CASE OF POTOCKA v. POLAND
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)
Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
4. The applicant was born in 1925 and lives in Montresor. 5. The applicant’s predecessor owned property comprising also a park and a manor situated in Przecław. By virtue of the Decree of 6 September 1944 on Agrarian Reform (“the 1944 Decree”) ownership of private agricultural properties exceeding 50 hectares was transferred ex lege to the State. In 1974 the State transferred ownership of the property to a State-owned company Delta-Mielec. In the same year an entry confirming that company’s right of perpetual use in respect of the property was made in the land register. After the collapse of the communist regime the applicant and other legal successors of the former owners instituted proceedings seeking to have the ownership restored to them. 6. On 23 November 2000 the applicant instituted administrative proceedings. She requested the Podkarpackie Governor (Wojewoda Podkarpacki) to give a decision declaring the expropriation null and void. She argued that the expropriation decision was unlawful in that the property concerned had not fallen within the scope of the criteria for nationalisation stipulated by the 1944 Decree. 7. On 3 April 2003 the Podkarpacki Governor held that the property was covered by the Decree and therefore the expropriation decision had been lawful. The applicant appealed. 8. On 19 December 2003 the Minister of Agriculture quashed the first-instance decision and remitted the case. 9. By a decision of 3 August 2004 the Governor held that the park and manor were covered by the 1944 Decree. The applicant appealed. 10. On 8 June 2005 the applicant submitted a complaint under Article 37 of the Code of Administrative Procedure about the Minister’s failure to give a decision in the case within a reasonable time. She reiterated her complaint on 10 January 2007. There was no reply to these complaints. 11. On 5 November 2007 the Minister upheld the first-instance decision. The applicant appealed. On 18 September 2008 the Warsaw Regional Administrative Court quashed both the first- and second-instance decisions, finding that the first-instance authority had failed to inform the parties, including the applicant, about an administrative hearing it had held. 12. On 28 May 2010 the Podkarpacki Governor discontinued the proceedings. It had regard to a decision given by the Constitutional Court on 1 March 2010 (see paragraph 26 below). It held that in the light of that decision the administrative authorities had no jurisdiction to examine issues concerning the lawfulness of expropriation decisions given on the basis of the 1944 Decree. 13. The applicant appealed, referring to the resolution given by the Supreme Administrative Court on 5 June 2006 (I OPS 2/06; see paragraph 25 below). She argued that the authority had failed to provide the legal basis for the proceedings to be discontinued. 14. On 28 December 2010 the Minister upheld the contested decision. The applicant appealed. On 28 January 2011 the Minister noted that he was competent to quash his own decision if he found it to be unlawful. He accordingly quashed the decision of 28 December 2011, having regard to the judgment of the Supreme Administrative Court of 10 January 2011 (see paragraph 27 below). He held that the first-instance administrative authority had jurisdiction to deal with the applicant’s case. 15. On 11 April 2011 the applicant again complained about the Governor’s failure to give a decision. On 20 September 2011 the Minister found that the applicant’s complaint was ill-founded. 16. On 29 July 2011 the Podkarpacki Governor held that the provisions of the 1944 Decree were not applicable to the park and manor and that therefore there were no legal grounds on which the property concerned could be expropriated. 17. On 28 March 2012 the Minister upheld this decision. 18. In 2006 the applicant, having regard to discrepancies in the case-law regarding the procedural situation of former owners and their legal successors, instituted civil proceedings with a view to having the ownership restored to her. She instituted proceedings against the State Treasury and against the Mielec-Delta public company before the Mielec District Court, seeking rectification of the land register so as to make it reflect the actual legal status of the land (powództwo o uzgodnienie księgi wieczystej z rzeczywistym stanem prawnym). 19. On 5 March 2009 the Mielec District Court dismissed her action. It noted, firstly, that under the 1944 Decree properties consisting of parks and manors (zespół parkowo-pałacowy) were not subject to expropriation. However, the applicant had failed to show that the property concerned had ever been formally separated from the agrarian property as a whole so as to constitute a separate subject of ownership. In any event, the applicant had failed to show that she had obtained a final administrative decision declaring the expropriation decision null and void. Such a decision was a necessary prerequisite for a civil court to hold that the ownership of the property had not been transferred to the State and to determine all consequences in the sphere of civil law resulting from such a decision. 