FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 24831/05
by Jerzy ROMANN
against Poland
The European Court of Human Rights (Fourth Section), sitting on 29 November 2005 as a Chamber composed of:
SirNicolas Bratza, President,
MrG. Bonello,
MrK. Traja,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 23 June 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Jerzy Romann, is a Polish national who was born in 1926 and lives in Poznań.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
a. Administrative proceedings
On 29 March 1999 the applicant lodged a request with the Konin District Construction Inspector for control of the lawfulness of the construction of a sewage system on his estate. On 13 July 1999 the Konin District Construction Inspector discontinued the proceedings as it found the departure from the construction permit not to be serious. The applicant appealed.
On 14 September 1999 the Konin Regional Construction Inspector quashed the decision as it found the departures from the construction permit serious enough to warrant an examination as to whether the construction was lawful.
Concurrently, on 28 January 2000 the applicant lodged a request for annulment of the construction permit given to the investor - the Kazimierz Biskupi Municipality (Gmina Kazimierz Biskupi), by the Director of the Konin District Office (Kierownik Urzędu Rejonowego w Koninie). On 20 September 2000 the Konin District Municipality (Starostwo Powiatowe w Koninie) took a decision annulling the construction permit given to the investor.
On 1 February 2000 the Konin District Construction Inspector issued a decision by which it found the departures from the construction permit to be serious, but also found that the applicant had given his consent to these departures. It obliged the investor to bring the works into conformity with the law. The applicant appealed, challenging the finding that he had consented to the departures from the construction permit. On 17 April 2000 the Regional Construction Inspector upheld the decision. The applicant lodged a complaint with the Supreme Administrative Court.
On 23 November 2001 the Supreme Administrative Court gave a judgment by which it quashed the decision of 17 April 2000 and the preceding one issued on 1 February 2000. It found the construction unlawful as being in breach of the construction permit.
On April 2002 the applicant lodged a complaint about the inactivity of the District Construction Inspector. On 18 April 2002 the Regional Construction Inspector issued a decision in which it found inactivity on the part of the District Construction Inspector.
On 10 May 2002 the District Construction Inspector gave a decision in which it found that the sewage system works had manifestly departed from the construction permit and obliged the investor to make the necessary changes to the construction in order to bring it into conformity with the law. The applicant appealed, seeking the demolition of the construction works conducted on his estate.
On 10 June 2002 the Regional Construction Inspector quashed the decision and remitted the case to a lower authority.
On 9 July 2002 the District Construction Inspector issued a decision ordering the investor to demolish the sewage system built on the applicant estate. The applicant’s opponent appealed.
On 5 August 2002 the Regional Construction Inspector upheld the decision of 9 July 2002. The applicant’s opponent appealed.
On 1 January 2004 the Regional Administrative Court gave a judgment quashing the decision of 5 August 2002 and the preceding decision of 9 July 2002. The applicant appealed.
The proceedings before the Supreme Administrative Court are pending.
b. Civil proceedings
On an unknown date the applicant filed an action with the Poznań Regional Court against the Kazimierz Biskupi Municipality for payment for the use of the applicant’s land without his permission.
On 11 March 2004 the Poznań Regional Court gave a judgment by which it ordered payment to be made to the applicant, although not in the amount required by the applicant. The applicant appealed.
On 15 December 2004 the Poznań Court of Appeal dismissed the appeal.
The applicant has not shown that he lodged any motion with the competent court or the court bailiff in order to institute enforcement proceedings in respect of the above-mentioned judgments.
B. Relevant domestic law
Under domestic law the inactivity of authorities (length of administrative proceedings) may be challenged by way of two avenues.
Firstly, a party to administrative proceedings may make a complaint under Article 37 §1 of the Code of Administrative Procedure in order to urge the relevant authority to issue a decision within the time-limits fixed in that Code.
If unsatisfied with the outcome of the proceedings initiated by a complaint under Article 37 of the Code of Administrative Procedure a party could, until 1 January 2004, lodge a complaint about the inactivity of administrative authorities with the Supreme Administrative Court under Article 17 of the Act of 1995 on the Supreme Administrative Court. After that date a regional administrative court became competent to examine the complaint about the inactivity of administrative authorities. Against a judgment or a decision of the regional administrative court, given in respect of the inactivity complaint, a party may lodge an appeal with the Supreme Administrative Court under Article 173 of the Law of 30 August 2002 on proceedings before administrative courts.
Secondly, a party may challenge the length of administrative judicial proceedings under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (in force from 17 September 2004).
Pursuant to Article 3:
“A complaint may be lodged: ...
6) in the judicial-administrative proceedings – by a claimant and a participant to the proceedings acting as a party;”
Article 2 of the Act provides for a special action by which a party can seek a declaration that his or her right to have the case heard within a reasonable time has been breached. The court shall take into consideration the following criteria: the conduct of the court before which the case is pending; the character of the case and the complexity of the legal and factual issues involved therein; what was at stake for the complainant, and the conduct of the parties. The length complaint must be lodged when the proceedings concerned are still pending.
Article 5 of the Act reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ..”
Pursuant to Article 12, if the court finds that the length complaint is well-founded, it shall give a ruling to this effect. If the complainant so requests, the court can also recommend that the court before which the case is pending takes certain procedural measures in the impugned proceedings. The court may also award an appropriate amount of money to the complainant, in an amount not exceeding PLN 10,000.
Under Article 18, within six months after the entry into force of this Act, that is, from 17 September 2004, anyone who had lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable-time’ requirement contained in Article 6 § 1 of the Convention was entitled to lodge a length complaint provided for by the Act, if the application to the Court had been lodged when the proceedings were still pending and if it had not been declared admissible by the European Court yet.
COMPLAINTS
The applicant complains in substance under Article 6 of the Convention about the excessive length of the proceedings.
The applicant further complains under Article 13 about the fact that although the Kazimierz Biskupi Municipality was ordered to make payment to him by the Poznań Regional Court judgment of 11 March 2004, upheld by the Poznań Court of Appeal judgment of 15 December 2004, the sum has not been paid to date.
THE LAW
1. The applicant complains under Article 6 of the Convention that the length of the proceedings was excessive.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with the Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent Government.
2. The applicant further complains about the fact that although payment had been ordered to be made to him by the Poznań Regional Court judgment of 11 March 2004, upheld by the Poznań Court of Appeal judgment of 15 December 2004, it has not been made to date. He relies on Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
According to Article 796 §1 of the Polish Code of Civil Procedure of 17 November 1964, enforcement proceedings can be instituted by a request lodged with a competent court or a court bailiff. Only in a situation when the proceedings on the merits may be instituted ex officio, may the enforcement proceedings also be instituted ex officio at the request of a first-instance court. This situation has not occurred in the present case, as the proceedings were instituted by the applicant himself. As the applicant has not shown that he lodged any request to institute enforcement proceedings, the Court finds that this complaint is inadmissible for non-exhaustion of domestic remedies and as such must be rejected in accordance with Article 35 §§1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the undue length of administrative proceedings;
Declares the remainder of the application inadmissible.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy