FIRST SECTION
DECISION
Application no. 34169/05
PIETYRA AND SZUBRYT
against Poland
The European Court of Human Rights (First Section), sitting on 12 February 2019 as a Committee composed of:
Ksenija Turković, President,
Krzysztof Wojtyczek,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 17 August 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Stanisław Pietyra and Mr Roman Szubryt, are Polish nationals who live in Międzybrodzie Bialskie. Their application was lodged on 17 August 2005. They were represented before the Court by Mr M. Szwed, a lawyer practising in Warsaw.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background
3. In 1994 the applicants purchased from the Czernichów Municipality a right to perpetual use of a plot of land situated in Międzybrodzie Bialskie and an unfinished commercial building located on that land. They developed a business plan envisaging the extension of the building and the change of its designated use to a hotel and a conference centre.
4. Międzybrodzie Bialskie has a population of over 3,000. The applicants’ property is located in the town centre. It is surrounded by a number of restaurants and bars.
5. In 1997 Multimedia Ltd., a company co-owned and managed by the applicants, acquired a share of the applicants’ property. Subsequently, some renovation and construction works was carried out on the building. In particular, some space was converted into apartments. Mr Szubryt and his family lived in one apartment for a couple of months either in 1997-98 or in 1999. Mr Pietyra moved into another apartment in 1996 and still lives there with his wife.
2. Construction of an open-air concert venue and related administrative proceedings
(a) Construction and proceedings for its retrospective legalisation
6. On 25 February 1998 the mayor of the Czernichów Municipality (wójt gminy) issued a decision (decyzja o warunkach zabudowy) which envisaged a summer open-air concert venue (muszla koncertowa) on the land adjacent to that of the applicants. The concert venue was to replace the pre-existing wood and iron platform (podest) which had served since 1990 as a stage for various cultural and leisure events in the community.
7. The applicants appealed against this decision to the Bielsko-Biała Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze). In September 1998 the applicants’ company concluded a friendly settlement with the local authorities, agreeing to withdraw their appeal in exchange for the authorities’ commitment to respect quiet hours between 10 p.m. and 6 a.m. and to inform the applicants in due time if any concert or similar event were to go on, exceptionally, within those hours. Consequently, on 16 September 1998 the Self‑Government Board of Appeal discontinued the proceedings.
8. Meanwhile, in March 1998 the municipality, together with the local fire-brigade and local population, started to build the open-air concert venue. The work was completed by 1 May 1998. On that date, the facility was opened to the public and the first concert was held there.
9. The distance between the applicants’ building and the facility was approximately 10 m (4 m between the facility and the edge of the applicants’ plot).
10. On 14 August 1998 the mayor of the Żywiec District Office (Starostwo Powiatowe) issued a building permit in respect of the concert venue. On 4 April 2001 the Chief Inspectorate of Construction Supervision (Główny Urząd Nadzoru Budowlanego) quashed that decision, declaring the permit in question null and void for non-conformity with Article 56 of the Code of Administrative Procedure. It was held that the permit was unlawful as it had been given in respect of a building which had already been constructed by the time when the permit had been issued. The decision contained a clause instructing the applicants that a claim for compensation under Article 160 of the Code of Administrative Procedure was hereby open to them.
11. On 31 May 2001 the mayor of the Czernichów Municipality gave another decision on land development and management conditions (decyzja o warunkach zabudowy i zagospodarowania terenu) in respect of the concert venue operating in the summer. The applicants appealed and on 1 August 2001 the Bielsko-Biała Self-Government Board of Appeal quashed that decision and remitted the case, assigning it to another, neutral, municipality.
12. On 1 October 2001 the mayor of the Łodygowice Municipality issued a decision on land development and management conditions in favour of the construction of the concert venue. The applicants appealed. On 5 December 2001 the Bielsko-Biała Self-Government Board of Appeal upheld that decision. On 11 March 2004 the Gliwice Regional Administrative Court (Wojewódzki Sąd Administracyjny) quashed both the first and second-instance decisions on the grounds that they were unlawful. The court observed that that kind of decision could not, under the applicable laws, be issued retrospectively, that is to say after the building work had already been completed. The court further noted that the authorities had failed to properly take into consideration the third parties’ interests, in particular the question of whether the facility would cause excessive noise nuisance to its neighbours.
(b) Proceedings for demolition
13. On 31 December 2001 the Żywiec District Inspectorate of Construction Supervision (Powiatowy Inspektorat Nadzoru Budowlanego) ordered the demolition of the concert venue.
14. On 5 February 2002 this decision was quashed and the case returned to the first-instance authority.
15. On 6 June 2002 the same authority again issued a demolition order. On 30 July 2002 the Silesian Regional Inspectorate of Construction Supervision (Wojewódzki Inspektorat Nadzoru Budowlanego) upheld this order. On 22 April 2004 the Gliwice Regional Administrative Court dismissed the municipality’s appeal against that decision. It found that the construction work had been completed before any proceedings under the relevant construction and building permit laws could be instituted. The building had therefore been unlawfully constructed and the concert venue had to be demolished. On 28 January 2005 the Supreme Administrative Court (Naczelny Sąd Administracyjny) dismissed an appeal on points of law brought by the municipality against this judgment. It upheld the reasoning and conclusions of the first-instance court. It observed that the fact that the concert venue had been built on the authority of the local authority could not justify the failure to observe the applicable laws, if only because public authorities were obliged by Article 7 of the Constitution to act “on the basis and within the confines of law”.
16. On an unspecified date the applicants lodged a complaint in respect of the failure of the administrative authorities to comply with the demolition order.
17. On 15 June 2005 the Katowice Regional Inspectorate of Construction Supervision dismissed the applicants’ complaint. It found that the judgment of the Supreme Administrative Court of 28 January 2005 had been served on the first-instance administrative authority only very shortly before the applicants had brought their complaint concerning the alleged inactivity of the administrative authorities. It could not therefore be said that that authority had failed to act with requisite diligence in respect of the demolition order.
18. On 17 July 2008 the Żywiec District Inspectorate of Construction Supervision decided that the demolition order had lost its binding force (wygaśnięcie). It was observed that the order could not be executed because it had been issued against the municipality, not against the building’s current owner, the fire brigade, which could not be regarded as legal successor to the municipality. On 19 September 2008 the Silesian Regional Inspectorate for Construction Supervision upheld that decision after an appeal by the applicants. On 19 January 2009 the Gliwice Regional Administrative Court rejected another appeal by them on formal grounds. On 20 March 2009 the same court dismissed an appeal on points of law lodged by the applicants.
19. On 12 April 2011 the Chief Inspector of Construction Supervision declared the decisions of 17 July and 19 September 2008 null and void. On 17 June 2011 the Chief Inspectorate of Construction Supervision upheld that decision. It was observed that the obligation to comply with a demolition order passed onto the legal successor of the previous owner of the subject of the order. On 8 December 2011 the Warsaw Regional Administrative Court quashed the latter decisions and remitted the case to the Chief Inspectorate of Construction Supervision. It was observed that the legal succession did not result from the mere adverse possession (zasiedzenie) of the property by the fire brigade. The administrative authority was instructed which elements to take into account when reviewing the case.
20. Ultimately, on 28 October 2015 the Żywiec District Inspectorate of Construction Supervision ordered the demolition of the concert venue in question.
21. The Government submitted that on 10 June 2016, the demolition of the open-air concert was completed.
3. The applicants’ civil actions
(a) Actions for pecuniary damages
(i) First action
22. On 16 March 2000 the applicants lodged an action for compensation against the Czernichów Municipality seeking damages in the amount of 200,000 Polish zlotys (PLN – approximately 50,000 euros (EUR)) for each applicant and PLN 1,600,000 (approximately EUR 400,000) for their company.
23. On 5 November 2002 the Bielsko-Biała Regional Court refused to appoint a legal-aid lawyer to represent the applicants, considering that the proceedings were already well-advanced and that granting legal-aid at this stage would therefore not serve any useful purpose. On 31 January 2003 the Bielsko-Biała Regional Court dismissed a subsequent appeal lodged by the applicants.
24. On 12 August 2003 the applicants asked that experts in construction supervision and medicine be appointed by the court for the purpose of the case. To justify their motion, they stated that the former mayor had been a part in mafia circles; that they had been subjected to “commercial and psychological terror”; and that in March 1998 they had been forced to put their business project on hold because, as they claimed, their business activity would have never been approved in view of the concert venue’s operation. The respondent argued that granting the motion for evidence as sought by the plaintiffs would be unjustified, as it was vague and contained only insults of the local authorities. At its hearing of 16 September 2003, the court dismissed the applicants’ motion. The reasons for that decision have not been recorded in the hearing’s minutes.
