FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 48531/07
by Barbara KUDEREWSKA and Stanisław KUDEREWSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 9 February 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 31 October 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Barbara Kuderewska and Mr Stanisław Kuderewski, were born in 1957 and 1961 and live in Coquitlam and Vancouver, Canada, respectively. They were represented before the Court by Ms G. Nowicka, a lawyer practising in Ontario, Canada and in Gdańsk, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Expropriation proceedings against the applicants' predecessors in title
On 10 October 1968 the Gdańsk Regional National Council gave an expropriation decision and took over a plot of land (no. 98/25 which belonged to the applicants' predecessor in title. Later on, the plot in question was divided into four plots (nos. 219/29, 220/29, 222/29 and 229/29).
On 13 September 1973 the Gdańsk Regional National Council gave an expropriation decision and took over another plot of land (no. 99/25). Later on, that plot was divided into four plots (nos. 132/25, 133/25, 135/25 and 136/25).
On 4 June 1975 the applicants' predecessor in title sold another plot (no. 147/02) to the State Treasury.
On 25 August 1975 the applicants' predecessor in title sold two other plots (nos. 145/25 and 137/25) to the State Treasury.
On a later date the applicants' mother was declared as a legal successor of the above‑mentioned plots. In 1989 the domestic authorities abandoned the land development plans for which the plots in question had been expropriated.
2. Administrative proceedings for restitution of property
On 27 June 1990 the applicants' mother lodged a request with the Gdynia Municipality Office for restitution of the plots nos. 137/25 and 145/25. On a later unknown date the case was transferred to the Gdynia District Office. On 10 September 1992 the applicants' mother repeated her request for restitution in respect of all plots which had been expropriated in the 1960s and 1970s.
On 28 August 1993 the Head of the Gdynia District Office granted her request in respect of the plot no. 145/25.
On 17 January 1997 the Head of the Gdynia District Office refused her request in respect of the plots nos. 98/25, 147/02 and 99/25. On 11 December 1997 the Gdańsk Governor upheld this decision. On 23 March 2000 the Supreme Administrative Court quashed both decisions in respect of the plot no. 99/25 and dismissed the remainder of her appeal (in respect of the plots nos. 98/25 and 147/02).
On 28 June 2000, after the delivery of the judgment of the Supreme Administrative Court, the applicants' mother repeated her request for recovery of her plot no. 99/25 (at that time nos. 132/25, 133/25, 135/25 and 136/25).
On 14 August 2001 the Gdynia Mayor gave a decision whereby it divided the plot no. 135/25 into two separate plots (nos. 251/25 and 252/25). On 19 December 2001 the Gdynia Mayor held an administrative hearing in respect of the plots nos. 133/25 and 135/25.
On 18 September 2003 the applicants' mother lodged a complaint with the Gdańsk Governor about inactivity on the part of the Gdynia Mayor. On 3 December 2003 the Gdańsk Governor dismissed her complaint finding that the Gdynia Mayor had properly informed her in July 2003 about the delay in the proceedings caused by difficulties in appointing an expert with a view to estimating the value of the plots. On 7 December 2004 the applicants' mother withdrew her complaint to the Supreme Administrative Court about the inactivity of the administrative authorities.
On 30 November 2004 the Gdańsk Governor disqualified the Gdynia Mayor from dealing with the case and transferred it to the Gdańsk Mayor.
On 12 September 2005 the applicants' mother lodged a complaint with the Gdańsk Regional Administrative Court about inactivity on the part of the Gdańsk Mayor. On 1 December 2005 the court declared her complaint inadmissible since had failed to lodge, first, a hierarchical complaint.
On 29 September 2005 the Gdańsk Mayor informed the applicants' mother about further delay in the proceedings and that they would end in October 2005.
On 8 February 2006 the applicants' mother lodged a complaint with the Gdańsk Governor about inactivity on the part of the Gdańsk Mayor. In reply, on 21 March 2006 the Gdańsk Governor ordered that a decision should be given within 30 days.
On 9 March 2006 the Gdańsk Mayor stayed the proceedings in respect of the plots nos.133/25, 251/25 and 252/25. On 24 April 2006 the Gdańsk Governor quashed the above‑mentioned decision.
On 21 March 2006 the Gdańsk Governor ordered the Gdańsk Mayor to issue a decision on the merits within one month from the date of his decision.
On 12 October 2006 the Gdańsk Mayor decided to restore the plots nos. 133/25 and 136/25 to the applicants' mother and refused the request in respect of the plot no. 252/25. On 5 December 2006 the Gdańsk Governor quashed the above‑mentioned decision and remitted the case.
On 9 March 2007 the applicants' mother lodged a complaint with the Gdańsk Governor about inactivity on the part of the Gdańsk Mayor. On 23 March 2007 the Gdańsk Governor dismissed her complaint, finding no inactivity on the Mayor's part.
The applicants' mother died in April 2007. By a letter of 9 May 2007 the first applicant informed the Gdańsk Mayor about the applicants' intention to continue the proceedings.
On 31 July 2007 the first applicant was requested to submit an official copy of the court's decision (“odpis”) declaring that the applicants were legal successors of their mother.
On 11 August 2007 the applicants submitted to the Gdańsk Mayor a photocopy of the Gdynia District Court's decision of 13 April 2007 declaring them their mother's legal successors and a photocopy of a power of authority to act on her behalf which the first applicant had given to Ms J.W. on 9 May 2007.
On 15 August 2007 Ms J.W. requested the Gdańsk Mayor to enforce the judgment of the Supreme Administrative Court of 23 March 2000. There was no reply to that letter.
On 28 May 2009 the Gdańsk Mayor informed Ms J.W. that the photocopies submitted to the case file could not be treated as evidence. He referred to the case-law of the Supreme Administrative Court, according to which documents submitted merely in photocopy form could not be regarded as having probative value. She was also informed that it was possible to show the originals to the administrative authority and that they would be certified on the spot. A copy of that letter was also sent to the applicants.
B. Relevant domestic law
The relevant domestic law concerning inactivity on the part of administrative authorities is set out in Grabiński v. Poland, no. 43702/02, §§ 60-65, 17 October 2006.
COMPLAINTS
The applicants complained under Article 6 § 1 of the Convention about the excessive length of the proceedings.
They further complained under Article 13 of the Convention about the lack of an effective remedy against excessive length of the proceedings.
THE LAW
1.The applicants complained that the length of the administrative 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...”
The Government argued that the application was incompatible ratione personae with the provisions of the Convention. The proceedings had been instituted by the applicants' mother who died in April 2007. In May 2007 the first applicant informed the Gdańsk Mayor that they wished to join the proceedings. In August 2007 their representative submitted a photocopy of the judicial decision confirming that they were their mother's legal successors. The applicants had been informed that in order to be considered parties to the proceedings instituted by their mother they had to submit a certified or notarised copy of that decision. They failed to do so. Likewise, they failed to submit an original of the authorisation to act on their behalf which they had given to Ms J.W. As a result, Ms J.W. could not be considered as the applicants' representative and could not effectively act on their behalf.
The Government submitted that under established case-law of the administrative courts only certified or notarised copies of documents could be considered to constitute proof of facts or of authenticity of declarations made by parties to the proceedings or other persons. Photocopies of documents did not comply with these requirements. In the absence of the proof in the form required by law that the applicants were indeed heirs to their late mother, the authorities could not consider them parties to the proceedings. Similarly, in the absence of authorisation for Ms J.W., submitted in a proper form, she could not be considered their representative. In consequence, the applicants could not claim to be victims of the breach alleged.
The Government further averred that the applicants themselves had failed to exhaust remedies available under Polish law to address excessive length of administrative proceedings. Except for the letter informing the administrative authorities in May 2007 that they intended to join the proceedings as their mother's heirs, they had not taken any procedural step in the proceedings since then.
In so far as it could be understood that the applicants could benefit from the fact that their mother had taken certain steps in order to exhaust relevant domestic remedies, the Government argued that she had submitted several complaints about the inactivity of the authorities, but had failed to submit a compensation claim for damages resulting from the excessive length of administrative proceedings, available under Article 417 1 of the Civil Code.
The applicant did not address this aspect of the case.
The Court considers that it is not necessary to determine whether the applicants can be said to have become parties to the proceedings instituted by their mother and, consequently, claim to be a victim of a breach of the Convention, since the application is in any event inadmissible for the reasons set out below.
The Court reiterates that the purpose of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford Contracting States an opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. In that way Article 35 § 1 obliges the applicant to try available remedies that relate to the breach alleged by him (see, among other authorities, Bukowski v. Poland (dec.), no. 38665/97, 11 June 2002).
Furthermore, the Court has held in a number of cases against Poland that in order to comply with the requirement of exhaustion of domestic remedies in the context of lengthy administrative proceedings it was necessary to have recourse first to a hierarchical complaint about inactivity of an administrative authority and if this proved unsuccessful, to a subsequent complaint to the Supreme Administrative Court (Zynger (dec.), no. 66096/01, 7 May 2002; Futro v. Poland (dec.), no. 51832/99, 3 June 2003; Marcinkowscy v. Poland (dec.), no. 39262/98, 13 November 2003; Mazurek v. Poland (dec.), no. 57464/00, 7 September 2004; Kołodziej v. Poland (dec.), no. 47995/99, 18 October 2005; Szablinska v. Poland (dec.), no. 52462/99, 2 February 200; Grabiński v. Poland, no. 43702/02, 17 October 2006; Olszewska v. Poland, no. 13024/05, 18 December 2007; Olędzki v. Poland (dec.), no. 13715/03, 4 January 2008; Borysiewicz v. Poland, no. 71146/01, 1 July 2008; Paliga and Adamkowicz v. Poland, no. 23856/05, 4 April 2009; Serafin v. Poland, no. 36980/04, 21 April 2009; Koss v. Poland, no. 52495/99, 28 March 2006; Beller v. Poland, no. 51837/99, 1 February 2005; Karasińska v. Poland, no. 13771/02, 6 October 2009; Puchalska v. Poland, no. 10392/04, 6 October 2009)
Examining the instant case and assuming that the applicants – who did not themselves have recourse to any remedy concerning the length of administrative proceedings - could benefit from the procedural steps taken by their mother in connection with exhaustion of domestic remedies, the Court notes that, in any event, she filed hierarchical complaints about inactivity in respect of the non-judicial stage of the administrative proceedings. However, on no occasion did she effectively submit a complaint about inactivity with the Administrative Court.
The Court observes in this connection that on the sole occasion on which the applicants' mother had recourse to a judicial remedy, on 1 December 2005 the Gdańsk Regional Administrative Court rejected her complaint about inactivity since she had failed to lodge a prior hierarchical complaint.
Therefore, the Court finds that the available domestic remedies have not been exhausted.
It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2.The applicants further complained under Article 13 of the Convention about the lack of an effective remedy against excessive length of the proceedings. Article 13 reads:
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.
Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time. The Court has already found that under Polish administrative law there are remedies available concerning excessive length of administrative proceedings (Bukowski v. Poland (dec.), cited above).
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.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy