculture refused to transfer ownership to the municipality (see paragraph 15 above); on the other, it was stated in the correspondence of the municipal executive board with the applicant that these lands were not owned by the State Treasury. On the whole, the State failed to take effective steps in order to ensure that final decisions conferring pecuniary rights on the applicant were duly enforced and those rights satisfied. Currently neither the State Treasury nor the municipality consider themselves obliged to satisfy the applicant’s entitlement originating in those decisions.

56. The applicant further argued that should not be required to institute further proceedings in order to have her claim vindicated. All sets of proceedings in which she had already tried to do so had ended and final decisions had been given in them. She had tried a number of remedies, all to no avail. Certain bodies involved in the proceedings found that they lacked jurisdiction to deal with her case, but none had referred the applicant to an authority competent to deal with the substance of her grievance. As a result, her rights remain unenforced.

57. The Court has repeatedly held that, in terms of Article 1 of Protocol No. 1, a “claim” can constitute a “possession” if it is sufficiently established to be enforceable (see Burdov v. Russia, no. 59498/00, § 40, ECHR 2002‑III). By virtue of Article 1 of the Convention, each Contracting Party “shall secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention”. The obligation to secure the effective exercise of the rights defined in that instrument may result in positive obligations for the State. As regards the right guaranteed by Article 1 of Protocol No. 1, those positive obligations may entail certain measures necessary to protect the right to property, even in cases involving litigation between private individuals or companies. This means, in particular, that States are under an obligation to ensure compliance with the procedures enshrined in the legislation for the enforcement of final decisions, whether judicial or administrative, conferring rights on individuals (see Fuklev v. Ukraine, no. 71186/01, §§ 89‑91, 7 June 2005, with further references). This principle applies with all the more force when it is the State itself which is obliged to comply with such decisions.

58. The Court has also stated on numerous occasions that the right to a court would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6 § 1 should describe in detail procedural guarantees afforded to litigants – proceedings that are fair, public and expeditious – without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see, among many other authorities, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 63, ECHR 1999-V).

59. The Court further reiterates that, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V; and Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, 15 November 2005).

60. In the present case the applicant and her husband obtained the 1989 decision which was confirmed in 1990 and became final in 1996. This decision expressly stated that it gave rise on their part to the right to have a civil contract of sale of the State-owned plot concluded with them. It also specified the essential conditions of that contract. The domestic courts confirmed that the decision conferred such a right on the applicant. The Court is therefore satisfied that this decision conferred on her the right to have such a contract concluded falling within the ambit of a legitimate expectation to enjoy her possessions, protected by Article 1 of Protocol No. 1 to the Convention.

Subsequently difficulties arose in connection with the enforcement of this decision by way of the appropriate state body concluding a relevant contract with the applicant.

61. The applicant and her husband, faced with the continuing impossibility to have their claim vindicated, instituted civil proceedings with a view to having the plot sold to her and her husband. The Court attaches particular importance to the fact that the Szczecin District Court, in its judgment of 2004 which became final, expressly stated in its operative part that the 1989 administrative decision created on the applicant’s husband’s part a right to buy the plot concerned. The court stressed the fact that the legal reform effected in 1990 did not affect the existence and validity of the applicant’s claim. As this judgment did not bring the result sought, the applicant and her husband tried to vindicate their rights by way of bringing another civil action. The Court cannot but note that the Supreme Court in some of its judgments accepted that a judgment of the civil court obliging a defendant under Article 64 of the Civil Code to make a declaration transferring ownership could constitute a basis to make an entry of the successful claimant’s ownership in the land register (see paragraph 38 above). However, the courts dealing with the second civil case brought by the applicant did not apply this approach to her case and refused to confirm her ownership by making relevant entries in the land register.

62. In so far as the Government argued that the applicant should have instituted other civil actions, the Court has repeatedly held that where an issue pertaining to the general interest is at stake, especially when it affects fundamental human rights, including property rights, the public authorities must act promptly and in an appropriate and above all consistent manner (see, among many other authorities, Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000‑I; Öneryıldız v. Turkey [GC], no. 48939/99, § 128, ECHR 2004‑XII; M S.r.l. v. Moldova, no. 21151/04, § 72, 8 April 2008; and Rysovskyy v. Ukraine, no. 29979/04, § 71, 20 October 2011). As the applicant sought to have the pecuniary rights originating in the final decision given in 1989 vindicated by way of two sets of civil proceedings which gave contradictory results and did not offer an effective redress to the applicant, the Court is of the view that the authorities failed to comply with those obligations.

63 Having regard to the above and to the fact that the applicant’s claim remains unenforced to this day, the Court dismisses the Government’s preliminary objection and holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

64. 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.”

65. The Court considers that the question of pecuniary damage is not ready for decision. It is therefore necessary to reserve the matter, due regard being had to the possibility of an agreement between the respondent State and the applicants (Rule 75 §§ 1 and 4 of the Rules of Court).

66. The applicant further requested the Court to award to her costs and expenses borne in connection with the proceedings before the Court. She requested the Court to determine the amount, having regard to the Court’s practice in cases against Poland.

67. In the circumstances of the case the Court finds it appropriate to award EUR 200 to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Joins to the merits the Government’s objection about non-exhaustion of domestic remedies and declares the application admissible;

2. Dismisses the Government’s preliminary objection;

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

4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

5. Holds that, as regards pecuniary damage resulting from the violation found, the question of just satisfaction is not ready for decision and accordingly

(a) reserves this question;

(b) invites the Government and the applicant to submit, within three months from the date of notification of this judgment, their written observations on this question and, in particular, to notify the Court of any agreement that they may reach;

(c) reserves the further procedure and delegates to the President of the Chamber the power to fix it if need be.

6. 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 200 plus any tax that may be chargeable to the applicant, 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 6 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıGuido Raimondi
              Deputy RegistrarPresident

 

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