CASE OF SIERMIŃSKI v. POLAND
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Zdravka Kalaydjieva
4. The applicant was born in 1941 and lives in Kadzidło. 5. The applicant’s parents owned land within the administrative borders of Warsaw. It was expropriated by way of an administrative decision issued on an unspecified date under the provisions of the Decree on Ownership and Use of Land in Warsaw of 26 October 1945. In February 1949 the applicant’s legal predecessor requested to be granted a right of perpetual use (użytkowanie wieczyste) for another plot of land situated in Warsaw as compensation provided for by the provisions of the 1945 Decree. His request was dismissed by way of an administrative decision given in 1961 and ultimately upheld in 1968. A judicial decision given in 1975 confirmed that the applicant was his parents’ general heir. 6. On 16 July 1993 the applicant requested that the decision given in 1961 be declared null and void. 7. On 20 September 1994 the Minister of Construction and Land Planning (Minister of Gospodarki Przestrzennej and Budownictwa) gave a decision. It noted that in 1961 the authorities had failed to examine whether the substantive conditions for granting the owners the right of perpetual use of the land specified in section 7 of the 1945 Decree (see paragraph 46 below) had been met at that time. He declared, referring to Article 156 § 1 item 2 of the Code of Administrative Procedure (CAP) (see paragraph 39 below), that decision null and void in so far as it related to the part of the land concerned which was used as family gardens. In so far as this decision related to the part of the land which had already been used for construction purposes, he considered that the contested decision had given rise to irrevocable legal consequences within the meaning of Article 156 § 2 of the CAP (see paragraph 41 below). Therefore under Article 158 § 2 he could merely declare that it had been issued contrary to law within the meaning of this provision. 8. The municipality of Warsaw did not lodge an appeal against this decision. It accordingly became final within thirty days after its service on the applicant. 9. The applicant instituted three separate sets of proceedings, seeking compensation for damage caused by the expropriation decision. 10. On 10 October 1994 the applicant, referring to the decision of 20 September 1994, requested the authorities to re-examine the original motion submitted in 1949 to be granted a right of perpetual use in respect of the land covered by the part of the expropriation decision declared null and void (see paragraph 7 above). On 28 October 1994 the Land Planning Division (Wydział Gospodarki Przestrzennej) of the Warsaw City Hall requested the Warsaw-Mokotów Town Hall to provide certain information concerning the land concerned. 11. On 3 March 1995 the applicant complained to the Minister of Construction and Land Planning about the authorities’ failure to give a decision in his case. 12. On 7 September 1995 the Minister of Minister of Construction and Land Planning stayed the compensation proceedings instituted by the applicant under Article 160 of the Code of Administrative Procedure (see paragraphs 29-33 below). He observed that the decision given on 20 September 1994 (see paragraph 7 above) made it necessary in law to reexamine the former owners’ request for grant of the right to perpetual use submitted in 1949 and that it created a compensation claim for the applicant. It referred to the applicant as “the claim’s owner” (właściciel roszczenia). 13. In March and May 1996 the applicant complained to the Minister of Construction and Land Planning about the authorities’ failure to give a decision in the case. 14. On 25 November 1996 the Supreme Administrative Court gave a decision obliging the Mayor of Warsaw to whom the case had meanwhile been transmitted to give a decision on the merits of the case within one month. 15. On 24 February 1997 the Mayor of Warsaw refused to allow the application submitted in 1949 and joined by the applicant (see paragraph 5 above). The applicant appealed. 16. On 19 July 1997 the Local Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze) set the first-instance decision aside and remitted the case. 17. On 31 December 1997 the Mayor again refused to allow the applicant’s application. The applicant appealed. On 21 January 1999 the Board of Appeal set the first-instance decision aside and remitted the case. An exchange of correspondence between the applicant and the authorities ensued. 