PROCEDURE

1.  The case originated in an application (no. 37040/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Iranian nationals, Mr Alireza Ranjbar, Mr Pejman Piran, Mr Abolfazl Ajorlu, Mr Seyid Ali Alemzadeh and Mr Mostaba Naderani Vatanpur (“the applicants”), by an e-mail sent in the evening of Friday 24 August 2007.

2.  The applicants were represented by Mr S. Efe and Mr V.R. Turgut, lawyers practising in Ankara and Van respectively. Their forms of authority were issued by the applicants' immediate relatives in Iran and . The Turkish Government (“the Government”) were represented by their Agent.

3.  The applicants' representative alleged that his clients' deportation to Iran would subject them to ill-treatment and torture and that they were not afforded protection under Article 5, in particular as they had been unlawfully detained for a period of more than six days and had no means to challenge the lawfulness of their detention.

4.  A request for an interim measure under Rule 39 of the Rules of Court was processed on Monday 27 August 2007, and the applicants' representative was asked to submit additional supporting information. In the morning of 28 August 2007 the Acting President of the Chamber to which the case had been allocated initially decided to apply Rule 40 (urgent notification of an application) until the requisite information was provided. Following the submission of this information on the same day, the President subsequently indicated to the Government, under Rule 39, that the applicants should not be deported to Iran until further notice.

5.  On 4 September 2007 the respondent Government informed the Court that the applicants had already been deported to Iraq on 22 August 2007, two days before the Rule 39 request had been filed by their representative. The interim measure was consequently lifted on 6 September and further information concerning the applicants' deportation was requested from the respondent Government.

6.  On 9 April 2008 the applicants' representative informed the Court that the applicants had been resettled in  and wished to pursue their application. Forms of authority issued by the second, third and fourth applicants were subsequently submitted, but the applicants' representative informed the Court on 1 October 2009 that he had not been able to contact the first and fifth applicants.

7.  On 13 May 2008 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

8.  The applicants were born in 1972, 1982, 1985, 1978 and 1983 respectively and currently live in Sweden.

9.  The applicants fled Iran and entered Turkey illegally on various dates in 2005 and 2006.

10.  On various dates between 19 April 2005 and 3 October 2006, the applicants appeared at the office of the United Nations High Commissioner for Refugees (“the UNHCR”) in Turkey, which recognised their refugee status and issued them with refugee certificates on 24 August 2007.

11.  On unspecified dates the applicants lodged asylum applications with the Turkish authorities and sought residence permits. They were questioned twice by police officers from the Aliens Department on various dates in November 2006 for an assessment of their asylum request. During the questioning the applicants stated that they had been members of different illegal organisations and had been involved in anti-regime activities in Iran. They had either been detained on numerous occasions or sentenced to imprisonment and/or punishment by lashing. They all maintained that they would face a personal risk of ill-treatment or death if they were to be returned to Iran.

12.  The applicants were permitted to live in Van pending the asylum proceedings and were allowed to leave the city boundaries subject to specific permission. In this connection one of the applicants (Mostaba Naderani Vatanpur) was issued with a permit allowing him to travel to Ankara between 22 and 31 August 2007 for various resettlement interviews.

13.  On an unspecified date the applicants' asylum request was rejected by the authorities on the ground that they had not complied with the relevant criteria. In respect of the fourth applicant, the interview forms indicated that the authorities did not find the applicant's replies credible and considered that he had left his country for higher economic standards.

14.  On an unspecified date the applicants were apprehended and held at the Van Security Directorate for an undetermined period before they were notified of the deportation orders on 22 August 2007 at 12.30 p.m. The deportation orders bear the signatures of the applicants and a translator. The applicants were deported to Iraq on the same day.

15.   Upon their arrival in Iraq the applicants claimed to have been held in detention for about a month. They then had lived in Northern Iraq for some five months before they were resettled in Sweden on 10 February 2008.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

16.  A description of the relevant domestic law can be found in the Court's judgment in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-45, 22 September 2009).

THE LAW

I.  SCOPE OF THE CASE

A.  In respect of the first and fifth applicants

17.  The Court notes that the applicants' representative informed it on 1 October 2009 that he had not been able to contact the first and fifth applicants (Mr Alireza Ranjbar and Mr Mostaba Naderani Vatanpur).

18.  The Court considers that, in these circumstances, these applicants may be regarded as no longer wishing to pursue their application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine and bearing in mind that the applicants are resettled in Sweden, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

19.  In view of the above, the Court holds that it is appropriate to strike the application out of the list of cases in respect of the first and fifth applicants. The Court will therefore confine its examination of the case in respect of the second, third and fourth applicants.

B.  In respect of the remaining applicants

20.  The Court observes that, following the communication of the present case to the respondent Government, further new complaints under Articles 3 and 6 of the Convention as well as under Article 1 of Protocol No. 7 were submitted on 2 February 2009, concerning in particular the conditions of the applicants' detention both in Turkey and Iraq and the lack of procedural safeguards.

21.  The Court considers that the new complaints raised under Articles 3 and 6 do not elaborate on the applicants' original complaints and relate to events which occurred more than six months before the initial complaints were lodged with the Court on 24 August 2007. The Court reiterates that, when a new complaint is raised for the first time during the proceedings before the Court, the running of the six-month period is not interrupted until this complaint is actually lodged (see Sarl Aborcas and Borowik v. France (dec.), no. 59423/00, 10 May 2005, and Loyen v. France (dec.), no. 46022/99, 27 April 2000). The Court therefore rejects them in accordance with Article 35 §§ 1 and 4 of the Convention (Hazırcı and Others v. Turkey, no. 57171/00, § 54, 29 November 2007).

22.  The Court further observes that Turkey has not ratified Protocol No. 7. It follows that this part of the complaints is incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION

23.  The applicants initially complained under Articles 2 and 3 that their deportation to Iran would expose them to ill-treatment and even death. Following their deportation to Iraq and resettlement in Sweden, the applicants maintained the same complaints and asserted that they had lived in fear that the Iraqi authorities could return them to Iran.

24.  The Government contended that the applicants had not exhausted domestic remedies and that they had not been deported to Iran at any point in time and therefore lacked victim status. The applicants had been deported to Iraq with due respect for the principle of non-refoulement.

25.  The Court notes that the applicants are currently resettled in Sweden. They had already been deported to Iraq on 22 August 2007, two days before the matter was brought before the Court. In other words, there was no interim measure in force at the time of the applicants' deportation and, therefore, the Government's consequent responsibility under Article 34 had not been engaged.

26.  In view of the fact that the applicants' complaints under this heading concerned their possible deportation to Iran, which did not take place, and that they currently live in Sweden, the Court holds that the applicants can no longer claim to be victims, within the meaning of Article 34, as far as their complaints under Articles 2 and 3 of the Convention are concerned (see, mutatis mutandis, Mohammedi v. Turkey (dec.), no. 3373/06, 30 August 2007, and Ayashi v. Turkey (dec.), no. 3083/07, 18 November 2008).

27.  It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4.

III.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

28.  The applicants asserted that they ought to have been allowed to benefit from the protection of Article 5 in general during their detention. They complained in particular that they had been detained for a period of more than six days and had no means to challenge their detention in breach of Article 5 §§ 3 and 4 of the Convention.

29.  The Court which is the master of the characterisation to be given in law to the facts of the case (see Castravet v. Moldova, no. 23393/05, § 23, 13 March 2007) finds that the complaints at issue fall to be examined under Article 5 §§ 1 and 4 of the Convention.

30.  On communication of the application to the respondent Government, a further question was raised by the Court concerning compliance with Article 5 § 2 of the Convention with regard to the notification to the applicants of the reasons for their deprivation of liberty.

A. The parties' submissions

31.  The Government contested the complaints and contended that the applicants had not been arrested or detained but had been held as an administrative measure prior to deportation, in conformity with Article 5 § 1 (f) of the Convention. The applicants had been involved in activities against the Iranian administration during their stay in Turkey and for reasons of national security their residence in Turkey had not been deemed appropriate by the Turkish authorities. The legal grounds for their deprivation of liberty were sections 19 and 23 of the Act on the Residence and Travel of Foreigners in Turkey (Law no. 5683) and section 8 of the Passport Act (Law no. 5682). As to the complaint under Article 5 § 2 of the Convention, deportation orders had been issued in conformity with Article 32 of the 1951 Convention relating to the Status of Refugees (“the Geneva Convention”) and the applicants had been notified of the deportation orders in the presence of a translator. Regarding the complaint under Article 5 § 4 of the Convention, the Government submitted that the applicants had had the right to object against the deportation orders before the relevant authorities, failing which they could have brought complaints before the administrative courts. They had been aware of the domestic procedure but had not made use of it.

32.  The Government did not make any submissions as to the Court's specific questions regarding the national-security grounds which had prompted the authorities to issue deportation orders in respect of the applicants, the overall length of the applicants' deprivation of liberty and the manner of their deportation.

33.  The applicants contended that they had been unlawfully detained for a period of six days before their deportation on 22 August 2007. They asserted that official records indicating the date, time and location of their detention, the grounds for it and the name of the arresting officer had not been kept by the authorities. Additionally, they had not been allowed to see their lawyers during this period. Furthermore, neither they nor their lawyers had received an official letter indicating the reasons for their detention.

B.  The Court's assessment

1.  Admissibility of Article 5 §§ 1, 2 and 4

34.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.

2.  Merits

(a)  Article 5 § 1

35.  The Court observes that the Government did not contest that the applicants had been held at the Van Security Directorate. According to the Government, the applicants had been held as an administrative measure for deportation purposes and there had therefore not been any need for them to be brought before a judge.

36.  The Court considers that, whether for administrative or any other purposes and irrespective of its length, the applicants' forced placement at the Van Security Directorate under the given circumstances amounted to a “deprivation of liberty” with a view to their deportation.

37.  The Court points out that Article 5 § 1 of the Convention circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom (see Quinn v. France, 22 March 1995, § 42, Series A no. 311). By laying down that any deprivation of liberty should be “in accordance with a procedure prescribed by law”, Article 5 § 1 requires, firstly, that any arrest or detention should have a legal basis in domestic law (see Amuur v. France, 25 June 1996, § 50, Reports of Judgments and Decisions 1996III). The Convention here refers essentially to national law and establishes the need to apply its rules, but it also requires that any measure depriving the individual of liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see Ashingdane v. the United Kingdom, 28 May 1985, § 44, Series A no. 93). What is at stake here is not only the “right to liberty” but also the “right to security of person”.

38.  “Lawfulness” and “absence of arbitrariness” are common requirements for the whole of Article 5 of the Convention, including Article 5 § 1 (f). In this connection, particular safeguards against arbitrariness, such as the recording of accurate holding data concerning the date, time and location of detainees, as well as the grounds for the detention and the name of the persons effecting it, are necessary for the detention of an individual to be compatible with Article 5 § 1 (see Yasin Ateş v. Turkey, no. 30949/96, § 142, 31 May 2005). These rules apply equally for anyone who is deprived of their liberty, whether for administrative, criminal or any other purposes.

39.  The Court therefore first needs to establish whether the requirements of “lawfulness” and the “absence of arbitrariness” were met before moving on to examine the issue of whether the applicants' deprivation of liberty was governed by the exceptions set out in Article 5 § 1 (f) of the Convention.

40.  The Court notes in the instant case that the legal provisions referred to by the respondent Government (see paragraph 30 above) provide that foreigners who do not have valid travel documents or who cannot be deported are obliged to reside at places designated by the Ministry of the Interior. These provisions do not refer to a deprivation of liberty in the context of deportation proceedings. They concern the residence of certain groups of foreigners in Turkey, but not their detention. Nor do they provide any details as to the conditions for ordering and extending detention with a view to deportation, or set time-limits for such detention.