25. At least five hearings were held before the first-instance court and at least thirteen witnesses, including the applicants, were heard. The court also obtained administrative records in respect of the applicants’ investment and the construction of the concert venue.
26. On 30 September 2003 the Bielsko-Biała Regional Court dismissed the applicants’ action. It considered that the applicants had failed to show that the respondent had caused any damage to their business in relation to the construction and operation of the open-air concert venue. It was observed, in particular, that the applicants had not shown any causal link between the activities of the municipality and the closure of the applicants’ business. The material obtained in the course of the proceedings indicated, in the court’s view, that the applicants had wound up their business activities for a series of enumerated reasons which were unrelated to the existence of the concert venue in question (theft, non-payment for some merchandise, difficulties with outstanding payments of custom duty and the unstable economic situation of the region). Lastly, the court noted that the applicants had purchased the building and had made business plans in full knowledge that the adjacent land had been, since the early 1990s, used for local events and celebrations, with music and with an operating beer bar.
27. The applicants appealed, among others on the grounds that the first‑instance court had not obtained expert evidence.
28. On 9 December 2003 the applicants applied for legal assistance for the purposes of the appeal proceedings. They referred, inter alia, to the courts’ refusals to call experts in their case. On 17 December 2003 a judge of the Bielsko-Biała Regional Court dismissed their application on the grounds that appointing a legal representative would be futile at that stage of the proceedings. It appears that on 31 August 2004 the Katowice Court of Appeal upheld that decision.
29. On 31 August 2004 the Katowice Court of Appeal (Sąd Apelacyjny) upheld the first-instance judgment in its essence, reiterating that the applicants had not proved that they had suffered any damage as a result of the operation of the unlawfully constructed concert venue. The court also noted that the calculations of the alleged losses presented by the applicants in the course of the proceedings had been divergent. Lastly, the appellate court observed that the applicants had, throughout the first-instance proceedings, been correctly instructed as to the issues of the burden of proof and the possibility of lodging applications for evidence. Their argument that the lower court had failed to establish all the circumstances of the case was therefore, in the appellate court’s view, ill-founded.
30. On 7 January 2005 the Katowice Court of Appeal rejected on formal grounds an appeal on points of law lodged by the applicants.
(ii) Second action
31. On an unspecified date in 2007 the applicants lodged another civil action against the Czernichów Municipality, seeking compensation for their investment losses caused by the construction of the concert venue. On 19 October 2007 the Bielsko-Biała Regional Court rejected this action. On 4 March 2008 the Katowice Court of Appeal dismissed an interlocutory appeal lodged by the applicants. It held that the action, apart from the different amount of compensation sought, was identical to that which had already been examined in the proceedings terminated in 2005.
(iii) Third action
32. On 8 May 2008 the applicants brought a civil action against the Czernichów Municipality, the Żywiec District Office and the fire brigade, seeking compensation and an order to have the concert venue demolished. On 20 June 2008 the Bielsko-Biała Regional Court rejected that action as identical to the cases terminated in 2005 and earlier in 2008.
(b) Action for compensation in respect of non-pecuniary damage
33. On 6 February 2006 the applicants’ company brought an action against the mayor of the Czernichów Municipality, seeking the demolition of the concert venue and payment.
34. On 20 February 2006 the Żywiec District Court rejected that action on formal grounds, specifically that neither the respondent mayor nor the municipality office had legal standing. The court observed that legal standing was granted, under the law, only to a municipality as such.
(c) Action for compensation for nuisance
35. It appears that on 24 May 2011 the applicants brought a civil action for compensation for the disturbance and nuisance caused by the noise of the open-air concert venue owned by the local fire brigade.
36. On 15 May 2012 the Żywiec District Court dismissed this action and the applicants did not pursue with an appeal.
(d) Action for compensation for the authorisation of the concert venue’s construction
37. On 17 October 2011 Mr Pietyra brought a civil action against the Żywiec District Inspectorate of Construction Supervision, seeking compensation for the building permit issued by the Żywiec District Office on 14 August 1998.
38. On 22 November 2012 the Bielsko-Biała Regional Court rejected that action on the grounds that the respondent, under the applicable law, lacked legal standing. After a series of interlocutory appeals and procedural decisions, those proceedings were terminated in a decision of the Katowice Court of Appeal of 26 February 2015, which rejected an appeal by the applicants as lodged out of time.
4. Other relevant information
39. According to the applicants, events organised at the open-air concert venue between 1998 and 2004 and the garden beer bar operating during that time, generated unbearable noise and disturbance over the summer months. The applicants submitted a report of an expert in acoustics according to which the level of noise during a concert organised in August 2000 had been 88.6 dB.
40. In 2004 the concert venue fell into disuse.
41. On 14 July 2006 the fire brigade obtained a judicial decision declaring that they had acquired (as of 1 October 2005), by way of adverse possession, the ownership of the plot of land on which the concert venue was located.
42. On an unspecified date the fire brigade instituted administrative proceedings, seeking to have the construction of the concert venue declared lawful with retrospective effect. The case appears to be ongoing.
B. Relevant domestic law and practice
1. Liability in tort
43. Article 23 of the Civil Code, which entered into force in 1964, contains a non-exhaustive list of so‑called “personal rights” (prawa osobiste). This provision states:
“1. The personal rights of an individual, ... in particular health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, the inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected in civil law, regardless of the protection laid down in other legal provisions.”
44. Article 24 paragraph 1 of the Civil Code provides:
“2. A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of an infringement, [the person concerned] may also require the party responsible for the infringement to take the necessary steps to remove [the infringement’s] consequences ... In compliance with the principles of this Code, [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”
45. Article 144 of the Civil Code provides as follows:
“3. In the exercise of his or her rights, an owner of immovable property shall refrain from actions which would infringe the enjoyment of adjacent immovable property beyond an average degree as defined by the socio-economic purpose of the immovable property and the local conditions.”
46. Pursuant to Article 222 § 2 of the Civil Code:
“4. The owner shall have the right to claim restitution of his or her lawful position and the cessation of infringements of the law against a person who infringes his or her ownership other than by depriving the owner of actual control of the property in question.”
47. There is no limitation period for claims under Article 222 of the Civil Code if they relate to immovable property (Article 223 of the Civil Code).
48. Under Article 415 of the Civil Code, which provides for liability in tort, anyone who through his or her fault causes damage to another is required to repair the damage.
49. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. The relevant part of that provision reads:
“5. The court may grant an adequate sum as pecuniary compensation for non‑pecuniary damage (krzywda) suffered by anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary to remove the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”
50. Furthermore, Article 77 § 1 of the 1997 Polish Constitution (Konstytucja), which entered into force on 17 October 1997, and Article 417 of the Polish Civil Code provide for the State’s liability in tort. The latter provision reads as follows:
“6. The State Treasury, or [as the case may be] a local-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission connected to the exercise of public authority.”
51. Article 4171 § 2 of the Civil Code reads as follows:
“7. Where damage has been caused by the delivery of a final ruling or a final decision, redress for such damage may be sought after the unlawfulness [of the ruling or decision] has been established in relevant proceedings, except where otherwise provided by law.”
52. Article 4172 of the Civil Code provides the following:
“8. If any damage has been caused to a person through the lawful exercise of public authority, the victim can claim full or partial redress and compensation, provided that the circumstances, in particular the victim’s being unfit for work or his or her difficult financial situation, call for [a ruling on] an equitable basis.”
53. Article 445 § 1 of the Civil Code, applicable in the event a person suffers a physical injury or health disorder as a result of an unlawful act or omission of a State agent, reads as follows:
“9. ... The court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered.”
54. On 23 February 2001 the Supreme Court ruled in a case concerning the noise nuisance stemming from the traffic on a high-speed road managed by a municipality (II CKN 394/00). The court held firstly that the obligations of local government in the context of protecting the environment came directly from the Protection and Shaping of the Environment Act of 31 January 1980 (Ustawa o ochronie i kształtowaniu środowiska), which was repealed on 26 October 2001. Those provisions, in conjunction with the relevant civil-law provisions, therefore formed a sufficient basis for claims of a civil nature. Secondly, local government’s tolerance of noise levels which exceeded the national norms was unlawful and could constitute an infringement of personal rights. Moreover, seeking the removal of the consequences of the infringement of those rights, by means of constructing anti-noise screens, fell within the scope of Article 24 § 1 of the Civil Code.
2. Annulment of final administrative decision and related compensation claims under the Code of Administrative Procedure
55. Article 156 § 1 of the Code of Administrative Procedure (Kodeks postępowania administracyjnego), which sets out grounds on which a final administrative decision is subject to annulment, states:
“1. A public administration authority shall declare a decision null and void if:
1) it has been issued in breach of the rules governing competence;
2) it has been issued without a legal basis or in flagrant breach of the law;
3) concerns a case already decided by means of another final decision;
4) it has been addressed to a person who is not a party to the case;
5) it was unenforceable on the date of its issuance and its unenforceability is of a permanent nature;
6) it would give rise to a punishable offence in the event that it has been enforced;
7) it has a flaw making it null and void by the force of law.”
56. Article 160 of this code set out principles for compensation for loss caused by the issuance of an administrative decision subsequently annulled on the grounds listed in Article 156 § 1.
57. This provision was repealed by the 2004 Amendment with effect from 1 September 2004 and replaced by new Article 4171 § 2 of the Civil Code. However, under section 5 of the 2004 Amendment, which sets out transitional rules, Article 160, in the version applicable on the repeal date, still applies to “events and legal situations” that subsisted before the entry into force of the 2004 Amendment. Article 160, in the version applicable on the relevant date, read as follows:
“1. A party who has suffered a loss on account of the issuance of a decision in breach of Article 156 § 1 or on account of annulment of such a decision shall have a claim for compensation for actual damage, unless he or she has culpably caused the circumstances mentioned in this provision.
2. The provisions of the Civil Code, except for Article 418 [provision repealed], shall apply to [such] compensation.
3. Compensation is due from an authority that issued a decision in breach of Article 156 § 1, unless the other party to the proceedings concerning the decision culpably caused the circumstances mentioned in this provision; in the latter case a claim for compensation shall be directed against the culpable party.
4. A public authority that has declared a decision null and void or declared, in accordance with Article 158 § 2, that it has been issued contrary to the law shall rule on compensation due from the authority referred to in § 1. A claim for compensation from a person who has culpably caused the circumstances mentioned in Article 156 § 1, shall be pursued before a court of law.
5. A party who is not satisfied with the compensation awarded by a public administration authority referred to in § 4 may lodge a claim with a court of law within thirty days of the date of service of a decision given on that matter.
6. A claim for compensation shall be time-barred three years after [the finalisation of] a decision declaring null and void the decision issued in breach of Article 156 § 1 or decision whereby an authority has declared, pursuant to Article 158 § 2, that the contested decision has been issued in breach of Article 156 § 1.”
58. On 30 March 2011 the Civil Chamber of the Supreme Court, sitting in plenary, gave a resolution (no. III CZP 112/10) on the application of Article 160 of the Code of Administrative Procedure and rules regarding compensation. The resolution was given in response to legal questions submitted by the First President of the Supreme Court in connection with certain problems and divergences arising in judicial practice, in particular in respect of the temporal effects of Article 160 as determined in section 5 of the 2004 Amendment, the application of Article 4171 § 2 of the Civil Code which replaced Article 160 and rules for adjudicating compensation.
59. The resolution contains extensive reasoning which, in so far as relevant, may be summarised as follows: Article 160 §§ 1, 2, 3 and 6 of the Code of Administrative Procedure applies to all claims for damages arising from an issuance of a final administrative decision given before 1 September 2004, which has been declared null and void or has been declared as being issued in breach of Article 156 § 1 of the Code of Administrative Procedure after that date. In contrast, paragraphs 4 and 5 of Article 160, setting out the procedure for vindicating such claims, should be considered to be no longer applicable. Consequently, a party seeking compensation under this provision should lodge an action directly with a civil court.
3. Noise regulations
60. The duty to protect the environment from noise is set out, defined and further regulated in section 112 et al., section 2.2(a), section 3.5 and section 3.26(a) of the Act of 27 April 2001 on the protection of the environment (Prawo ochrony środowiska – hereinafter “the Protection of the Environment Act”), which has been in force since 1 January 2002, and in the Minister for the Environment’s Ordinance on acceptable levels of noise in the environment (Rozporządzenie w sprawie dopuszczalnych poziomów hałasu w środowisku) in its version of 29 July 2004, in force from 13 August 2004 until 20 July 2007, and in its version of 14 June 2007, in force since 20 July 2007, with further amendments.
61. Pursuant to either version of the above ordinance, in residential areas with commercial activity, the acceptable level of noise is 55 dB(A) during the day (calculated in a span of eight hours) and 45 dB(A) at night (from 10 p.m. to 6 a.m.; calculated for the most noisy hour).
COMPLAINTS
62. The applicants complained that the noise and nuisance generated by the concerts had been so serious as to render the continuation of their business activity unfeasible. They complained under Article 1 of Protocol No. 1 to the Convention that the municipality, by constructing the open-air concert venue contrary to the law and in full knowledge that this project would ruin their business plans, interfered with their right to the peaceful enjoyment of their possessions. The applicants further alleged that their rights guaranteed by Article 6 of the Convention and Article 1 of Protocol No. 1 had been breached by the fact that the decisions and judgments ordering demolition of the open-air concert venue had for a long time remained unexecuted. They also complained under Article 8 of the Convention that as a result of the nuisance caused by the concerts they had to abandon their business plans and move out of the building as it had become impossible to live in it.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION ON ACCOUNT OF NON-PECUNIARY DAMAGE
63. The applicants complained under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention that the high levels of noise nuisance and other disturbance generated by the open-air concert venue near the building in which they lived or wished to live and in which they ran their business, had made it impossible for them to enjoy their private and family life and their home, and breached their right to peaceful enjoyment of their possessions. These provisions read as follows, in so far as relevant:
Article 8 of the Convention
“1. Everyone has the right to respect for his private and family life, 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 national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 1 of Protocol no. 1 to the Convention
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. ...”
A. The parties’ submissions
64. The Government raised a preliminary objection that the applicants lacked a victim status within the meaning of Article 34 of the Convention. To this end, they argued that the mere fact that a concert venue had been constructed unlawfully next to the building which the applicants owned and used for residential and business purposes did not automatically affect their right to respect for private and family life or for home. Firstly, in the circumstances of the case, concerts and similar events had been organised only in the summer months up until 2004. After that date, the facility was not used and in 2016 it was demolished altogether. In the Government view, the applicants could therefore not have been exposed to any particularly serious nuisance related to the facility’s operation.
65. The Government also argued that having a property title to a house did not on its own generate a right to respect for home within the meaning of the Convention. To this effect, they submitted that one applicant, Mr Szubryt, had lived in the building in question only for a short time in the late 1990s. He was therefore not in a position to present a grievance about the disturbance of the peaceful enjoyment of his home or his private and family life and this part of the application was ratione materiae incompatible.
66. Lastly, the Government argued that, irrespective of the above, this part of the application was inadmissible for non-exhaustion of domestic remedies. In particular, the applicants should have availed themselves of the effective civil remedy under Article 144 of the Civil Code, either in conjunction with Article 222 of or with Articles 448, 23 and 24 of the same code.
67. The applicants essentially argued that they had certainly been exposed to unbearable noise and disturbance when the concert venue had been in operation. Moreover, as long as the construction existed, there had been a risk of future nuisance and a threat to peaceful enjoyment of their possessions. As such risk was implied in the mere existence of the unlawful construction, the applicants’ rights had been infringed upon also between 2004 and 2016. The demolition had been ordered by the domestic authorities precisely because it had been considered that the concert venue interfered with the applicants’ rights. Lastly, the applicants argued that Mr Szubryt, who had only very shortly lived in the building in question, had still been affected by the nuisance as he had been impeded from conducting his business activity there.
B. The Court’s assessment
68. The Court finds it unnecessary to deal in detail with each and every objection to the admissibility of this part of the application raised by the Government because it considers that this complaint should in any event be rejected in accordance with the principle of subsidiarity for non‑compliance with the rule of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention. This Article states, in so far as relevant:
“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ... .”
69. The applicants complained about adverse effects on their rights to peaceful enjoyment of their possessions and home and to respect for their private and family life caused by the open-air concert venue which had been illegally constructed in the close vicinity of their residential and business premises. The applicants considered that the infringement of their rights had stemmed, until 2004, from the noise and disturbance during the concerts and similar gatherings, and, from 2004 until 2016, from the risk that such nuisance would resume even though the facility had ceased to operate before being demolished on the latter date.
70. The applicants participated in several sets of administrative proceedings, the subject matter of which was the legality of the planning permission (see paragraphs 6, 7, 11 and 12 above) and of the construction permit (see paragraph 11 above) issued by the authorities in respect of the concert venue. The Court notes that those proceedings did not concern the issue of whether the applicants had sustained any non-pecuniary damage as a result of those decisions and whether their rights to respect for home and for private and family life and to peaceful enjoyment of their property had been interfered with.
71. The applicants also pursued several civil cases in which they sought compensation for the alleged business losses (see paragraphs 22‑34 above). These proceedings, therefore, did not concern any non-pecuniary damage on account of interference with the applicants’ right to peaceful enjoyment of possessions as such.
72. The Court therefore considers that, in so far as this part of the application concerns the applicants’ right to respect for home and for private and family life and their right to peaceful enjoyment of possessions (see, mutatis mutandis, Raffaela Vitiello and Salvatore Vitiello v. Italy, no. 6870/03, § 30, 17 July 2007), the applicants could have obtained suitable redress by availing themselves of some of the remedies referred to by the Government.
73. Firstly, the Court sees no reason to disagree with the Government about the fact that the applicants could have filed a compensation claim under Article 160 of the Code of Administrative Procedure (which was replaced by Article 417¹ § 2 of the Civil Code) for the alleged damage resulting from the defective administrative decision, namely from the construction permit issued by the mayor of Żywiec on 14 August 1998 (see paragraph 10 above). That decision was declared null and void by the Chief Inspectorate of Construction Supervision of 4 April 2001 and the applicants were informed that it opened for them the possibility of seeking compensation under Article 160 of the Code of Administrative Procedure (see paragraph 12 above; see also Pawlak v. Poland (dec.), no. 29179/06, 19 March 2013, § 65, and Łaszczak v. Poland (dec.), no. 29078/07, 11 March 2014, § 54).
74. Secondly, in so far as the applicants complain about the nuisance (noise and general disturbance) generated by the summer concert venue and its beer bar, the Court notes that, as argued by the Government, the applicants had the possibility of bringing a civil claim under Article 144 in conjunction with Article 222 § 2 of the Civil Code for protection of their property, namely restitution of their lawful position and cessation of infringements of their ownership rights. In this respect, the Court recalls that in a case against Poland the applicant obtained a ruling ordering the cessation of operations of a factory producing concrete located on an adjacent property under the same provisions of the Civil Code (see Apanasewicz v. Poland, no. 6854/07, §§ 12-16, 3 May 2011). A civil action under Article 144 in conjunction with Article 222 § 2 of the Civil Code was considered by the Court to be an effective remedy in the case of nuisance originating from an adjacent property (see Pawlak, cited above, § 66 and Łaszczak, cited above, § 55).
75. The applicants could have also pursued the appeal in the civil proceedings for compensation for nuisance which they had instituted on 24 May 2011 (see paragraphs 35 and 36 above).
76. All in all, the Court is not persuaded that the administrative proceedings in which the applicants participated constituted, in the circumstances of the case, an adequate remedy in the context of non‑pecuniary damage which they had allegedly suffered. Moreover, the applicants have not shown that the civil remedies advanced by the Government were inadequate or ineffective.
77. In consequence, the Court finds that it would be inconsistent with the subsidiarity principle to accept the application for substantive examination without requiring the applicants first to submit the substance of their Convention claims to the domestic authorities.
78. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION ON ACCOUNT OF BUSINESS LOSSES
79. The applicants also complained that the nuisance generated by the open-air concert venue had rendered the continuation of their business activity unfeasible. In particular, they submitted that they had had no choice but to abandon their business plans; the construction of the hotel had been left unfinished; they had sustained heavy financial losses and their project had lost any economic viability. The applicants argued that the municipality, by constructing the open-air concert venue contrary to the law and in full knowledge that the project would render their business plans unfeasible, had interfered with their right to the peaceful enjoyment of their possessions within the meaning of Article 1 of Protocol No. 1 to the Convention.
A. The parties’ submissions
80. The Government argued that the applicants were not victims of the alleged violation because they had failed to show that the unlawfully constructed concert venue in the vicinity of their business premises, which had been in operation only occasionally until 2004, had caused them any business losses. To this end they submitted the domestic civil courts had not been satisfied that a causal linked existed between the applicants’ business difficulties and the existence of the concert venue.
81. The applicants’ view, pecuniary damage was not a condition for compatibility ratione personae. The applicants argued essentially that, as the owners of the business in the vicinity of the concert venue which was illegal and which had caused, between 1998 and 2004, serious noise and disturbance, they had been personally and directly affected by the situation giving rise to the violation of their property rights.