18. In January 2004 the Mayor of Warsaw informed the applicant that he had instituted proceedings with a view to having the decision given in 1994 that created for the applicant an entitlement to compensation (see paragraphs 7 and 12 above) declared null and void. In September 2004 the Minister of Construction refused to grant the Mayor’s application, finding that the contested decision was lawful. 19. On 13 December 2004 the Warsaw Town Hall (Urząd m. st. Warszawy) informed the applicant that the Mayor could not give a decision on the merits of the case unless the applicant indicated, by way of an initial request to obtain a construction permit, how he intended to use the land in question. 20. In September 2006 the applicant complained about the authorities’ failure to give a decision on the merits of the case. On 15 November 2006 the Board of Appeal obliged the Mayor to issue a decision by the end of February 2007. 21. On 15 March 2007 the applicant again complained about the administrative authorities’ failure to examine his case within a reasonable time. 22. On 24 April 2007 the Mayor refused to allow the applicant’s application. The applicant appealed. On 30 July 2007 the Board of Appeal quashed the decision, finding that it was unlawful both on procedural and substantive grounds, and remitted the case. 23. On 15 January 2008 the applicant again complained about the administrative authorities’ failure to give a decision. On 29 August 2008 the Board of Appeal found in a decision that his complaint was ill-founded as the file of the case had been forwarded to the civil court and the administrative authorities could not deal with the case. The applicant lodged an appeal against this decision with the Supreme Administrative Court. 24. On 28 October 2010 the Supreme Administrative Court obliged the Mayor of Warsaw to give a decision on the merits of the case within a twomonth time-limit. 25. On 3 June 2011 and on an unspecified later date the applicant complained to the Warsaw Regional Administrative Court about the Mayor’s failure to give a decision on the case in compliance with the judgment of that court obliging her to do so. On 14 July 2011 and 27 September 2012, respectively, the Warsaw Regional Administrative Court rejected his complaints for failure to comply with the applicable procedural requirements. It noted that the applicant was obliged, under Article 154 para. 1 on the Law of Proceedings before Administrative Courts, to call upon the Mayor to comply with the judgment obliging her to give a decision prior to lodging another complaint about her inactivity with the administrative court. 26. On 22 June 2011 the Mayor of Warsaw stayed the proceedings, pending a physical delimitation of the land concerned by a land surveyor. The applicant appealed against this decision. 27. On 13 September 2012 the applicant called upon the Mayor, under Article 154 para. 1 of the Law of Proceedings before Administrative Courts, to give a decision in compliance with the judgment of 28 October 2010. There was no reply to his request. 28. The proceedings are pending. 29. On 10 October 1994 the applicant instituted proceedings under the then applicable Article 160 of the Code of Administrative Procedure, seeking compensation for damage allegedly caused by the unlawful decision given in 1961. 30. On 7 September 1995 the Minister of Construction stayed the proceedings, considering that the outcome of the use of land proceedings described above (see paragraphs 10 – 28 above) was decisive for the proceedings under Article 160 of the Code of Administrative Procedure (see paragraph 12 above). The applicant appealed. 31. On 17 April 1997 the Supreme Administrative Court allowed the applicant’s appeal against the decision to stay the proceedings, holding that the other set of proceedings had no incidence on the issue of compensation for damage caused by the original expropriation decision. 32. In September 1997 the applicant complained about the Minister’s inactivity. 33. Ultimately in 2001 the President of Housing and Urban Development Office (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast) refused to award compensation to the applicant. 34. In June 2001 the applicant and other legal successors of the former owners of the land expropriated in 1961 lodged a claim with the Warsaw Regional Court for compensation for damage caused by that decision. 35. By a judgment of 9 December 2008 the Warsaw Regional Court awarded compensation to the applicant and other plaintiffs. The State Treasury represented by the General Attorney Office (Prokuratoria Generalna) appealed. 36. On 8 July 2009 the Warsaw Court of Appeal allowed the appeal, amended the contested judgment and dismissed the plaintiffs’ claim. 37. On 14 October 2010 the Supreme Court refused to entertain the applicant’s cassation appeal.