AS TO THE ADMISSIBILITY OF
Application No. 28248/95
by Zofia HOLISZ
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 20 May 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 12 August 1994 by
Zofia Holisz against Poland and registered on 18 August 1995 under file
No. 28248/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on 6 May
1997 and the observations in reply submitted by the applicant on
23 June 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Polish citizen born in 1932, is a pensioner
residing in Bukowno.
The facts of the case, as submitted by the parties, may be
summarised as follows:
Particular circumstances of the case
I.
On 1 June 1977 the Mayor of Bukowno pronounced a decision fixing
compensation for the expropriation of certain properties owned by J.S.
located in Bukowno, including a plot No. 1593 at Nowa Street.
On 15 May 1979 the Mayor of Bukowno ordered the expropriation of
a property of 2482 square metres located in Bukowno-Village, owned by
J.S.
On 16 August 1990 the heirs of J.S., including the applicant,
requested the Katowice Regional Office to declare null and void the
decision of 1 June 1977 as the compensation fixed therein did not
correspond to the actual value of the expropriated plot No. 1593.
The Katowice Governor transmitted this request to the Municipal Board
of Appeal in Katowice, competent to deal with it under the 1990 reform
administration laws.
On 8 November 1991 the Municipal Board of Appeal in Katowice
declared that the decisions of 1 June 1977 and 15 May 1979 were null
and void, having been issued in flagrant breach of the applicable legal
provisions.
On 28 February 1992 the Olkusz Regional Court (S*d Rejonowy)
declared that the applicant had acquired title to the plot No. 1593.
On 2 March 1992 the Katowice Governor declared null and void the
decision of 15 May 1979 concerning the expropriation of plot No. 1593
on the ground that it was unlawful.
On 23 July 1993 the Katowice Regional Office, having regard to
the decision of 2 March 1992, fixed the compensation for the
expropriation ordered by the decision of 15 May 1979 at 5,000,000
zlotys. In August 1993 the applicant lodged an appeal with the
Katowice Regional Court.
On 9 December 1994 the Municipal Board of Appeal in Katowice,
acting proprio motu, set aside the decision of 8 November 1991 insofar
as it determined compensation for the plot No. 1593 in Bukowno and
discontinued the proceedings in the relevant part. The Board
considered that it had not been competent to set aside the decision of
1977 as, in accordance with the provisions relating to the reform of
administration of 1990, it was competent only to examine appeals
against decisions concerning the municipalities' own jurisdiction,
whereas the decision of 1977 did not fall within this ambit. It was,
consequently, the Katowice Governor who was competent to set that
decision aside.
On 16 December 1994 the applicant lodged an appeal against this
decision with the Municipal Board of Appeal which was obliged to
forward it together with the case-file to the Supreme Administrative
Court (Naczelny S*d Administracyjny) within thirty days of service of
the decision on the parties. She complained that the Board had acted
proprio motu and stated that by virtue of the court decision of
28 February 1992 she had acquired a title to property which had later
been registered with the local land registry. She submitted that the
interpretation of the laws as to the authority competent to pronounce
the decision had changed in the course of the proceedings concerning
her claim for compensation which she had instituted before the Katowice
Regional Court. However, this change should not have been to her
detriment as she could bear no responsibility therefor.
The submissions of the parties differ at this point as to the
subsequent events:
The Government submit that in January 1995 the Katowice Regional
Court requested the Board of Appeal to submit the administrative case-
file to it. The Board submitted the file to the Court on 30 January
1995.
The applicant submits that on 16 January 1995 a hearing was to
be held before the Katowice Regional Court in the civil proceedings
concerning her compensation claim. It was adjourned as the Court, in
order to proceed further, had to have access to the case-file of the
administrative proceedings, terminated by the administrative decision
of 9 December 1994.
The applicant then states that the following occurred:
In a letter of 6 February 1995 the applicant asked the Municipal
Board of Appeal when her appeal had been forwarded to the Supreme
Administrative Court.
On 22 February 1995 the Board informed the applicant that the
case-file had been sent to the Katowice Regional Court in connection
with the related civil proceedings against the Bukowno municipality,
pending before that Court. Accordingly, her appeal could not have been
forwarded to the Supreme Administrative Court.
On 27 February 1995 the applicant complained to the Prime
Minister that the Municipal Board of Appeal had failed to transmit her
appeal to the Supreme Administrative Court and that it had wrongly
informed her that the case-file had been transmitted to the Katowice
Regional Court.
Subsequently, the applicant complained to the Supreme
Administrative Court about the delay in forwarding her appeal.
On 6 March 1995 the Court transmitted this letter to the Municipal
Board of Appeal.