41.  The Court finds that the applicants' deprivation of liberty, irrespective of its duration, did not have a sufficient legal basis in the particular circumstances (see Abdolkhani and Karimnia, cited above, § 133).

42.  The Court further notes that the Government were requested to submit the applicants' deportation files and provide specific information as to the periods of detention, the overall length of their deprivation of liberty and the manner of their deportation. Among the documents submitted in reply, the Court observes that there are no records of holding data showing the date, time and location of the applicants' detention. It is not clear when, where and by whom exactly the applicants were apprehended and how long they had actually been deprived of their liberty before they were deported. The case file further contains no information regarding when and how the applicants were deported. In other words, there exists no information regarding the termination of the applicants' deprivation of liberty while they were still under the control of the Turkish authorities.

43.  In view of the above, the Court finds that the deprivation of liberty to which the applicants were subjected did not have a strictly-defined statutory basis circumscribed by adequate safeguards against arbitrariness (see Nasrulloyev v. Russia, no. 656/06, § 77, 11 October 2007; Chahal v. the United Kingdom, 15 November 1996, § 118, Reports 1996V; and Saadi v. the United Kingdom [GC], no. 13229/03, § 74, ECHR 2008...). The national system thus failed to protect the applicants from arbitrary detention and, consequently, their detention cannot be considered “lawful” for the purposes of Article 5 of the Convention.

The Court concludes that there has been a violation of Article 5 § 1 of the Convention.

(b)  Articles 5 §§ 2 and 4

44.  Having regard to the above findings of violations stemming from the absence of holding data and thus the inability to determine the exact length of detention before deportation, the Court holds that no separate issue arises under Articles 5 §§ 2 and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

A.  Damage

45.  The second, third and fourth applicants claimed 24,300 euros (EUR) in respect of pecuniary damage, mainly covering their expenses in Iraq, such as accommodation, food, clothing and telephone calls. They further alleged that they had had to pay two months of additional rent for their flat in Turkey following their deportation and that their belongings in Turkey had had to be sold urgently at a low price because of their need for money. They maintained that they could not work during their stay in Iraq and had thus been deprived of possible income. Furthermore, had they not been deported to Iraq they would have had been resettled in the United States during that period and would also have been entitled to a certain amount of income.

The applicants also claimed EUR 100,000 in respect of non-pecuniary damage.

46.  The Government contested these claims and maintained that they were excessive.

47.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore dismisses this claim.

However, it considers that the applicants must have suffered nonpecuniary damage which cannot be compensated solely by the finding of violations. Having regard to equitable considerations, the Court therefore awards the second, third and fourth applicants EUR 9,000 each in respect of non-pecuniary damage.

B.  Costs and expenses

48. The second, third and fourth applicants also claimed EUR 4,100 for the costs and expenses incurred before the Court such as lawyers' fees, telephone calls, fax costs and taxi fees. In relation to their claim they referred to the Ankara Bar Association's scale of fees.

49.  The Government contested these claims and maintained that only costs actually incurred could be reimbursed.

50.  The Court considers that, in the absence of any relevant documents in support of these claims as required by Rule 60 of the Rules of Court, it makes no award under this head (see Gök and Güler v. Turkey, no. 74307/01, § 66, 28 July 2009).

C.  Default interest

51.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Decides to strike the application out of its list of cases in respect of the first and fifth applicants;

2.  Declares admissible the complaints under Article 5 §§ 1, 2 and 4 concerning the unlawfulness of the remaining applicants' deprivation of liberty before their deportation, the lack of notification of the reasons for their detention, the ineffectiveness of the judicial review of the applicants' detention;

3.  Declares the remainder of the applications inadmissible;

4.  Holds that there has been a violation of Article 5 § 1 of the Convention;

5.  Holds that no separate issue arises under Article 5 §§ 2 and 4 of the Convention;

6.  Holds

(a)  that the respondent State is to pay the second, third and fourth applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,000 (nine thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7.  Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 13 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1  The case originated in an application (no. 61908/00) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Güneş (“the applicant”), on 23 July 2000.

3.  On 26 May 2005 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the length of the applicant’s detention on remand and his right to a fair hearing within a reasonable time. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

4.  The applicant was born in 1951 and lives in .

5.  On 16 July 1993 the applicant was taken into police custody by police officers from the anti-terrorist branch of the Istanbul Security Directorate on suspicion of membership in an illegal organisation, the TDP (Revolutionary Party of Turkey) and of possessing a false identity card. He was held in police custody until 30 July 1993.

6.  On 30 July 1993 he was brought before a judge who ordered his detention on remand. He asserted that he had not signed any statement and claimed that he had been subjected to ill-treatment while in police custody.

7.  On 15 September 1993 the Chief Public Prosecutor at the Istanbul State Security Court filed a bill of indictment with the latter charging the applicant under Article 168 § 1 of the Criminal Code with membership of an illegal organisation.

8.  On 25 January 2000 the applicant was released from detention.

9.  Between 16 July 1993 and 25 January 2000 the  held thirty-six hearings. The applicant requested to be released pending trial several times before the trial court. The  dismissed his request on all occasions, having regard to the state of the evidence, until 25 January 2000.

10.  On 26 March 1996 the Istanbul State Security Court requested the Forensic Medical Institute to carry out an analysis as to whether the documents, which were submitted as written evidence, were drafted by the applicant and another co-accused, namely M.A.A..

11.  Until 17 February 2004 the trial court postponed the hearings in order to wait for the Forensic Medical Institute’s report on the issue and to be informed about the prison that M.A.A had been detained.

12.  On 17 February 2004 the  ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time-limit under Articles 102 and 104 of the Criminal Code had expired.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

13.  The applicant complained that his detention on remand exceeded the “reasonable time” requirement as provided in Article 5 § 3 of the Convention, which reads insofar as relevant as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

14.  The Government contested that argument.

A.  Admissibility

15.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

16.  The Government submitted that the  did not unduly prolong the applicant’s detention on remand. The offence with which the applicant was charged was of a serious nature, and his detention on remand was also necessary to prevent him from committing any further offences or from fleeing after having done so. The  took into consideration the very high risk of the applicant escaping of or removing evidence or traces, and there has been a genuine public interest for the continued detention of the applicant, since the offence attributed to him was of a serious nature.

17.  The applicant maintained that the  relied on the “nature of the offence, the state of the evidence and the duration of the detention” when it rejected his requests for release pending trial, without having discussed the possibility of his destroying evidence or absconding. The applicant maintained that the grounds given by the  for his continued detention on remand had been insufficient.

18.  The Court reiterates that it falls, in the first place, to the national judicial authorities to ensure that, in a given case, the detention of an accused person pending trial does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty, and set them out in their decisions on the applications for release. It is primarily on the basis of the reasons given in these decisions and of the established facts mentioned by the applicant in his appeals that the Court must determine whether or not there has been a violation of Article 5 § 3 of the Convention (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998VIII, § 154).

19.  The persistence of reasonable suspicion that the person arrested has committed an offence is a sine qua non for the validity of the continued detention but, after a certain lapse of time, it no longer suffices. The Court must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty (see, among other authorities, Ilijkov v. Bulgaria, no. 33977/96, § 77, 26 July 2001, and Labita v. Italy [GC], no. 26772/95, §§ 152-153, ECHR 2000-IV).

20.  The Court notes that, in the instant case, the period to be taken into consideration began on 16 July 1993 and ended on 25 January 2000, when the applicant was released. It thus lasted more than six years and six months. During this period, the  prolonged the applicant’s detention on remand using identical, stereotyped terms, such as “having regard to the nature of the offence, the state of evidence and the duration of detention”.

21.  The Court takes note of the seriousness of the offence attributed to the applicant and the severity of the relevant punishment. However, it recalls that the danger of absconding cannot solely be assessed on the basis of the severity of the sentence risked, but must be analysed with reference to a number of other relevant additional elements, which may either confirm the existence of such a danger or make it appear so slight that it cannot justify detention pending trial (see Muller v. France, judgment of 17 March 1997, Reports 1997-II, § 43; Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 43). In this regard, the Court notes the lack of such sufficient reasoning in the domestic court’s decisions to prolong the applicant’s remand in custody.

22.  Finally, although, in general, the expression “the state of evidence” may be a relevant factor for the existence and persistence of serious indications of guilt, in the present case it nevertheless, alone, cannot justify the length of the detention of which the applicant complains (see Letellier, cited above; Tomasi v. France, judgment of 27 August 1992, Series A no. 241A; Mansur v. Turkey, judgment of 8 June 1995, Series A no. 319B, § 55, and Demirel v. , no. 39324/98, § 59, 28 January 2003).

23.  The foregoing considerations are sufficient to enable the Court to conclude that the length of the applicant’s detention on remand, which lasted over six years and six months and eleven days, given the stereotype reasoning of the court, has not been shown to be justified.

24.  There has accordingly been a violation of Article 5 § 3 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

25.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads insofar as relevant as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

26.  The Government contested that argument.

A.  Admissibility

27.  The Court considers that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B.  Merits

28.  The Government contended that the length of the case was not excessive and that there was no negligence on the part of the national authorities. The case was complex, considering the difficulties in collecting evidence, and the trial court waited for the Forensic Medical Institute’s report concerning an analysis as to whether the documents, which submitted as written evidence, were drafted by the applicant.

29.  The Court notes that the period to be taken into consideration began on 16 July 1993, when the applicant was taken into police custody, and ended on 17 February 2004, when the Istanbul State Security Court ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time-limit under Article 102 and 104 of the Criminal Code had expired. The proceedings lasted approximately ten years and seven months before one level of jurisdiction.

30.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II)

31.  Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

32.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

33.  The applicant claimed 45,000 euros (EUR) in respect of pecuniary damage. He further claimed a total of EUR 25,700 for nonpecuniary damage.

34.  The Government disputed these claims.

35.  As regards the alleged pecuniary damage sustained by the applicant, the Court observes that he has not produced any document in support of his claim. Accordingly, the Court dismisses the applicant’s claims in respect of pecuniary damage.

36.  With regard to the non-pecuniary damage, the Court considers that the applicant may have suffered a certain amount of distress in the circumstances of the case. Taking into account the circumstances of the case and having regard to its case-law, the Court awards the applicant EUR 9,000 under that head.

B.  Costs and expenses

37.  The applicant also claimed EUR 10,542 for the costs and expenses incurred before the domestic courts and the Court.

38.   The Government maintained that only those expenses which were actually and necessarily incurred could be reimbursed. In this connection, they submitted that the applicant and his representative had failed to submit documents showing the costs and expenses.

39.  According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award to EUR 1,500 covering costs and expenses.

C.  Default interest

40.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the remainder of the application admissible;

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into new Turkish liras at the rate applicable at the date of settlement:

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 21 September 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 61454/00) against the  lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mrs Magdalena Janas (“the applicant”), on 13 January 2000.

2.  The applicant was represented by Mr Zbigniew Cichoń, a lawyer practising in Kraków. The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and Mr. J.Wołąsiewicz, of the Ministry of Foreign Affairs.

3.  On 10 July 2001 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

4.  The applicant was born in 1948 and lives in .

5.  The applicant and a co-operative “PSS Społem” were co-owners of an estate in Zakopane. On 29 November 1995 the co-operative filed with the Zakopane District Court (Sąd Rejonowy) an application for dissolution of the co-ownership of the estate.

6.  The court held hearings on 10 and 24 January 1996. On the latter date it ordered an expert opinion. On 21 February 1996 the court held a viewing of the site. On 19 April 1996 the expert submitted his opinion to the trial court. On 27 May 1996 the court ordered that a supplementary expert opinion be obtained. It was submitted to the court on 28 June 1996.

