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FOURTH
SECTION
CASE OF KARASIŃSKA v. POLAND
(Application
no. 13771/02)
JUDGMENT
STRASBOURG
6
October 2009
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 Karasińska v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and
Fatoş Aracı,
Deputy
Section Registrar,
Having
deliberated in private on 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 13771/02) 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, Mrs Hanna
Karasińska (“the applicant”), on 17 September
2001.
- The
applicant was represented by Mr T. Grzybkowski, a lawyer practising
in Poznań. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- On
2 December 2008 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Poznań.
A. Administrative proceedings for a demolition order
- The
applicant lives in a rented flat in a house in Poznań.
- In
1995 a certain M.W. converted an attic above the applicant's flat
into a flat and, without the required permit, moved in. She failed to
carry out the necessary soundproofing work and, as a result, the
applicant could be heard from her flat and is disturbed by noise
coming from the flat above her.
- In
1995 the applicant instituted administrative proceedings. She sought
a demolition order in relation to the unauthorised flat.
- On
28 June 1998 the mayor of Poznań gave a decision ordering the
compulsory demolition “of the constituent elements of the flat”
and imposing on the co-owners of the building an obligation to
restore the attic to its former condition (przywrócenie
stanu poprzedniego).
- On
an unspecified date the co-owners of the building and M.W. appealed
against that decision.
- On
24 September 1998 the Poznań Governor (Wojewoda Poznański)
quashed part of the challenged decision in so far as it imposed
obligations on the co-owners of the building and upheld the remainder
of the decision.
- On
an unspecified date M.W. lodged a complaint with the Supreme
Administrative Court. She requested that both decisions be declared
null and void.
- On
25 May 1999 the Supreme Administrative Court (Naczelny Sąd
Administracyjny) gave judgment and, for procedural
reasons, quashed part of the challenged decision in so far as it had
set aside the first-instance decision. The court dismissed the
remainder of the complaint, with the result that the co owners
of the house became obliged to carry out the demolition and to
restore the attic to its previous condition.
B. Enforcement proceedings and the applicant's attempts
to accelerate them
- The
obligations arising from the final judgment of the Supreme
Administrative Court were not performed by the co-owners.
- In
November 1998 the administrative enforcement authority, namely the
Poznań Local Inspector of Construction Supervision (Powiatowy
Inspektor Nadzoru Budowlanego), sent a reminder to the co-owners
to perform their obligations imposed by the final and enforceable
decision of the Poznań Governor. The reminder remained
ineffective.
- In
September 1999 another reminder, also ineffective, was sent to the
debtors.
- On
12 October 1999 the Poznań Local Inspector of Construction
Supervision imposed a fine on the co-owners for non-performance of
their obligations (grzywna w celu przymuszenia). The
fine was subsequently enforced but, as the co-owners had appealed
against the decision imposing the fine and the Supreme Administrative
Court quashed it, the amount paid had to be returned to the debtors.
- On 18 August 2000 the applicant's lawyer complained of
the inactivity of the administrative authorities to the Regional
Inspector of Construction Supervision. He relied on the newly amended
section 54(2) of the 1966 Administrative Enforcement Proceedings Act
(ustawa o postępowaniu egzekucyjnym w administracji),
which allowed creditors to lodge complaints about the excessive
length of administrative enforcement proceedings. It appears that the
applicant's lawyer's complaint remained ineffective.
- On
21 March 2002, relying on the same ground as previously, the
applicant's lawyer again complained about the excessive length of the
administrative enforcement proceedings to the Regional Inspector of
Construction Supervision.
- On
30 April 2002 the Regional Inspector of Construction Supervision
dismissed the complaint, finding that the enforcement proceedings had
been carried out properly and without undue delay. The Regional
Inspector mentioned the Supreme Administrative Court's judgment,
according to which the “necessity of enforcing the demolition
order cannot lead to the carrying out of unlawful activities”.
- On
7 March 2003 the applicant's lawyer lodged a further complaint about
the excessive length of the administrative enforcement proceedings
with the Regional Inspector of Construction Supervision.
- This
complaint was not examined within the statutory time-limit.
Therefore, on 6 May 2003, the applicant lodged an appeal with the
Chief Inspector of Construction Supervision, complaining that the
administrative case had not been examined within the prescribed
time-limit.
- On
21 May 2003 the Chief Inspector of Construction Supervision ordered
the Regional Inspector to examine the complaint.
- On
22 May 2003 the Regional Inspector of Construction Supervision
dismissed the complaint.
- On
2 June 2003 the applicant appealed against that decision.
- On
9 July 2003 the Chief Inspector of Construction Supervision upheld
the decision.
- On
4 August 2003 the applicant lodged a complaint against that decision
with the Supreme Administrative Court.
- Following
the reform of the administrative courts in Poland, the complaint was
transferred to the Warsaw Regional Administrative Court (Wojewódzki
Sąd Administracyjny).
- On
28 January 2005 the Warsaw Regional Administrative Court gave
judgment and dismissed the complaint. The court found that the
decisions of the administrative authorities at first and second
instance dismissing the applicant's complaint about the excessive
length of the enforcement proceedings had been given in accordance
with the relevant provisions. It further found that the
administrative authorities had conducted the proceedings “without
undue delay” and that the enforcement could not be performed
because M.W. still lived in the flat in question and had refused to
leave it. Therefore, the persons responsible for enforcement of the
final decision had to institute civil proceedings for termination of
the lease agreement with M.W. and the proceedings were still pending,
which constituted an objective obstacle to enforcement.
- Irrespective
of the official complaints about the excessive length of the
enforcement proceedings lodged in accordance with the 1966
Administrative Enforcement Proceedings Act, the applicant sent
reminders and letters to the administrative authorities, urging them
to act (letters of 13 March 2003, 30 May 2003 and
17 November 2003). These letters, however, remained unanswered.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. As regards the excessive length of administrative
enforcement proceedings
- Section
54(2) of the 1966 Administrative Enforcement Proceedings Act (ustawa
o postępowaniu egzekucyjnym w administracji) provides, in
its relevant part, that a complaint about the excessive length of
enforcement proceedings may also be lodged by a creditor who is not
the administrative authority responsible for conducting the
enforcement proceedings.
B. As regards demolition orders
- Section
48(1) of the Construction Act of 7 July 1994 (Prawo
budowlane), as applicable at the material time, provided, in so
far as relevant, as follows:
“The relevant authority shall order that a
building or part of a building be demolished if it is under
construction or has been constructed without an appropriate permit or
notification thereof, or contrary to the building permit...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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
overall period of the administrative and enforcement proceedings to
be taken into consideration began on an unspecified date in August
1995 and has not yet ended. It has thus lasted almost 14 years to
date.
A. Admissibility
- The
Government submitted that the applicant had not exhausted the
remedies available under Polish law in respect of the excessive
length of administrative proceedings. They argued that the applicant
had the possibility of lodging with the Polish civil courts a claim
for compensation for damage caused by the excessive length of the
administrative proceedings under Article 417 of the Civil Code.
- The
applicant did not comment on those arguments.
- The
Court first notes that it has already examined whether after
18 December 2001 a compensation claim in tort as provided for by
Polish civil law was an effective remedy in respect of complaints
about the length of proceedings. It held that no persuasive arguments
had been adduced to show that Article 417 of the Civil Code could at
that time be relied on for the purpose of seeking compensation for
the excessive length of proceedings or that such an action offered
reasonable prospects of success (see Małasiewicz v. Poland,
no. 22072/02, §§ 32-34, 14 October 2003, and, for
administrative proceedings, Boszko v. Poland,
no. 4054/03, § 35, 5 December 2006). The Court
sees no grounds on which to depart from those findings in the present
case.
