CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 décembre 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 14 December 2017   FIRST SECTION Application no. 6992/11 Joanna BELLER against Poland lodged on 14 January 2011 STATEMENT OF FACTS The applicant, Ms Joanna Beller, was a Polish national, who was born in 1934 and lived in Warsaw. She has been represented before the Court by Mr   J.   Forystek, a lawyer practising in Kraków. A.     Background to the case The applicant’s father owned the so-called “Kraków Bishops’ Palace” situated in the centre of Warsaw and the plot of land on which it stood. The Government submitted that 75 to 80 % of the building had been destroyed during the Second World War. 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 ) the Warsaw municipality (and after 1950 the State Treasury) became the owner of all plots of land located in Warsaw. The decree gave the former owners the possibility of obtaining a perpetual lease (after 1946 - temporary ownership) of a plot of land on request. In 1947 the applicant’s father concluded, before a public notary, an agreement with a certain state institution, according to which that institution was to obtain the right of use of the property upon its declaration to reconstruct the palace. The Government submitted that the agreement at issue had never been enforced because it was illegal. In 1948, under the 1945 Decree, the applicant’s father lodged a request to be granted the right of temporary ownership of the plot of land formerly owned by him. It was refused by a decision issued in 1949, which was served neither on him, nor on his lawyer. In 1951 the applicant’s father died. In 1955 another decision refusing the 1948 request was issued. This decision was also not served. On 14 March 1990 the applicant, as the sole heir to her father’s property (the inheritance proceedings were completed in October 1990), filed a petition with the Warsaw Śródmieście District Office ( urząd dzielnicowy ) in which she requested the restitution of her property. Administrative proceedings were subsequently pending before various authorities, including the administrative courts. On 12 November 1997 the Head of the Warsaw District Office re ‑ examined the request lodged by the applicant’s father in 1948. He granted the applicant the perpetual use of the land and declared that she retained the ownership of the building located thereon, in accordance with the 1947 agreement. The Head of the District Office found that a plan for the future use of the building, prepared by the applicant, complied with the existing town-planning scheme. On 1 February 2005 the Court found a violation of Article   6 of the Convention on account of excessive length of administrative proceedings. B.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. After the Court’s judgment the proceedings were conducted further. Eventually, on 14 July 2009 the Mazowsze Governor gave a decision by which he discontinued appellate proceedings brought in respect of the decision of 12 November 1997 by the Social Insurance Authority which had its seat in the building on the plot of land concerned. On 1 December 2009 the Warsaw Administrative Court dismissed that authority’s appeal against the decision. The prosecuting authorities, in their capacity as guardian of the legal order, and the Social Insurance Authority appealed against this decision. On 29 July 2010 the Supreme Administrative Court dismissed the prosecuting authorities’ cassation appeal against a decision of 14   July 2009 given by the Mazowsze Governor. In 2010 the Warsaw Governor instituted ex officio proceedings with a view to declaring null and void ( postępowanie nadzorcze ) the decision of 12   November 1997 conferring on the applicant the right of perpetual use of the land concerned. Two decisions were given in these proceedings. Each of them was subsequently declared unlawful by the Minister of Construction. On 30 November 2012 the Warsaw Governor ultimately discontinued these proceedings, considering that they had become devoid of purpose. No steps were taken in order for the decision of 19 November 1997 to be given any practical effect. The applicant’s repeated requests to this effect were to no avail. On 6 May 2015 the Warsaw Governor again instituted ex officio proceedings ( postępowanie nadzorcze ) with a view to declaring null and void the November 1997 decision. These proceedings are currently pending. The decision was not executed. On 30 November 2012 Ms Joanna Beller died. On 6 August 2015 Mr Robert Beller obtained a judicial decision to the effect that he was her general legal successor in respect of one ‑ third of her estate. C.     Relevant domestic law In accordance with the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw ( dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy ) the ownership of all land was transferred to the municipality. The decree provided in so far as relevant: Article   5. “Buildings and other objects located on the land being transferred to the municipality’s ownership remain the property of those who have owned them so far, unless specific provisions provide otherwise.” Article   7. “(1)     The owner of a plot of land ... can within 6 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.” Article   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.” Article   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. ...” 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 ). Article 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 ). Pursuant to Article 33(2) of the Local State Administration Act of 20   March 1950, ownership of property situated in Warsaw was assigned to the State Treasury. The Local Self-Government Act of 10 May 1990 re-established local self ‑ government. Pursuant to Article 5(1), ownership of land which had previously been held by the State Treasury and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality. COMPLAINTS The applicant complains under Article 6 of the Convention about the excessive length of the administrative proceedings since the Court’s judgment in 2005. He further complains under Article 1 of Protocol No. 1 that the decision of 1997 conferred on his legal predecessor, his mother, was a right protected under this provision and that this was ultimately confirmed by the judgment of the Supreme Administrative Court given in 2010. Despite this, and despite the fact that this decision has a status of res iudicata , various measures were applied in order to prevent him from the actual exercise of the rights conferred by this decision; including by way of supervision proceedings instituted ex officio by the authorities. QUESTIONS TO THE PARTIES 1.     Was the length of the administrative proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?   2.     What is the period to be taken in consideration in the present case for the purposes of examination the length of proceedings under this provision?   3.     Is Article 1 of Protocol No. 1 applicable to the rights conferred on the applicant by the final administrative decision of 19 November 1997?   4.     Do the facts of the case amount to a violation of Article 1 of Protocol No.   1 of the Convention? Reference is made to the fact that no measures have been taken in order to make it possible for the applicant to enjoy the economic effects of rights originating in this decision.   5.     Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article   1 of Protocol   No.   1? Was it compliant with the requirements of this provision?