7.  At the hearing held on 18 September 1996 the court heard evidence from an expert. The court further ordered him to prepare a supplementary opinion. It was submitted to the court on 10 October 1996.

8.  On 3 February 1997 the court held a hearing and appointed a new expert. On 30 June 1997 the new expert submitted his opinion to the court.

9.  At the hearing held on 21 January 1998 the court decide to obtain evidence from yet another expert. The opinion was submitted to the court on 17 June 1998.

10.  In her pleading of 3 September 1998 the applicant submitted a new proposal concerning the division of the estate. On 28 September 1998 she revoked it.

11.  The court held hearings on 16 December 1998, 22 February and 7 April 1999. On 17 December 1999 the court held a hearing and heard evidence from an expert. At that hearing the applicant authorised her father, who was a court expert, to represent her in the proceedings. As a result, the judge rapporteur asked to be excluded from dealing with the case. On 7 January 2000 the District Court acceded to his request.

12.  On 24 January 2000 the applicant challenged the impartiality of all judges sitting in the Zakopane District Court. On 7 March 2000 the  (Sąd Okręgowy) dismissed the applicant's challenge.

13.  On 15 September 2000 the court held a hearing and ordered another expert opinion. Subsequent hearings were held on 23 April and 23 May 2001. On 6 June 2001 the District Court gave judgment. The applicant appealed. It appears that the proceedings are pending.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

14.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

15.  The Government contested that argument.

16.  The period to be taken into consideration began on 29 November 1995. In the light of the material available to the Court at the date of the adoption of the present judgment, the proceedings are still pending. Their length has accordingly amounted to nearly 8 years and 10 months.

A.  Admissibility

17.  The Court notes that the application is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

18.  The Government submitted that the case had been complex. They referred to the fact that the trial court needed to obtain several expert opinions. They further claimed that the authorities had shown due diligence in the proceedings. The hearings had been scheduled regularly and the District Court had effectively supervised the experts. Moreover, they stressed that the applicant had contributed to the prolongation of the proceedings since she had modified her position. Lastly, they alleged that “special diligence” had not been required on the part of the domestic authorities in this case. They invited the Court to find that there had been no violation of Article 6 § 1 of the Convention.

19.  The applicant replied that some of the expert opinions had been irrelevant for the determination of her claim. She submitted that there had been significant periods of inactivity between the hearings. She further agreed that her challenge of the impartiality of judges sitting in the District Court contributed to some extent to the length of the proceedings but it could not explain their overall duration. In conclusion she stressed that there had been a violation of Article 6 § 1.

20.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, Humen v. Poland [GC], no. 26614/95, 15 October 1999, § 60).

21.  The Court considers that, even though the case was of some complexity, it cannot be said that this in itself justified the entire length of the proceedings.

22.  As to the conduct of the applicant the Court notes that it is true that the applicant had modified her claim, and challenged the impartiality of judges sitting in the District Court, however it does not appear that this significantly prolonged the trial.

23.  Considering the conduct of the authorities the Court observes that there were several periods of inactivity in the proceedings i.e. between 30 June 1997 and 21 January 1998, 17June 1998 and 16 December 1998, 7 April 1999 and 17 December 1999. There were also delays resulting from the slow process of obtaining evidence.

24.  Consequently, having regard to the circumstances of the case and taking into account the overall duration of the proceedings, the Court finds that the “reasonable time” requirement laid down in Article 6 § 1 of the Convention was not complied with in the present case.

25.  There has accordingly been a violation of Article 6 § 1 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

27.  The applicant sought an award of 30,000 Polish zlotys in respect of nonpecuniary damage that she had suffered as a result of the protracted length of the proceedings.

28.  The Government submitted that the applicant's claim was excessive.

29  The Court considers that the applicant certainly suffered nonpecuniary damage, such as distress and frustration on account of the protracted length of the proceedings, which cannot sufficiently be compensated by finding a violation. Taking into account the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant a total sum of 4,500 euros (“EUR”) under that head.

B.  Costs and expenses

30.  The applicant also claimed 20,180.49 Polish zlotys for costs and expenses incurred before the domestic courts and before the Court. This amount included 8,000 Polish zlotys in lawyer's fees for preparation and presentation of her case before the Court.

31.  The Government invited the Court to make an award, if any, only in so far as the costs and expenses were actually and necessarily incurred and were reasonable as to quantum. They relied on the Zimmerman and Steiner v. Switzerland judgment of 13 July 1983 (Series A no. 66, p. 14, § 36). They further stressed that the applicant's representative joined the proceedings before the Court at a final stage, after the exchange of observations on admissibility and merits.

32.  According to the Court's case-law, an applicant is entitled to reimbursement of the costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and making its assessment on an equitable basis considers it reasonable to award the sum of EUR 500 for the proceedings before the Court.

C.  Default interest

33.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 4,500 (four thousand five hundred euros) in respect of non-pecuniary damage and EUR 500 (five hundred euros) in respect of costs and expenses to be converted into Polish zlotys at the rate applicable at the date of the settlement, plus any tax that may be chargeable on the above amounts;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 21 September 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.


PROCEDURE

1.  The case originated in an application (no. 33870/96) against the Republic of Poland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Henryk Fuchs (“the applicant”), on 1 May 1995.

2.  The applicant, who had been granted legal aid, was represented by Mr Wojciech Hermeliński, a lawyer practising in Warsaw, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr Krzysztof Drzewicki, of the Ministry of Foreign Affairs

3.  The applicant alleged, in particular, that in two sets of administrative proceedings in which he had been involved the Polish courts had not respected his right to a “hearing within a reasonable time”.

4.  The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

5.  The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of the Court.

6.  On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).

7.  By a decision of 11 December 2001 the Court declared the application partly admissible.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

8.  The applicant was born in 1925 and lives in Ozorków, Poland.

9.  The applicant is the owner of a plot of land in Ozorków. Since 1989 construction works have been carried out by the applicant’s neighbours (J.C. and Z.W., F.W.) on their plots of land, adjoining his property.

A.  Proceedings concerning the building permit.

10.  On 4 July 1989 the Mayor of Ozorków (Naczelnik Miasta) issued a planning permission concerning the construction of an outhouse (plan realizacyjny budynku gospodarczego) in favour of J.C. The applicant appealed. On 30 August 1989 the Łódź Municipal Office dismissed the applicant’s appeal. On 1 June 1990 the Supreme Administrative Court (Naczelny Sąd Administracyjny) quashed the contested decision.

11.  On 16 October 1992 the Mayor of Ozorków (Burmistrz) granted J.C. a building permit concerning the construction of an outhouse, a garage, a vestibule and a toilet adjacent to the existing house.

12.  On 18 June 1993 J.C. requested the Mayor of Ozorków to grant her a fresh building permit. This was granted on 23 June 1993. The new building permit was to “annul and replace” (“unieważnia i zastępuje”) the one issued on 16 October 1992. Both the applicant and J.C. appealed against the building permit of 23 June 1993.

13.  On 20 August 1993 the Łódź Governor (Wojewoda) quashed the decision of 23 June 1993 and remitted the case to the Mayor of Ozorków.

14.  In the meantime, on 21 June 1993, the Zgierz District Office (Urząd Rejonowy) had inspected J.C.’s construction site. On 24 June 1993 it ordered that the construction works concerning the adjacent dwelling be stayed.

15.  On 23 July 1993 the Łódź Governor reopened the proceedings relating to the building permit of 16 October 1992. On 17 September 1993 the Mayor of Ozorków issued two building permits in favour of J.C. The first permit allowed her to continue the construction of an adjacent dwelling and approved the planning permission. The second permit allowed J.C. to build an outhouse and a garage and approved the planning permission.

16.  The applicant appealed against both these decisions. He failed, however, to pay the fees due for lodging an appeal. As a consequence, on 6 November 1993, the Łódź Governor returned the appeal to the applicant.

17.  Later, the applicant appealed to the Minister of Construction (Minister Gospodarki Przestrzennej i Budownictwa). On 24 December 1993 the Minister set aside both decisions and ordered that the Łódź Governor should examine the merits of the appeal, notwithstanding the applicant’s failure to pay the fees. On 2 February 1994 the Łódź Governor upheld the contested decisions.

18.  On 3 October 1994, upon the applicant’s appeal, the Supreme Administrative Court quashed the decision relating to the issue of the building permit in respect of the adjacent dwelling and declared null and void the building permit relating to the outhouse and the garage. The court found that the original decision of 16 October 1992 was still in force as the decision of 23 June 1993 had been quashed on 20 August 1993.

19.  As a consequence, on 15 February 1995, the Łódź Governor quashed the decision granting the building permit of 16 October 1992 and remitted the case to the Mayor of Ozorków.

20.  On an unspecified date the applicant filed a complaint with the Łódź Governor, alleging inactivity on the part of the Mayor of Ozorków. On 1 June 1995 the Łódź Governor found that the applicant’s complaint was indeed well-founded and obliged the Mayor of Ozorków to render a decision before 14 June 1995.

21.  On 9 August 1995 the Mayor of Ozorków issued a building permit authorising J.C. “to continue the construction of the outhouse and the garage”. The applicant appealed against this decision.

22.  On 18 September 1995 the Łódź Governor set aside the impugned decision and discontinued the proceedings before the Mayor of Ozorków.

23.  On 17 October 1995 the Mayor of Ozorków issued a decision authorising J.C. to use the adjacent dwelling. The applicant appealed against this decision.

24.  On an unspecified date the applicant filed a complaint with the Supreme Administrative Court, alleging inactivity on the part of the Mayor of Ozorków. The complaint was dismissed on 10 January 1996.

25.  On 29 February 1996 the Chief Inspector of the Construction Supervision (Główny Inspektor Nadzoru Budowlanego), of his own motion, declared the decision of 15 February 1995 null and void.

26.  On 26 July 1996 the Łódź Regional Office (Urząd Wojewódzki), having regard to the latter decision, stayed two sets of proceedings instituted upon the applicant’s appeal against the decisions of 9 August and 17 October 1995. The applicant appealed against these decisions but his appeals were dismissed on 29 and 30 August 1996 respectively.

27.  On 14 November 1996, upon the applicant’s request, proceedings leading to the verification of the validity of the decision of 29 February 1996 were instituted.

28.  It appears that at the same time the applicant repeatedly requested the authorities to intervene with regard to the construction in question and to order a socalled “compulsory demolition” (przymusowa rozbiórka). On 9 December 1996 the Ozorków Municipal Office refused to take any steps in respect of the applicant’s above request.

29.  Apparently, the works were continued at least until 24 May 1997 when the Mayor of Ozorków ordered that they be stayed. The applicant appealed against this decision and requested that a demolition order be issued. On 13 June 1997 the Łódź Governor set aside the decision staying the construction and discontinued the proceedings.

30.  On 28 May 1997, after having reopened the proceedings, the Mayor of Ozorków set aside the building permit issued on 16 October 1992 and discontinued the proceedings in this respect.

31.  On 16 September 1997 the Łódź Governor decided, of his own motion, to resume two sets of appeal proceedings, which had been stayed on 26 July 1996. On 18 September 1997, the Łódź Governor set aside two decisions of the Mayor of Ozorków of 9 August and 17 October 1995. The Łódź Governor discontinued the proceedings in these two cases.

32.  On 22 October 1997 the Mayor of Ozorków issued a building permit authorising J.C. to continue the construction of the outhouse and the garage.

33.  On 25 October 1997 the Mayor authorised J.C. to use the adjacent dwelling.

34.  On 26 January 1998 the Łódź Governor rejected the applicant’s appeal against both decisions of the Mayor. The applicant filed two further appeals with the Supreme Administrative Court against the decisions of the Governor.

