FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 39970/03
by Józef PONIATOWSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 13 November 2007 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrK. Traja,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović, judges,
and Mrs F. Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 25 November 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Józef Poniatowski, is a Polish national who was born in 1939 and lives in Wrocław. He was represented before the Court by Ms A. Jędrzejewska, a lawyer practising in Wrocław. 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. First set of administrative proceedings for compensation
On 7 April 1981 the applicant instituted administrative proceedings for payment of compensation for plots of land nos. 1174 and 1176 with a surface area of 1,760 square metres, situated in Warsaw.
On 27 October 1996 the applicant lodged with the Warsaw Municipality Office (Urząd Gminy Warszawa Centrum) an inactivity complaint under Article 37 of the Code of Administrative Procedure.
On 16 October 1997 the applicant lodged another complaint with the Warsaw Governor, submitting that progress in the proceedings was very slow.
On 15 February 1999 the applicant was informed that on 1 January 1999, due to the reform of public administration in Poland, the Mayor of the Warsaw District (Starosta Powiatu Warszawskiego) had assumed responsibility for the applicant’s case.
On 12 September 2001 the Mayor of the Warsaw District informed the applicant that his case would be considered not later than 31 December 2001 and that he could be granted compensation for one plot only.
On an unknown date the applicant complained to the Warsaw Governor that the Mayor of the Warsaw District had failed to deal with his case within the prescribed time-limit.
On 25 February 2002 the Warsaw Governor ordered the Mayor of the Warsaw District to deal with the applicant’s case within two months.
On 8 July 2002, following the applicant’s request, the Warsaw Governor asked the Mayor of the Warsaw District to provide fresh information concerning the progress of the applicant’s case.
On 4 April 2003, following the applicant’s complaint, the Warsaw Governor ordered the Mayor of Warsaw (Prezydent Miasta Stołecznego Warszawy), who had assumed responsibility for the applicant’s case, to give a decision by 31 May 2003.
On 10 October 2003 the Mayor of Warsaw informed the applicant that his case would be considered by 31 December 2003, due to certain procedural obstacles.
On 8 December 2003 the Mayor of Warsaw gave the first-instance decision and granted the applicant compensation for plot no. 1174 in the amount of 195,360 Polish zlotys (PLN) (approximately 50,000 euros (EUR)).
The applicant appealed. He also asked for compensation for the excessive length of the proceedings.
On 29 March 2004 the Warsaw Governor upheld the first-instance decision.
The applicant did not appeal to the Supreme Administrative Court.
2. Second set of proceedings for compensation
On an unspecified date in February 2006 the applicant instituted administrative proceedings, seeking compensation for the second plot (no. 1176).
On 20 November 2006 and 13 February 2007 the applicant asked the Mayor of Warsaw to accelerate the proceedings.
On 5 March 2007 the Warsaw City Office informed the applicant that the decision would be taken in the case by 30 April 2007.
The proceedings are pending.
B. Relevant domestic law
Under section 3 § 2 of the Law of 30 August 2002 on proceedings before administrative courts (Prawo o postępowaniu przed sądami administracyjnymi) (“the 2002 Act”) a party to administrative proceedings can lodge a complaint about inactivity on the part of an authority obliged to issue an administrative decision with an administrative court. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about the excessive length of both sets of the proceedings.
THE LAW
A. Complaint under Article 6 § 1 of the Convention as regards the length of the first set of proceedings for compensation
On 1 October 2007 the Court received the following declaration signed by the Government:
“I declare that the Government of Poland offer to pay PLN 15,000 (fifteen thousand Polish zlotys) to Mr Józef Poniatowski with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses will be free of any taxes that may be applicable and it will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
On 3 October 2007 the Court received the following declaration from the applicant:
“I note that the Government of Poland is prepared to pay me the sum of PLN 15,000 (fifteen thousand Polish zlotys) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses will be free of any taxes that may be applicable and it will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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.
I accept the proposal and waive any further claims against Poland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine of the Convention).
The Court accordingly strikes this part of the application out of its list of cases.
B. Complaint under Article 6 § 1 of the Convention as regards the length of the second set of proceedings for compensation
The applicant complained under Article 6 § 1 of the Convention that the length of the second set of proceedings for compensation had been incompatible with the “reasonable time” requirement.
However, the Court observes that the applicant did not exhaust domestic remedies, as it appears that the applicant failed to lodge a complaint about the inactivity of the authorities in accordance with the provisions of the 2002 Act.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
C. Article 29 § 3 of the Convention
In view of the above conclusions, Article 29 § 3 of the Convention should no longer apply to the case.
For these reasons, the Court unanimously
Takes note of the terms of the parties’ friendly settlement in respect of the complaint under Article 6 § 1 of the Convention concerning the length of the first set of administrative proceedings for compensation;
Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares inadmissible the remainder of the application.
Fatoş AracıNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy