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FOURTH
SECTION
CASE OF PRZEPAŁKOWSKI v. POLAND
(Application
no. 23759/02)
JUDGMENT
STRASBOURG
22 July
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Przepałkowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Giovanni Bonello, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Ledi
Bianku,
Mihai Poalelungi, judges,
and
Fatoş Aracı,
Deputy
Section Registrar,
Having
deliberated in private on 1 July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 23759/02) against the
Republic of Poland 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, Mr Bogumił
Przepałkowski (“the applicant”), on 10 June 2002.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
6 December 2007 the
President of the Fourth Section decided to give notice of the
application to the Government. Applying Article 29 § 3 of the
Convention, it was decided to rule on the admissibility and merits of
the application at the same time.
- Having
regard to the nature of the case and to the applicant's age, the case
was granted priority under Rule 41 of the Rules of Court.
- The
Government submitted their observations after the expiry of the
prescribed time-limit. On 25 March 2008 they were informed that,
pursuant to Rule 38 § 1 of the Rules of Court, the President of
the Chamber had decided that the Government's observations should not
be included in the case file for consideration by the Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1923 and lives in Warsaw.
- He
is the owner of a plot of land in Legionowo. Apparently, since 1990
construction works without the required permit have been carried out
by the applicant's neighbour, B.G., on his plot of land which adjoins
the applicant's property.
- On
9 December 1993 B.G. requested the Mayor of Legionowo (Urząd
Miejski w Legionowie) to grant him a building permit for a garage
to be used for repairing lorries.
- The
Mayor of Legionowo found that the garage adjoining the applicant's
property had already been constructed without the required building
permit and on 3 February 1994 ordered its demolition (przymusowa
rozbiórka).
- On
14 February 1994 B.G. lodged an appeal, submitting that he had
already been granted a building permit which had subsequently been
quashed.
- On
29 June 1994 the Warsaw Regional Office (Urząd Wojewódzki)
upheld the challenged decision.
- On
18 July 1994 B.G. lodged an appeal with the Supreme Administrative
Court (Naczelny Sąd Administracyjny).
- On
22 September 1994 the Supreme Administrative Court ordered that
enforcement of the Warsaw Regional Office's decision be stayed
pending the examination of B.G.'s appeal.
- On
8 February 1995 the applicant, as a party to the administrative
proceedings, requested the Supreme Administrative Court to dismiss
the appeal and to uphold the challenged decision.
- On
22 January 1996 the Supreme Administrative Court quashed the
contested decision and the previous decision of 3 February 1994 and
the proceedings were restarted. The court found that the
administrative organs had not exhaustively examined all the
circumstances of the case, in particular whether the construction in
question constituted a danger to persons or property or whether it
had a deleterious effect on the sanitary or other conditions of the
surroundings.
- On
10 February 1999 the Mayor of Legionowo (Prezydent Miasta
Legionowa) imposed on B.G. an obligation to acquire a building
permit by 30 June 1999.
- On
25 February 1999 the applicant appealed against that decision and
requested the Mazowsze Governor (Wojewoda Mazowiecki) to issue
a demolition order.
- On
23 August 1999 the Mazowsze Governor quashed the contested decision
and remitted the case.
- On
14 September 1999, following amendments to the provisions governing
the powers of the administrative authorities, the President of
Legionowo transferred the case to the Legionowo Local Inspector of
Construction Supervision (Powiatowy Inspektor Nadzoru
Budowlanego).
- On
26 May 2000 the Legionowo Local Inspector of Construction Supervision
gave a decision ordering demolition of the garage, finding that it
had been constructed illegally and contrary to the local zoning plan
(plan zagospodarowania przestrzennego).
- On
12 June 2000 B.G. appealed against that decision.
- On
20 January 2001 the applicant complained to the Chief Inspector of
Construction Supervision (Główny Inspektor Nadzoru
Budowlanego) of inactivity on the part of the administration. He
referred to his appeal of 12 June 2000 lodged against the
decision of the Legionowo Local Inspector of Construction Supervision
of 26 May 2000 and requested the acceleration of the proceedings.
- On
3 April 2001 the applicant again complained to the Chief Inspector of
Construction Supervision of inactivity on the part of the
administration. He referred to his previous complaint and stated that
he had been informed that his appeal would be examined in February.
- On
27 April 2001 the Chief Inspector of Construction Supervision,
finding the applicant's complaint of inactivity well-founded, set a
time-limit of 14 days for the Mazowsze Regional Inspector of
Construction Supervision (Wojewódzki Inspektor Nadzoru
Budowlanego) to examine the applicant's appeal.
- On
29 May 2001 the Mazowsze Regional Inspector of Construction
Supervision quashed the contested decision and remitted the case to
the first-instance authority.
- On
2 January 2002 the Legionowo Local Inspector of Construction
Supervision, as the authority of first instance, ordered B.G. to
carry out works to bring the construction in line with the relevant
provisions.
- On
17 January 2002 the applicant appealed against that decision and
requested a demolition order.
- On
28 February 2003 the Mazowsze Regional Inspector of Construction
Supervision upheld the challenged decision.
- On
2 April 2003 the applicant appealed against that decision to the
Warsaw Regional Administrative Court (Wojewódzki Sąd
Administracyjny).
- On
11 October 2004 the Warsaw Regional Administrative Court quashed the
challenged decision and the previous decision of the Legionowo Local
Inspector of Construction Supervision.
- On
12 September 2005 the Legionowo Local Inspector of Construction
Supervision again ordered B.G. to carry out construction works within
three months of the date of the decision and to obtain a building
permit.
- On
27 September 2005 the applicant appealed.
- On
16 January 2006 the Mazowsze Regional Inspector of Construction
Supervision upheld the contested decision.
- On
15 February 2006 the applicant lodged an appeal with the Warsaw
Regional Administrative Court, submitting that the construction works
had been carried out illegally and demanding that a demolition order
be issued.
- On
10 July 2006 the Warsaw Regional Administrative Court dismissed the
applicant's appeal.
- It
appears that the applicant did not lodge a cassation appeal with the
Supreme Administrative Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Administrative proceedings and demolition orders
37. Section 28
of the Code of Administrative Procedure provides:
“Everyone whose legal interests or obligations are
involved in [administrative] proceedings, or who requests that
[certain] steps be taken by [an administrative] authority with regard
to his legal interests or obligations, is a party to the
proceedings.”
Section
37(1) of the 1974 Construction Act, in force at the relevant time,
provided, in so far as relevant:
“Buildings or parts of buildings, which are being
or have been erected in violation of the laws in force at the time of
their erection, are subject to compulsory demolition ... if the
administrative authority establishes that the building or relevant
part:
1) ...
2) constitutes a danger ... to persons or
property, or has an inadmissibly deleterious effect on the sanitary
or functional conditions of the surroundings. ...”
B. Inactivity on the part of the administrative
authorities
- The
relevant domestic law concerning inactivity on the part of
administrative authorities is set out in Grabiński v. Poland,
no. 43702/02, §§ 60-65, 17 October 2006.
C. Remedy against the excessive length of judicial
proceedings
- The
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings, in particular the
applicable provisions of the 2004 Act, are stated in the Court's
decisions in the cases of Charzyński v. Poland no.
15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v.
Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in
the case of Krasuski v. Poland, no. 61444/00, §§
34-46, ECHR 2005-V.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE
ADMINISTRATIVE PROCEEDINGS
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down 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...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 9 December 1993 and
ended on 10 July 2006. It thus lasted 12 years, 7 months and 3 days.
A. Admissibility
-
In their comments on the applicant's just-satisfaction claims, the
Government submitted that the applicant had not exhausted domestic
remedies since he had not availed himself of the 2004 Act.
- The
Court notes that the 2004 Act provides for a complaint about the
unreasonable length of judicial proceedings and that proceedings
before administrative authorities are not covered by its provisions.
It further observes that the proceedings complained of lasted 12
years, 7 months and 3 days, out of which, after the entry into
force of the 2004 Act, the proceedings were conducted by the Regional
Administrative Court for 6 months only (from 17 September 2004
until 11 October 2004 and from 15 February 2006 until 10 July
2006, see §§ 29-30 and 34-35 above). Therefore, a domestic
court dealing with a complaint under the 2004 Act would not be able
to take into account the whole period of the administrative
proceedings and find a violation of the applicant's right to a trial
within a reasonable time. It follows that in the present case a
complaint under the 2004 Act cannot be regarded as an effective
remedy with a sufficient degree of certainty and that the
Government's plea of inadmissibility on the ground of non exhaustion
of domestic remedies must be dismissed.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It also
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government's observations were submitted after the expiry of the
prescribed time-limit. The President of the Chamber therefore decided
that they should not be included in the case file for consideration
by the Court (see paragraph 5 above). In their comments on the
applicant's Article 41 claims, they pointed to the complexity of the
domestic proceedings and the applicant's own contribution to their
length.
- The
applicant submitted that the “reasonable time”
requirement laid down in Article 6 § 1 had not been complied
with, referring to the long periods of unexplained inactivity on the
part of the administrative authorities.
2. The Court's assessment
- 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 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; Beller v. Poland, no.
51837/99, §§ 68-70, 1 February 2005).
- The
Court observes that the case involved a certain degree of complexity.
However, it considers that this in itself cannot justify the overall
length of the proceedings.
- As
regards the conduct of the applicant, the Court, having regard to the
available evidence, does not find it established that the applicant
substantially contributed to the delays in the proceedings. The Court
acknowledges that the applicant lodged several appeals in the course
of the impugned proceedings. However, following his appeals, the
decisions given were several times quashed by the higher
administrative authorities or by the courts and the case was remitted
for further examination.
- As
regards the conduct of the relevant authorities, the Court notes that
there were frequent periods of inactivity. By way of example, the
Court observes that there was a period of almost 3 years of
inactivity between 22 January 1996 when the Supreme
Administrative Court quashed previous decisions and 10 February
1999, when the President of Legionowo imposed on the applicant's
neighbour an obligation to obtain a building permit. Subsequently,
there was a period of six months of inactivity between 25 February
1999 when the applicant appealed against the decision of the
President of Legionowo and 23 August 1999 when the Mazowsze Governor
quashed the challenged decision and remitted the case. The Court
observes that there were other unexplained periods of inactivity in
the subsequent proceedings, such as a period of twelve months between
26 May 2000 when the Legionowo Local Inspector of Construction
Supervision made a demolition order and 29 May 2001 when
the Mazowsze Regional Inspector of Construction Supervision quashed
that decision and remitted the case.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant's case was not heard within a reasonable
time. There has accordingly been a breach of Article 6 § 1.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 1 of Protocol No. 1 to the
Convention, that the construction on a plot of land adjoining his
property had reduced its value and limited his right to the peaceful
enjoyment of his possessions. The Court observes, however, that the
applicant did not lodge a cassation appeal against the judgment of
the Warsaw Regional Administrative Court of 10 July 2006.
- Accordingly,
this complaint must be rejected under Article 35 §§ 1 and 4
for failure to exhaust domestic remedies.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 20,000 euros (EUR) in respect of pecuniary damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have suffered non-pecuniary
damage, such as distress and frustration on account of the protracted
length of the proceedings, which cannot be sufficiently compensated
by the above finding of a violation. Taking into account the
circumstances of the case and making its assessment on an equitable
basis, the Court awards the applicant the overall sum of 10,000 euros
(“EUR”) under that head.
B. Costs and expenses
- The
applicant also claimed 500 Polish zlotys (PLN) for the costs and
expenses incurred before the domestic administrative authorities and
courts.
-
The Government contested the claim.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as 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 the applicant, who was not
represented by a lawyer, the sum of EUR 150 under this
head.
C. Default interest
- 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
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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, EUR 10,000 (ten
thousand euros) in respect of non-pecuniary damage and EUR 150 (one
hundred and fifty euros) in respect of costs and expenses, to be
converted into Polish zlotys at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Giovanni Bonello
Deputy
Registrar President