35.  On 18 May 2001 the Supreme Administrative Court set aside the decision of the Łódź Governor and the earlier decision of the Mayor of Ozorków of 22 October 1997. The case was remitted to the Mayor of Ozorków.

36.  It appears that the proceedings are pending.

B.  Proceedings concerning the demolition order.

37.  Z.W. and F.W. built a house under a building permit issued on an unspecified date before 1990. Apparently, they also built an outhouse (budynek gospodarczy), adjoining the applicant’s dwelling house. On 7 March 1990 the Mayor of Ozorków ordered that the outhouse be demolished.

38.  On 6 December 1990 the Mayor of Ozorków decided to reopen the proceedings relating to the demolition order and altered the decision of 7 March 1990. He authorised Z.W. and F.W. to use the outhouse.

39.  On 6 March 1991, upon the applicant’s appeal, the Łódź Governor quashed the contested decision and discontinued the proceedings. On the same date the Łódź Governor quashed the demolition order of 7 March 1990 and remitted the case to the first-instance organ.

40.  On 17 January 1992 the Mayor of Ozorków granted Z.W. and F.W. a permit to use the outhouse and the garage.

41.  On 17 March 1992, upon the applicant’s appeal, the Łódź Governor quashed the contested decision and referred the case to the Zgierz District Office (Urząd Rejonowy).

42.  On 28 April 1992 the Zgierz District Office ordered that the outhouse and the garage be demolished by 30 September 1992.

43.  On 29 June 1992, upon an appeal filed by Z.W. and F.W., the Łódź Governor upheld the demolition order.

44.  Since Z.W. and F.W. had not complied with the order, enforcement proceedings were instituted by the Zgierz District Office on 29 December 1992. On the same date the Zgierz District Office imposed a fine on Z.W and F.W. for non-compliance with the order. The Łódź Governor dismissed their appeal against this decision on 30 March 1993.

45.  On 16 April 1993 the Zgierz District Office again imposed a fine on Z.W and F.W. Their appeal against this decision was dismissed by the Łódź Governor on 12 July 1993.

46.  On 14 July 1993, upon Z.W.’s and F.W.’s request, the Łódź Governor reopened the proceedings concerning the construction of the outhouse and the garage and referred the case to the Mayor of Ozorków.

47.  On 16 July 1993 the Mayor of Ozorków issued a decision authorising Z.W. and F.W. to use the outhouse as a dwelling. The applicant appealed against this decision.

48.  On an unspecified date, upon Z.W.’s and F.W.’s requests, the Zgierz District Office instituted proceedings concerning the discontinuation of the enforcement proceedings instituted under the demolition order of 28 April 1992. On 27 August 1993 these proceedings were stayed since the legality of the permit of 16 July 1993 had in the meantime been called in question by the Ozorków Municipal Office (of its own motion).

49.  On an unspecified date the applicant lodged a complaint with the Supreme Administrative Court, alleging inactivity on the part of the Łódź Governor. The complaint was rejected on 3 October 1994.

50.  On 4 October 1993 the Łódź Governor, acting of his own motion, declared the permit of 16 July 1993 null and void.

51.  On 1 March 1995 the Chief Inspector of the Construction Supervision quashed the decision of the Łódź Governor of 4 October 1993 and discontinued the proceedings. The Chief Inspector found that since the applicant had appealed against the decision of 16 July 1993, his appeal should have been examined. On 9 June 1995 the Łódź Governor set aside the contested decision and discontinued the proceedings.

52.  On 26 June 1995 Z.W. requested the Chief Inspector of the Construction Supervision to declare the demolition order null and void. On 25 November 1995 her request was dismissed. Z.W. appealed but on 6 February 1996 the Chief Inspector upheld his decision.

53.  Later, Z.W. filed a further appeal with the Supreme Administrative Court. On 30 December 1997 her appeal was dismissed.

54.  On an unspecified date the applicant requested the Zgierz District Office to enforce the demolition order. On 30 April 1998 the District Office informed him that his request could not be dealt with within a statutory time-limit of one month as the explanatory proceedings had to be carried out; however, the request would be dealt with by 30 May 1998.

55.  On 7 May 1998 the Zgierz District Office imposed yet another fine on Z.W. and F.W. for non-compliance with the demolition order. On 22 October 1998 the Łódź Governor upheld the decision of 7 May 1998.

56.  On an unspecified date in 1998 the applicant lodged a complaint with the Supreme Administrative Court, alleging inactivity on the part of the Head of the Zgierz District Office (Kierownik Urzędu Rejonowego) in enforcing the demolition order.

57.  On 17 November 1999 the Zgierz Local Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego) issued a writ of enforcement (tytuł wykonawczy) against Z.W. and F.W. It also imposed a fine on them.

58.  On 23 February 2000 the Supreme Administrative Court dismissed the applicant’s complaint about the inactivity of the Zgierz District Office in enforcing the demolition order. It found that the enforcement proceedings had lasted unjustifiably long and that they should be completed as soon as possible. However, the Supreme Administrative Court considered that the inactivity of the respondent authority was not established and that the District Office had recently taken decisions aimed at enforcement of the demolition order which could lead to its actual execution in the nearest future.

59.  It appears that the proceedings are still pending.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

60.  The applicant complained that in both sets of the proceedings in which he had been involved the competent authorities had not respected his right to a “hearing within a reasonable time” and alleged a breach of Article 6 § 1 which, in its relevant part, reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

61.  The Government contested this view.

A.  The Court’s case-law

62.  The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see, for instance, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; and Humen v. Poland [GC], no. 26614/95, § 60, 15 October 1999, unreported).

B.  Proceedings concerning the building permit

1.  Period to be taken into consideration

63.  The proceedings started on 4 July 1989, when the Mayor of Ozorków issued a planning permission. However, the period to be taken into consideration began not on that date, but on 1 May 1993, when the declaration whereby Poland recognised the right of individual petition for the purposes of former Article 25 of the Convention took effect. The proceedings are apparently still pending. The total length of the applicant’s case at the date of the adoption of this judgment accordingly amounts to 13 and a half years, of which the period of over 9 years and 8 months falls within the Court’s jurisdiction ratione temporis.

64.  The Court notes that in order to assess the reasonableness of the length of time in question, regard must be had to the stage reached in the proceedings on 1 May 1993 (see, among other authorities, Humen v. Poland cited above, §§ 58-59).

2.  The arguments of the parties

65.  The Government did not comment on the compliance of the length of proceedings with the “reasonable time” requirement.

66.  The applicant contended that the length of the proceedings at issue was in breach of Article 6 § 1 of the Convention.

3.  The Court’s assessment

67.  The Court observes that the applicant’s case was certainly of more than average complexity. That, however, cannot justify the total, significant length of the proceedings.

68.  The Court finds no evidence to demonstrate that at any subsequent stage of the proceedings the applicant showed dilatory conduct or otherwise disrupted the proper conduct of the trial. In view of that, the Court considers that his conduct did not contribute to the length of the proceedings.

69.  The Court notes that since 1 May 1993, when Poland recognised the right of individual petition, there were periods of lack of progress in the proceedings. In particular, the Court underlines that the number of decisions concerning the legality of the building permit of 16 October 1992 demonstrates that the authorities did not act with due diligence (see paragraphs 11-18 above). Furthermore, the Court observes that there were periods of inactivity in the proceedings before the Supreme Administrative Court, following the applicant’s appeals against the Governor’s decisions of 26 January 1998. In the first set of these proceedings, after a delay of three years and a half, the Supreme Administrative Court gave judgment on 18 May 2001 and remitted the case to the Mayor of Ozorków. The second set of the proceedings seems to be pending before the Supreme Administrative Court. The lack of progress in the trial resulted in a delay of almost five years (see paragraphs 34 and 35 above). As no explanation has been provided for these periods of inactivity the delays have to be attributed to the national authorities.

70.  Having regard to the circumstances of the case and taking into account the overall duration of the proceedings, the Court finds that the “reasonable time” requirement laid down in Article 6 § 1 of the Convention was not complied in the present case. There has therefore been a violation of that provision.

C.  Proceedings concerning the demolition order

1.  Period to be taken into consideration

71.  The proceedings started on 7 March 1990, when the Mayor of Ozorków issued the first demolition order. However, the period to be taken into consideration began not on that date, but on 1 May 1993, when the declaration whereby Poland recognised the right of individual petition for the purposes of former Article 25 of the Convention took effect. The proceedings are apparently still pending. The total length of the proceedings in the applicant’s case at the date of the adoption of this judgment accordingly amounts to over 12 years and 10 months, of which the period of over 9 years and 8 months falls within the Court’s jurisdiction ratione temporis.

72.  The Court notes that in order to assess the reasonableness of the length of time in question, regard must be had to the stage reached in the proceedings on 1 May 1993 (see, among other authorities, Humen v. Poland cited above, §§ 58-59).

2.  The Arguments of the parties

73.  The Government did not comment on the compliance of the length of proceedings with the “reasonable time” requirement.

74.  The applicant contended that the length of the proceedings at issue was in breach of Article 6 § 1 of the Convention.

3.  The Court’s assessment

75.  The Court considers that the case is not of particular complexity. It does not find any indication that the applicant’s conduct caused any discernible delays in the proceedings. However, the Court notes that certain delays are attributable to the applicant’s neighbours. It observes that they lodged several appeals against the decisions imposing fines on them for non-compliance with the demolition order (see paragraphs 44-45 and 55 above).

76.  The Court also observes that there was a period of inactivity of one year and a half following the ex officio decision of the Łódź Governor of 4 October 1993 which was quashed on 1 March 1995 by the Chief Inspector of the Construction Supervision. In addition, the Court notes that the Supreme Administrative Court in its judgment of 23 February 2000 considered that the enforcement proceedings had lasted unduly long (see paragraph 58 above). Finally, the Court observes that as the case file stands today it appears that the demolition order issued on 28 April 1992 has not been yet enforced.

77.  Having regard to the circumstances of the case and taking into account the overall duration of the proceedings, the Court finds that the “reasonable time” requirement laid down in Article 6 § 1of the Convention was not complied in the present case. There has therefore been a violation of that provision.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

78.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

79.  The applicant did not claim any pecuniary damage. However, under the head of non-pecuniary damage, he asked the Court to award him PLN 100,000 [approximately EUR 25,000].

80.  The Government considered that the amount claimed was inordinately excessive.

81.  The Court accepts that the applicant has certainly suffered non-pecuniary damage, such as distress and frustration resulting from the undue prolongation of his cases. Making its assessment on equitable basis, the Court awards the applicant EUR 8,000 under this head.

B.  Costs and expenses

82.  The applicant, who received legal aid from the Council of Europe in connection with the presentation of his case, sought reimbursement of 1,500 US dollars for costs and expenses incurred in the proceedings before the Court.

83.  The Government maintained that this claim was excessive.

84.  The Court has assessed the claim in the light of the criteria laid down in its caselaw (see Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II; Baranowski v. Poland, no. 28358/95, § 85, ECHR 2000-III; and Kudła v. Poland [GC], no. 30210/96, § 168, ECHR 2000-XII).

Applying the said criteria to the present case and making its assessment on an equitable basis, the Court considers it reasonable to award the applicant EUR 1,500 for his costs together with any value-added tax that may be chargeable, less the EUR 630 received by way of legal aid from the Council of Europe.

C.  Default interest

85.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points (see Christine Goodwin v. the United Kingdom [GC], no. 28957/97, § 124, to be published in ECHR 2002...).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Holds that there has been a violation of Article 6 § 1 of the Convention on the account of the excessive length of the proceedings concerning the building permit;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention on the account of the excessive length of the proceedings concerning the demolition order;

3.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 February 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.