- Secondly,
the Court notes that the applicant lodged several complaints about
the inactivity of the Local Inspector of Construction Supervision in
accordance with the domestic law (see paragraphs 17, 18 and 20,
above). The complaint of 7 March 2003 was dismissed by the Regional
Inspector of Construction Supervision and, subsequently, following
the applicant's appeal, it was dismissed by the Warsaw Regional
Administrative Court on 28 January 2005. This remedy was designed to
accelerate the administrative enforcement proceedings (see, Relevant
domestic law, paragraph 30, above). The Court also notes that the
proceedings concerning the alleged inactivity on the part of the
administrative authorities lasted a considerable amount of time,
having been pending solely before the Regional Administrative Court
from 4 August 2003 until 28 January 2005, that is, for about 17
months.
- The
Court concludes that, having exhausted the available remedies
provided by domestic law, particularly with a view to accelerating
the administrative enforcement proceedings, the applicant was not
required to embark on another attempt to obtain redress by bringing a
civil action for compensation. Accordingly, for the purposes of
Article 35 § 1 of the Convention, the applicant has
exhausted domestic remedies. For these reasons, 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 considers that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
- The
Government submitted that the proceedings in the present case had
been particularly complex. They relied on the fact that, in order to
enforce the final judgment of the Supreme Administrative Court of
25 May 1999, the co-owners of the building in which the
applicant lived were obliged to obtain a civil judgment ordering the
eviction of the applicant's neighbour. The relevant judgment was
finally given by the Poznań District Court on 22 May 2003;
however, its enforcement was made dependent on providing the
applicant's neighbour with an alternative dwelling. The Government
further submitted that the proceedings in the applicant's case had
not concerned issues of employment or pensions; thus, no special
diligence had been required. As regards the conduct of the
authorities, the Government submitted that they had taken the
necessary steps to clarify all the circumstances of the case and had
not contributed to the overall length of the proceedings.
- The
applicant's lawyer did not comment on the Government's arguments.
- 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).
- The
Court admits that the case was of a certain complexity and that the
domestic authorities, especially at the early stage of the
proceedings, made some efforts to enforce the Supreme Administrative
Court's final judgment (see paragraphs 14-16, above). However, the
Court considers that the complexity of the case and the fact that it
did not concern an issue in which special diligence is required
cannot justify the overall length of proceedings which have already
lasted almost 14 years. Even taking into account the objective
obstacles relied on by the Government, that period must be in any
event considered excessive.
- Having
examined all the material submitted to it and taking into account all
the arguments put forward by the Government, the Court considers that
in the instant case the length of the proceedings failed to meet the
“reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicant complained that the neighbour who had
converted the attic above her flat into another flat had failed to
carry out the necessary soundproofing work and that she had therefore
been disturbed by the noise coming from the flat above her. She
relied on Article 8 of the Convention, which, in
so far as relevant, reads as follows:
“1. Everyone has
the right to respect for his private and family life, [and] his
home...
2. There shall be no
interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a
democratic society in the interests of ... public safety or the
economic well-being of the country, ..., for the protection of health
..., or for the protection of the rights and freedoms of others.”
- To
the extent that this complaint raises under Article 8 a separate
issue from that examined above under Article 6 § 1 of the
Convention, the Court notes that the applicant did not institute any
proceedings which would have allowed the domestic courts to assess
the level of the alleged interference with the applicant's right to
respect for her home and private life.
- Having
examined all the material submitted to it, the Court considers that
this part of the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
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 15,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis and having regard to complexity
of the case and some objective obstacles which prevented the
authorities from enforcing the final judgment, it awards her
EUR 9,000 under that head.
B. Costs and expenses
- The
applicant's lawyer did not make any claim for the costs and expenses
involved in the proceedings.
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 9,000 (nine
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable to be converted into the currency of the respondent
State 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 amount 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 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