On 9 March 1995 the Katowice Regional Court informed the
applicant that it had recently instructed the Regional Office to submit
the case-file of the administrative proceedings to that Court ("S*d
Wojewódzki ... informuje, ze obecnie S*d zobowi*zal Urz*d Wojewódzki
w Katowicach do udzielenia akt post*powania administracyjnego
zwi*zanego z przedmiotowym post*powaniem.")
As regards the subsequent developments the parties agree that the
following occurred:
On 29 April 1995 the Katowice Regional Court ordered that the
administrative case-file should be sent back to the Municipal Board.
On 25 May 1995 the Board transmitted the case-file and the appeal
against the decision of 9 December 1994 to the Supreme Administrative
Court.
In reply to the applicant's query, on 30 July 1995 the registry
of the Supreme Administrative Court informed her that, due to a heavy
case-load, the Court would hold a hearing in her case probably in
October 1996.
On 7 October 1996, after one hearing, the Court dismissed the
applicant's appeal, considering that after the 1990 administration
reform doubts had subsisted as to the division of jurisdiction between
the municipal administration created thereby and the government
administration as regards claims for compensation arising out of
expropriation. These doubts had been solved by the concordant
interpretation of relevant laws in administrative practice to the
effect that it was the government administration which was competent
in this domain. Consequently, the Board of Appeal had not been
competent to pronounce its decision of 8 November 1991 as it concerned
issues reserved for the jurisdiction of the government administration.
II.
On 27 January 1994 the Bukowno Municipal Council took a
resolution by which local owners of forests were exempted from an
obligation to pay forest taxes, the value of the forests having
significantly diminished due to serious pollution.
The applicant filed a complaint about the inactivity of the local
council in that it had failed to impose the forest tax on her.
On 11 May 1995 the Supreme Administrative Court rejected the
appeal, considering that no appeal lay against the non-imposition of
the forest tax.
On 30 August 1995 the Minister of Justice refused to lodge an
extraordinary appeal against this judgment, considering that it was in
accordance with the law.
Relevant domestic law
Article 200 of the Code of Administrative Procedure provided at
the relevant time that against an administrative decision an appeal can
be lodged with the Supreme Administrative Court. This appeal should
be submitted to the administrative authority which pronounced the
decision. This authority is obliged to transmit the appeal with the
case-file to the Supreme Administrative Court within thirty days of its
receipt.
COMPLAINTS
The applicant complains that the case-file was not transmitted
to the Supreme Administrative Court on time and about the delay in the
proceedings.
The applicant further complains that the non-imposition of the
forest tax deprives her of an opportunity to prove that she is an owner
of the land concerned.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 August 1994 and registered
on 18 August 1995.
On 17 January 1997 the Commission decided to communicate the
applicant's complaint concerning the length of the proceedings to the
respondent Government.
The Government's written observations were submitted on 6 May
1997, after an extension of the time-limit fixed for that purpose.
The applicant replied on 23 June 1997.
THE LAW
The applicant complains that the case-file was not transmitted
to the Supreme Administrative Court on time and about the delay in the
proceedings.
Article 6 para. 1 (Art. 6-1) of the Convention in its
relevant part reads:
"1. In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public
hearing within a reasonable time by (a)... tribunal..."
The Government first submit that the Board received the request
from the Katowice Regional Court to have the case-file transmitted to
that court within the time-limit of thirty days provided for in Article
200 of the Code of Administrative Procedure. The Board could not,
therefore, transmit it together with the applicant's appeal to the
Supreme Administrative Court. The Board transmitted the file to the
Regional Court with no delay. The Regional Court sent the file back
as soon as it had examined the relevant documents, i.e. on 10 May 1995.
Subsequently the Board transmitted the file to the Supreme
Administrative Court on 25 May 1995. The Board had thereby failed to
observe the time-limit provided for by Article 200 of the Code of
Administrative Procedure by two weeks only.
The Government further emphasise that this time-limit is
a recommendation only and is not binding on the organs concerned.
The Government further state that the period between 16 December
1994, i.e. the date on which the applicant lodged her appeal and
7 October 1996, the date of the Supreme Administrative Court's final
judgment, cannot be considered as not being in compliance with
Article 6 (Art. 6) of the Convention.
The Government submit that the applicant contributed to the
prolongation of the administrative proceedings as she submitted three
different compensation claims. Moreover, the fact that she lodged the
action with the civil court meant that the case-file had to be
transferred several times between various organs. Given that an
administrative decision may be one of a number of important elements
to be taken into consideration in the court proceedings concerning
a compensation claim, the applicant's decision to lodge the civil
action should be regarded as at least unjustified if not harmful.
The applicant first contests the Government's submission to the
effect that she lodged three different claims for compensation in the
administrative proceedings. She emphasises that the Government did not
submit any details to substantiate this.