B. The Court’s assessment
82. The concept of “possession” within the meaning of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of material goods and is independent from the formal classification in domestic law: certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision. The issue that needs to be examined is normally whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by that provision (see, among many authorities, Beyeler v. Italy [GC], no. 33202/96, § 105, ECHR 2000‑I, and Brosset-Triboulet and Others v. France [GC], no. 34078/02, § 65, 29 March 2010).
83. It is not contested that the two businessmen applicants have made investments into the purchase and the works in the building which, some years later, found itself located in a short distance from an open‑air concert venue and its beer garden. This facility was constructed illegally and was in operation in the summer months between 1998 and 2004. It was demolished in 2016.
84. The Court observes that noise nuisance of considerable importance may affect the value of the property and in extreme cases even render it unsaleable (see, mutatis mutandis, Cokarić and Others v. Croatia (dec.), no. 33212/02, 19 January 2006). In such cases an issue may arise under Article 1 of Protocol No. 1. However, in the present case, it has not been argued that the value of the applicants’ property has, as a result of the noise nuisance, diminished so that an issue could arise under Article 1 of Protocol No. 1 (see, mutatis mutandis, Marchiş and Others v. Romania (dec.), no. 38197/03, § 45, 28 June 2011; Ashworth and Others v. the United Kingdom (dec.), no. 39561/98, 20 January 2004; Sciavilla v. Italy (dec.), no. 36735/97, 14 November 2000; and G.A. v. Sweden (dec.), no. 12671/87, 13 March 1989).
85. The applicants argued instead, before the domestic courts and before this Court, that they had suffered serious financial losses and had been forced to abandon their original business plan which consisted of running a hotel and a conference centre on the bottom floors of the building in question and of living in the apartments on the top floor. They claimed that their business failure had been in direct link with the fact that the concert venue had been constructed some metres from their property and that it had caused unbearable noise and disturbance when in operation. The applicants did not imply that they had been deprived of their means of earning a living.
86. To obtain redress for the alleged loss, the applicants sued the municipality, seeking a total of EUR 500,000 on account of pecuniary damage they claimed to have suffered. The case was examined by civil courts in two jurisdictions. The applicants and other witnesses were heard.
87. The first-instance court dismissed the applicants’ motion for evidence from experts in construction supervision and medicine. The Court is of the view that the reasons which the applicants presented to justify their motion were not valid (see paragraph 24 above). Consequently, the domestic court’s decision to do away with this particular evidence cannot be viewed as manifestly unjustified or arbitrary. It also did not infringe on the fairness of the proceedings as a whole or compromised their outcome.
88. Likewise, the Court considers that the refusal to grant the applicants legal aid in order to have a professional lawyer represent them towards the end of the proceedings before the first-instance court and later, before the appellate court, did not breach, in the circumstances of the case, the principle of equality of arms and put the applicants at disadvantage vis-à-vis the respondent party. The case material clearly shows that the applicants had been procedurally active and perfectly apt for formulating their motions and legal arguments.
89. Overall, the Court cannot call into question the domestic decision‑making process or the civil courts’ conclusion that the applicants had not shown the causal link between their business problems and the illegal construction of the concert venue on the land adjacent to their building. The applicants have indeed failed to coherently quantify the alleged pecuniary damage to their business and to prove that is had resulted from the existence or the operation of the concert venue in question (compare with, Flamenbaum and Others v. France, nos. 3675/04 and 23264/04, § 191 and 192, 13 December 2012).
90. Consequently, the examination of this complaint does not disclose any appearance of a violation of Article 1 of Protocol No. 1 to the Convention.
91. Accordingly, this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
92. Lastly, the applicants complained under Article 6 of the Convention that the decisions and judgments ordering the demolition of the concert venue had remained unexecuted.
93. In the circumstances of the present case, the Court considers that the applicants’ complaint under Article 6 is essentially the same as the complaints examined and rejected under Articles 8 of the Convention and Article 1 of Protocol No. 1 to the Convention. Consequently, having regard to the fact that the illegal construction next to the applicants’ building has been demolished, and in view of its conclusions under the above-mentioned provisions (see paragraphs 78 and 91 above), the Court considers that no separate issue arises in the case under Article 6 of the Convention (see, mutatis mutandis, Carolinex Sp. z o.o. v. Poland, no. 19083/08, 13 March 2018).
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 March 2019.
Renata DegenerKsenija Turković
Deputy RegistrarPresident
Full & Egal Universal Law Academy