CASE OF KOSS v. POLAND
Violation of Art. 6-1;No violation of Art. 13;Not necessary to examine under P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
Nicolas Bratza
4. The applicant was born in 1936 and lives in Konstancin Jeziorna, Poland. 5. The applicant’s grandfather (“J.O.”) owned a plot of land and a house situated in the centre of Warsaw. During the Second World War the house was demolished. By virtue of the 1945 Decree on the Ownership and Use of Land in Warsaw (Dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy) all land in Warsaw was nationalised. In 1948 J.O. asked the administrative authorities to grant him a right of temporary ownership (własność czasowa) of his plot. On 24 December 1951 the Board of the Warsaw National Council (Prezydium Rady Narodowej) dismissed his application. 6. On 6 August 1993 the applicant and other J.O.’s heirs filed with the Minister of Town and Country Planning (Ministerstwo Gospodarki Przestrzennej i Budownictwa) an application for the annulment of the decision of 1951. They also asked for a right of perpetual use (użytkowanie wieczyste) of the plot in question to be granted to them. On 27 February 1995 the Minister quashed the 1951 decision and remitted the case to the Mayor of Warsaw (Prezydent Miasta Warszawy) for re-examination. 7. By June 1996 the Mayor had not delivered any decision. On 4 June 1996 the applicant lodged with the Warsaw Self-Governmental Board of Appeal (Samorządowe Kolegium Odwoławcze) a complaint alleging inactivity on the part of the Mayor of Warsaw. 8. On 31 July 1996 the Mayor stayed the proceedings until the applicant had submitted certain documents. On 13 August 1996, upon a further appeal by the applicant, the Board of Appeal quashed that decision. On 14 August 1996 the Board of Appeal ordered the Mayor to give a decision within 30 days. The Mayor failed to comply with this order. 9. On 13 September 1996 the Mayor of Warsaw asked the Board of Appeal to extend the time-limit as he needed to obtain some additional documents. On 30 September 1996 the Mayor asked for an extension of the time-limit until 30 November 1996. 10. On 15 November 1996 the Mayor again stayed the proceedings, this time until the conclusion of other administrative proceedings. On 13 February 1997, upon the applicant’s appeal, the Board of Appeal quashed that decision and ordered the Mayor to proceed with the case. 11. On 11 March 1997 the Mayor refused the application for the grant of the right of perpetual use of the plot concerned. The applicant appealed. On 2 July 1997 the Board of Appeal set aside the first-instance decision and remitted the case. 12. On 27 October 1997 the Mayor of Warsaw for the second time refused the application for the grant of the right of perpetual use. On 25 February 1998 the Board of Appeal again quashed this decision and remitted the case. 13. Meanwhile, on 5 August 1997 the applicant lodged a complaint with the Supreme Administrative Court (Naczelny Sąd Administracyjny), alleging inactivity on the part of the Mayor of Warsaw. On 12 October 1998 the Supreme Administrative Court delivered a judgment in which it ordered the Mayor to issue a decision within 30 days and awarded the applicant 5 PLN for costs and expenses. 14. On 14 December 1998 the Mayor stayed the proceedings until the conclusion of the administrative proceedings concerning the transfer of ownership to the Warsaw Municipality and the adoption of a local master plan (Miejscowy plan zagospodarowania przestrzennego). Upon the applicant’s appeal, the Board of Appeal upheld this decision on 23 April 1999. On 14 March 2000 the Supreme Administrative Court confirmed the decision of 14 December 1998 and dismissed the applicant’s further appeal. 15. Subsequently, the applicant asked the Supreme Administrative Court to impose a fine on the Mayor of Warsaw. In its judgment of 6 December 1999 the Supreme Administrative Court dismissed his application. The court held that the Mayor had failed to comply with the judgment of 12 October 1998 for objectively justified reasons. The Mayor’s decision had depended on the conclusion of other administrative proceedings concerning the transfer of ownership to the Warsaw Municipality and the adoption of a local master plan. In addition, the court pointed out that, according to Section 31 § 4 of the 1995 Act, a party to proceedings who sustained damage as a result of a failure of the administrative body to act was entitled to claim compensation from the administrative authority concerned, according to principles of civil liability. 16. The proceedings were stayed and are thus pending before the Mayor of Warsaw. 