The applicant further submits that the Government's argument that
she contributed to the prolongation of the administrative proceedings
by lodging the civil action with the court is ill-founded. On the
contrary, it was the administrative authorities that instituted the
proceedings which subsequently led to the decision of 8 November 1991
being set aside. The civil proceedings for compensation, instituted
by the applicant in August 1993, were then already pending before the
Katowice Regional Court.
The applicant further disagrees with the Government's submissions
according to which no delay occurred in the administrative proceedings.
She lodged her appeal against the decision of 9 December 1994
on 16 December and it should have been promptly transmitted to the
Supreme Administrative Court. However, this was done only on 25 May
1995, after her numerous interventions. The Board's explanation that
the case-file had been transferred to the Katowice Regional Court was
untrue as shown by the fact that on 16 January 1995 the hearing was
adjourned as the case-file had not been submitted to the Court. The
Board should have transferred her appeal to the Court in December 1994,
but it failed to do so.
The applicant further submits that the Supreme Administrative
Court dealt with her case only in October 1996, i.e. after one year and
four months of inactivity.
The Commission notes that the proceedings in question lasted from
16 December 1994 to 7 October 1996,i.e. one year, nine months and
twenty-one days.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and with the help of the following criteria:
the complexity of the case, the conduct of the parties and the conduct
of the authorities dealing with the case (Eur. Court HR, Vernillo v.
Italy judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).
The Commission observes that the case was not complex as it was
only the competence of the Municipal Board of Appeal to quash the
original decision which was to be examined by the Supreme
Administrative Court.
As regards the conduct of the authorities, the Commission first
observes that the relevant provisions of the Code of Administrative
Procedure oblige the administrative authority to transmit the case-
file, together with an appeal against a final administrative decision,
to the Supreme Administrative Court within thirty days. The Government
submit that the Board could not have done so as "in January 1995", i.e
within that time-limit, it received the request from the civil court
for the file to be transferred to it. The Board, according to the
Government's submission, complied with this request with no delay. In
the Commission's opinion, this submission does not appear to be
correct. Firstly, the Government have failed to indicate the exact
date on which the court's request was submitted to the Board.
Secondly, the hearing before that court on 16 January 1995, i.e. on the
last day of the thirty-days time-limit for the transfer of the case to
the Administrative Court, was adjourned because the Regional Court
needed access to the administrative case-file in order to proceed
further. Thirdly, it cannot even be assumed that the Board had sent
the file to the Regional Court before 16 January 1995, but it had not
reached the court by that date - which assumption would be compatible
with the Government's submission referred to above - as the court
stated in its letter to the applicant of 9 March 1995, that the court
has "now" obliged the Board to submit the case-file. Thus, the file
was not with the Regional Court even at that later date. Consequently,
the Commission is forced to conclude that the Board did not comply with
the statutory time-limit of thirty days for the transmission of the
file to the Supreme Administrative Court.
Furthermore, the Commission notes that it transpires from the
Regional Court's letter of 9 March 1995 that the Board had apparently
misinformed the applicant in its letter of 22 February 1995, in which
it said that the case-file had been transmitted to the Regional Court.
This must be so as on 9 March 1995 the file had not yet reached the
court. The Government do not present any convincing arguments to the
contrary.
As regards the proceedings before the Supreme Administrative
Court, the Board sent the case-file to that court on 25 May 1995.
In July 1995 the applicant was informed that her case would be dealt
with in October 1996. The judgment was indeed pronounced on 7 October
1996 after one hearing.
As regards the applicant's conduct, the Commission takes note of
the Government's submission that in the administrative proceedings she
submitted three different compensation claims. However, the Government
have failed to substantiate their submission. Nonetheless, there were
separate civil proceedings instituted by the applicant, related to the
administrative proceedings, pending before the civil court.
As knowledge of the file was necessary for the court to rule in the
civil case, the transfers of the case-file between the administrative
authorities and the court were necessary and they considerably
prolonged the administrative proceedings.
Assessing the facts of the case as a whole, and taking into
account in particular the fact that the overall length of the
proceedings was not significant, the Commission considers that the
proceedings did not exceed a "reasonable time" within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention. It follows that this
complaint is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains that the non-imposition of the
forest tax deprives her of an opportunity to prove that she is an owner
of the land concerned.
The Commission examined this complaint under Article 1 of
Protocol No. 1 (P1-1) to the Convention which 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."
The Commission observes that in the present case the applicant
was exempted from an obligation to pay forest tax as the value of the
local forests had seriously diminished. The Commission considers that
the non-imposition of the tax cannot, by its very nature, be considered
as an infringement of the applicant's right to peaceful enjoyment of
property within the meaning of Article 1 of Protocol No. 1 (P1-1) of
the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy