Last Updated on April 28, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 6992/11
Joanna BELLER
against Poland
The European Court of Human Rights (First Section), sitting on 26 March 2019 as a Committee composed of:
KsenijaTurković, President,
Krzysztof Wojtyczek,
Armen Harutyunyan, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 14 January 2011,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Joanna Beller, was a Polish national who was born in 1934 and lived in Warsaw. She was represented before the Court by Mr J. Forystek, a lawyer practising in Cracow.
2. Ms Joanna Beller died on 30 November 2012. On 6 August 2015, her son, Mr Robert Beller, obtained a judicial decision to the effect that he was her legal successor in respect of one-third of her estate.
3. The Polish Government (“the Government”) were represented by their Agents, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
5. The applicant’s father had owned the so-called “Cracow Bishops’ Palace” together with a plot of land situated in the centre of Warsaw. By virtue of the 1945 Decree on the Ownership and Use of Land in Warsaw (dekret o własnościiużytkowaniugruntównaobszarze m. st.Warszawy), the Warsaw municipal authority became the owner of all plots of land located in Warsaw.
6. In 1948 the applicant’s father applied for the right of temporary ownership of the plot of land formerly owned by him. His request was refused by a decision issued in 1949 (“the 1949 decision”).
7. On 14 March 1990 the applicant, as the sole heir to her father’s property, filed a petition with the Warsaw Śródmieście District Office in which she requested the restitution of her property. The case was subsequently examined by various authorities, including the administrative courts.
8. On 25 August 1997 the Warsaw Governor declared the 1949 decision null and void.
9. Subsequently, on 12 November 1997 the head of the Warsaw District Office gave a decision in respect of the application lodged by the applicant’s father in 1948. He granted the applicant perpetual use of the land and declared that she retained ownership of the building located thereon.
10. On 1 February 2005 the Court found a violation of Article 6 of the Convention on account of excessive length of the administrative proceedings (see Beller v. Poland, no. 51837/99, § 71, 1 February 2005).
2. Administrative proceedings
(a) Proceedings relating to the right of perpetual use
11. On 13 December 2001 the President of the Housing and Urban Development Office (PrezesUrzęduMieszkalnictwaiRozwojuMiast) declared the decision of 25 August 1997 null and void. Following a number of appeals, the decision of 13 December 2001 was upheld by a judgment of the Supreme Administrative Court on 13 April 2005.
12. In a decision of 14 July 2009 the Mazowsze Governor discontinued appellate proceedings brought in respect of the decision of 12 November 1997 (see paragraph 9 above) by the Social Insurance Institution, which had its seat in a building situated on the plot of land in question.
13. On 1 December 2009 the Warsaw Administrative Court dismissed a further appeal lodged by the institution against the Governor’s decision.
14. On 29 July 2010 the Supreme Administrative Court dismissed a cassation appeal lodged by the prosecuting authorities and the Social Insurance Institution.
(b) First set of proceedings seeking to have the 1997 decision declared null and void
15. On an unknown date in 2010 the Warsaw Governor instituted of its own motion proceedings seeking to have the decision of 12 November 1997 declared null and void (postępowanienadzorcze). Two decisions were given in the course of those proceedings. Each of them was subsequently declared unlawful by the Minister of Construction. On 30 November 2012 the Warsaw Governor ultimately discontinued those proceedings, considering that they had become devoid of purpose.
(c) Second set of proceedings seeking to have the 1997 decision declared null and void
16. On 6 May 2015 the Warsaw Governor again instituted of its own motion proceedings (postępowanienadzorcze) seeking to have the decision of 12 November 1997 declared null and void.
17. On 30 November 2016 the Warsaw Governor declared the decision of 12 November 1997 null and void. The Governor noted that the building complex on the plot of land in question was also partially situated on adjacent plots. Therefore, the decision of 12 November 1997 could not have been executed. In addition, the Governor held that the decision of 25 August 1997, which had preceded the decision in question, had been declared null and void (see paragraph 11 above).
18. On 30 March 2018 the Minister of Investment and Development (Minister InwestycjiiRozwoju) upheld the first-instance decision. The minister relied on the fact that the building complex was situated on several plots, not only those that had previously belonged to the applicant’s legal predecessor, and that as it had not been possible to divide the building, the 1997 decision could not have been executed.
19. Following an appeal lodged by Mr Beller, the proceedings are still pending before the Warsaw Regional Administrative Court.
3. Other proceedings
20. On an unknown date Mr Robert Beller and two other heirs of the former owner of the property in question instituted civil proceedings against the Social Insurance Institution, which has its seat in the building, seeking recovery of that building and remuneration for its non-contractual use.
21. On 24 February 2017 the Warsaw Regional Court gave a preliminary judgment and granted the plaintiffs’ claim in part. It awarded Mr Beller 18,587,839.97 Polish zlotys (PLN) (approximately 4,426,000 euros (EUR)) as compensation for the non-contractual use of the building. The court further held that it could not decide on the remainder of the plaintiffs’ claim (for recovery of the building) in view of the Warsaw Governor’s decision of 30 November 2016 (see paragraph 18 above).
22. Following an appeal lodged by the defendant, the proceedings are pending.
COMPLAINTS
23. The applicant complained under Article 6 of the Convention of the excessive length of the administrative proceedings in the case.
24. She further complained under Article 1 of Protocol No. 1 that the decision of 12 November 1997 conferring on her a property right remained unenforced and that various measures had been applied in order to prevent her from exercising her property rights.
THE LAW
A. Standing of Mr Robert Beller
25. The Court notes at the outset that the applicant died after the introduction of the application and that her son, Mr Robert Beller, informed the Court that he wished to pursue the application introduced by his late mother. Mr Beller submitted a judicial decision to the effect that he was the applicant’s heir in respect of one-third of her estate (see paragraph 2 above).
26. The respondent Government did not object to the wish expressed by the applicant’s son to pursue the application.
27. The Court has accepted on a number of occasions that close relatives of a deceased applicant may be entitled to take his or her place (see, inter alia, Goc v. Poland (dec.), no. 48001/99, 23 October 2001). In the present case, the Court accepts that the applicant’s son can pursue the application in his late mother’s stead.
B. Complaint under Article 6 of the Convention
28. On 11 May 2018 and 4 July 2018 the Court received friendly‑settlement declarations signed by the Government and Mr Beller. Under these declarations, Mr Beller agreed to waive any further claims against Poland in respect of the complaint under Article 6 § 1 about the length of the administrative proceedings against an undertaking by the Government to pay him PLN 25,000 (twenty-five thousand Polish zlotys) covering any pecuniary and non-pecuniary damage as well as costs and expenses. That sum 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.
29. In the event of failure to pay that sum within the said three-month period, the Government undertook to pay simple interest on it, from the 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 in respect of the complaint under Article 6 § 1 of the Convention.
30. Accordingly, the Court takes note of the friendly settlement reached between the parties and is satisfied that the settlement is based on respect for human rights, as defined in the Convention and its protocols. The Court finds no reasons to justify the continued examination of this part of the application (Article 37 § 1 in fine of the Convention).
31. In view of the above, it is appropriate to strike this part of the application out of the list of cases, in accordance with Article 39 of the Convention.
C. Complaint under Article 1 of Protocol No. 1 to the Convention
32. The applicant complained under Article 1 of Protocol No. 1 to the Convention that the decision of 12 November 1997, which had conferred property rights on her, had remained unenforced. Subsequently, Mr Beller submitted that the authorities had instituted of their own motion, and at the request of the defending party, proceedings seeking to have that decision declared null and void.
33. The Government maintained that the decision of 12 November 1997 had been declared null and void by administrative authorities at two levels and that an appeal was pending before the Warsaw Regional Administrative Court. Therefore in their view the complaint under Article 1 of Protocol No. 1 to the Convention was premature.
34. The Court observes that on 12 November 1997 the head of the Warsaw District Office granted the applicant perpetual use of the land in question and declared that she had retained ownership of the building located thereon (see paragraph 9 above). That decision was finally upheld on appeal on 29 July 2010 (see paragraph 14 above).
35. However, proceedings seeking to have that decision declared null and void were subsequently instituted. The Court observes that on 30 November 2016 and 30 March 2018 respectively, the Mazowsze Governor and the Minister of Investment and Development declared the decision of 12 November 1997 null and void (see paragraphs 18 and 19above). It further notes that the proceedings relevant for the determination of the applicant’s claim have not yet been terminated and that a further appeal is currently pending before the Warsaw Regional Administrative Court (see paragraph 20 above).
36. Consequently, in so far as the applicant relies on Article 1 of Protocol No. 1 to the Convention, the Court considers that it would be premature to take a position on the substance of this complaint.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases in so far as it concerns the complaint under Article 6 § 1 of the Convention;
Declares inadmissible the remainder of the application.
Done in English and notified in writing on 18 April 2019.
RenataDegener KsenijaTurković
DeputyRegistrar President
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