20. The applicant appealed. She submitted that the court had erred in refusing to stay the proceedings until an administrative decision was given, because such a decision was a necessary prerequisite for the civil court to rule on the merits of the case. She further submitted that the court had thereby breached the Constitution by encroaching on the exclusive competences of the administrative authorities. 21. On 2 July 2009 the Tarnobrzeg Regional Court dismissed her appeal. It observed that it was obvious that a decision on whether the 1944 Decree was applicable to the property could only be given by the administrative authorities. It referred to a judgment of the Supreme Court of 30 January 2007 (see paragraph 25 below). It emphasised that the case-law of the administrative courts also indicated that only the administrative authorities were competent to determine this issue. In the applicant’s case, as no such decision had ever been given, no other course of action was open to the civil court than to hold that the claim to have the entries in the land register rectified had to fail. 22. By a decision of 30 April 2010, served on the applicant’s representative on 1 June 2010, the Supreme Court refused to entertain her cassation appeal. It noted that the applicant had instituted civil proceedings in the absence of an administrative decision declaring the expropriation unlawful and therefore null and void. In such situation the courts had no choice but to dismiss her claim. 23. Article 1 of the Decree on Agrarian Reform of 6 September 1944 provides that “the agrarian reform in Poland is a State and economic imperative and shall be realised ... pursuant to principles set forth in the manifesto of the Polish Committee of National Liberation”. Article 2 § 1 of the Decree, in so far as relevant, reads: “The following agricultural estates shall be designated for the purposes of the agrarian reform: ... e) being a property or a co-property of natural persons or legal entities, if the entire area of the estate exceeds either 100 hectares in total, or 50 hectares of arable land ... All real estate, referred to in items ... , e) above shall, with no delay and without compensation, be taken over by the State.” 24. In 2001 the Constitutional Court discontinued proceedings instituted by an individual constitutional complaint concerning the alleged incompatibility of Article 2 of the 1944 Decree with the Constitution. It held that it could only examine the compatibility of binding legal provisions with the Constitution. Article 2 of the 1944 Decree had never been formally abrogated and it was referred to by courts and administrative authorities in their decisions. However, it was not a decisive factor in assessing whether this provision was still in force. The decisive factor was that it could no longer provide the basis for any substantive changes in ownership. The courts, when referring to this provision, did not apply it in the strict sense of that term; the reference to this provision was merely of a secondary nature and was used to decide whether that provision had been applied, during the expropriation proceedings conducted in the past, in a manner which had flagrantly violated the law (in which case an expropriation decision had to be declared null and void). The Constitutional Court concluded that this provision had therefore ceased to have legally binding force (SK 5/01, decision of 28th November 2001). 25. On 30 January 2007 the Supreme Court held that only administrative authorities could examine restitution cases (IV CSK 350/06). An identical resolution was adopted on 5 June 2006 the Supreme Administrative Court (I OPS 2/06). 26. On 1 March 2010 the Constitutional Court discontinued proceedings instituted as a result of a legal question (pytanie prawne) put to it by the Warsaw Regional Administrative Court (P 107/08). It reiterated, referring to its decision given in 2001) that the provisions of the 1944 Decree could not be resorted to any more in order to confer substantive rights on individuals and that it had ceased to be binding law. It further noted discrepancies in judicial and administrative practice as to the jurisdiction to examine restitution cases. It further held that only civil courts had jurisdiction to examine such cases, despite the fact that in practice these cases were dealt with by the administrative authorities and, upon appeal, by the regional administrative courts and, in the last, resort, by the Supreme Administrative Court. 27. On 10 January 2011 the Supreme Administrative Court held in a resolution that that decision of the Constitutional Court was not universally binding, essentially because it was only of a procedural character. The court held that the administrative authorities had jurisdiction to examine restitution cases (I OPS 3/10). 28. The relevant domestic law and practice concerning remedies for the excessive length of administrative proceedings, in particular the applicable provisions of the Code of Administrative Procedure and the 2002 Act on Proceedings before Administrative Courts, are described in the cases of Grabiński v. Poland no. 43702/02, §§ 60-65, 17 October 2006; Koss v. Poland, no. 52495/99, §§ 21-25, 28 March 2006; and Kaniewski v. Poland, no. 8049/02, §§ 22-28, 8 November 2005.