17. The Decree on the Ownership and Use of Land in Warsaw of 26 October 1945 expropriated owners of real property located in Warsaw and transferred the ownership of land to the municipality of Warsaw. The 1945 Decree provided, in so far as relevant: “Section 7. (1) The owner of a plot of land ... can within six months after the taking of possession of the land by the municipality file a request to be granted ... the right to a perpetual lease (wieczysta dzierżawa) with a peppercorn rent (czynsz symboliczny). ... (2) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan (plan zabudowania). ... (4) In case the request is refused, the municipality shall offer the person entitled, as long as it has spare land in its possession, a perpetual lease of land of equal value, on the same conditions, or the right to construct on such land. 5) In case no request, as provided for in paragraph (1), is filed, or the former owner is for any other reasons not granted a perpetual lease or the right to construct, the municipality is obliged to pay compensation pursuant to Article 9. Section 8. In case the former owner is not granted the right to a perpetual lease or the right to construct, all buildings located on the land shall become the property of the municipality, which is obliged to pay, pursuant to Article 9, compensation for the buildings which are fit to be used or renovated. Section 9. ... (2) The right to compensation begins to apply six months after the day of taking the land into possession by the municipality of Warsaw and expires three years after that date. ...” 18. Pursuant to Article 33 § 2 of the Act on Local State Administration of 20 March 1950, the ownership of land located in Warsaw was assigned to the State Treasury. According to the Section 5 § 1 of the Law of 10 May 1990 the ownership of the land which had previously been held by the State Treasury and which was within the administrative territory of municipalities, was transferred to the latter. 19. Under Article XXXIX of the Decree of 11 October 1946 introducing the Property Law (prawo rzeczowe) and the Law on Land and Mortgage Registers, the right to construct and the right to a perpetual lease could be transferred into temporary ownership (własność czasowa). Section 40 of the Law of 14 July 1961 on Administration of Land in Towns and Estates (Ustawa o gospodarce terenami w miastach i osiedlach) replaced temporary ownership with perpetual use (użytkowanie wieczyste). 20. The right of perpetual use is defined in Articles 232 et seq. of the Civil Code (Kodeks Cywilny). It is an inheritable and transferable right in rem which, for ninety-nine years, gives a person full benefit and enjoyment of property rights attaching to land owned by the State Treasury or municipality. It has to be registered in the court land register in the same way as ownership. The transfer of that right, like the transfer of ownership, can be effected only in the form of a notarised deed, on pain of its being void ab initio. The “perpetual user” (użytkownik wieczysty) is obliged to pay the State Treasury (or the municipality, as the case may be) an annual fee which corresponds to a certain percentage of the value of the land in question. 21. Article 35 of the Code of Administrative Procedure (“the code”) of 1960 lays down time-limits ranging from 1 month to 2 months for dealing with a case pending before an administrative authority. If these time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit. Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent such delays in the future. 22. On 1 October 1995 a new Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) came into force. According to the provisions of Article 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint about inactivity on the part of an authority obliged to issue an administrative decision. Article 26 of the Law provides: “When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.” 23. Pursuant to Article 30 of the Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under Section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question. 24. Under the same provision, a party to the proceedings who sustains damage as a result of a failure of the administrative body to act in compliance with the judgment of the Supreme Administrative Court given under Article 17 of the Act, is entitled to claim compensation from the administrative authority concerned, according to principles of civil liability as set out in the Civil Code. Such a claim should be first lodged with that authority. A decision on the compensation claim should be taken by that administrative authority within three months. If the authority concerned fails to give a ruling in this respect within this time-limit, or if the party is not satisfied with the compensation granted, a compensation claim against the administrative body can be lodged with a civil court. 25. The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Proceedings before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004. Section 3 § 2 of the 2002 Act contains provisions analogous to Section 17 of the 1995 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.