Communicated on 8 January 2018
FIRST SECTION
Application no. 49725/11
Krzysztof WCISŁO
against Poland
lodged on 27 July 2011
STATEMENT OF FACTS
The applicant, Mr Krzysztof Wcisło, is a Polish national, who was born in 1963 and lives in Cracow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
The applicant owns the majority of shares in an apartment building situated in Cracow. The owners of the adjacent building extended their building upwards by raising the roof and adding another floor. The new roof was supported on a wall belonging to the applicant’s building.
2. Administrative proceedings concerning illicit extension of the adjacent building
On 1 June 2000 the applicant asked the Cracow District Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego ‑ “the District Inspector”) to institute proceedings concerning the illicit extension (samowola budowlana) of the building adjacent to his property.
On 20 July 2000 the District Inspector instituted proceedings against the applicant’s neighbours (the owners of the adjacent building).
On 24 April 2001 the District Inspector discontinued the proceedings because meanwhile, two flats in the adjacent building had been sold and the co-owners had changed. On the same date he instituted a new set of proceedings, indicating also the new co-owners as parties to the proceedings.
On 20 May 2002 the District Inspector issued a decision. Relying on an expert opinion, he ordered the co-owners of the flats situated on the additional floor to undertake certain building work so that the extension would comply with the relevant regulations.
On 5 June 2002 the applicant appealed to the Małopolski Regional Inspector of Construction Supervision (Małopolski Wojewódzki Inspektor Nadzoru Budowlanego – “the Regional Inspector”).
On 24 October 2002 the Regional Inspector overruled the decision of 20 May 2002, noting that there was no information in the file as to whether the experts on whose expertise the District Inspector had relied had the required licence.
On 11 April 2003 the District Inspector again ordered the co-owners of the adjacent property to undertake certain building work in order for the extension to comply with the relevant building permit.
On 27 April 2003 the applicant appealed.
On 18 June 2003 the Regional Inspector overruled the decision of 11 April 2003 on the grounds that the first-instance authority had wrongly indicated the persons obliged to undertake the building work.
On 18 November 2003 the District Inspector for the third time ordered the relevant co-owners to undertake certain precisely indicated building work in order for the extension to comply with the building permit.
On 1 December 2003 the applicant appealed.
On 10 February 2004 the Regional Inspector overruled the decision of 18 November 2003 on the grounds that the District Inspector had again wrongly indicated the co-owners of the adjacent building.
On 21 February 2005 the District Inspector gave a fourth decision on the merits, ordering the co-owners to suspend all building work and to provide a technical opinion.
On 12 September 2006 the Regional Inspector dismissed an appeal lodged by the co-owners of the adjacent building.
On 8 November 2006 and 25 January 2007 the District Inspector ordered the co-owners to suspend all construction work.
On 23 March 2007 the District Inspector ordered the co-owners to submit a corrected technical plan for the extension.
The decisions of 25 January and 23 March 2007 were overruled by the Regional Inspector on 3 and 4 November 2008 respectively on procedural grounds.
On 8 December 2011 the District Inspector yet again ordered the parties to provide a number of technical documents and a corrected building plan.
On 27 December 2011 some of the parties appealed.
On 26 October 2015 the Regional Inspector overruled the decision of 8 December 2011 and issued a decision on the merits, in particular, ordering the parties to submit a new building plan.
On 27 November 2015 one of the parties appealed.
On 10 May 2016 the Regional Administrative Court in Cracow (Wojewódzki Sąd Administracyjny) rendered its judgment on the matter, suspending enforcement of the decision of 26 October 2015.
The proceedings are still pending.
3. Length-of-proceedings complaints
On 27 May 2003 the applicant complained to the Regional Inspector about the delay in the proceedings.
On 3 September 2003 the applicant lodged a complaint with the Regional Inspector about the District Inspector’s failure to comply with the time‑limits provided for by Article 35 of the Code of Administrative Procedure.
On 12 November 2003 the Regional Inspector found, under Article 37 of the Code of Administrative Procedure, that the applicant’s complaint was well-founded and ordered the District Inspector to deliver a decision on the merits before 12 December 2003.
On 12 January 2006 the applicant complained to the Regional Inspector about the inactivity of the District Inspector.
On 16 March 2006 the Regional Inspector decided, pursuant to Article 37 of the Code of Administrative Procedure, that the applicant’s complaint was not justified.
Subsequently, on 31 July 2006 the applicant lodged a complaint under the Administrative Courts Act of 30 August 2002 (Prawo o postępowaniu przed sądami administracyjnymi) (“the 2002 Act”) (see Relevant domestic law part below) with the Cracow Regional Administrative Court about the delays in the proceedings.
On 16 February 2007 the Cracow Regional Administrative Court gave judgment confirming that there had been a delay in the proceedings before the District Inspector. It ordered the District Inspector to deliver a decision on the merits within two months of the date of the judgment.
On 28 July 2008 the applicant again complained to the Regional Inspector about the delays in the proceedings.
The complaint was transferred to the Chief Inspector of Construction Supervision (Główny Urząd Nadzoru Budowlanego – “the Chief Inspector”).
On 11 September 2008 the Chief Inspector informed the applicant that his complaint was well-founded and that there had indeed been a delay in the proceedings.
On 19 September 2008 the Chief Inspector decided that the applicant’s complaint about the failure to comply with the time-limits specified in Article 35 of the Code of Administrative Procedure should have been lodged with the Regional Inspector.
On 1 March 2011 pursuant to Article 37 § 1 of the Code of Administrative Proceedings, the District Inspector set a new time-limit to deal with the case (1 May 2011).
On 29 March 2011, in response to the applicant’s complaint of 28 July 2008, the Regional Inspector refused to set a new time-limit for the District Inspector, as meanwhile the time-limit had already been extended.
On 20 April 2012 the Regional Inspector set another new time-limit for dealing with the case (31 July 2012).
On 9 June 2015 the Regional Inspector set yet another new time-limit for dealing with the case (31 August 2015).
B. Relevant domestic law and practice
1. Code of Administrative Procedure
Article 35 of the Code of Administrative Procedure (“the Code”) lays down time-limits ranging from one month to two months for dealing with a case pending before an administrative authority. If those time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit. Article 37 § 1 provides that if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal with the higher authority, alleging inactivity. In cases where the allegations of inactivity are well‑founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent such delays in the future.
2. The 1995 Act
The Supreme Administrative Court Act of 11 May 1995 (“the 1995 Act”) entered into force on 1 October 1995. Section 17 of the Act provided that a party to administrative proceedings could, at any time, lodge a complaint with the Supreme Administrative Court about inactivity on the part of an authority obliged to issue an administrative decision.
Section 26 of the 1995 Act provided:
“If a complaint alleging inactivity on the part of an administrative authority is well‑founded, the Supreme Administrative Court shall order that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.”
Pursuant to section 30 of the 1995 Act, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity was legally binding on the authority concerned. If the authority did not comply with the decision, the court could, under section 31 of the Act, impose a fine on it and could itself give a ruling on the right or obligation in question.
Under the same provision, a party to the proceedings who sustained damage as a result of a failure on the part of the administrative body to act in compliance with the judgment of the Supreme Administrative Court given under section 17 of the Act, was entitled to claim compensation from the administrative authority concerned, in accordance with the principles of civil liability set out in the Civil Code.
3. The 2002 Act
The 1995 Act was repealed and replaced by the Administrative Courts Act of 30 August 2002 (Prawo o postępowaniu przed sądami administracyjnymi) (“the 2002 Act”), which entered into force on 1 January 2004. Section 3(2)(8) of the 2002 Act contains provisions analogous to section 17 of the 1995 Act. A party to administrative proceedings can lodge a complaint with an administrative court alleging inactivity on the part of an authority responsible for issuing an administrative decision.
Section 149 in its original wording provided:
“If the court finds a complaint alleging inactivity on the part of an authority well‑founded in cases described in section 3(2)(1) to (14), it shall order the authority concerned to issue a decision within a prescribed time-limit, or to perform a specific act, or to confirm or recognise a right or obligation provided for by law.”
Section 154 in its original wording, in so far as relevant, provided
“1. In the event of an authority’s failure to implement a judgment allowing a complaint about inactivity ... a party to the proceedings, after submitting a written request to the authority concerned, may lodge a complaint in that respect asking for a fine to be imposed on that authority.
2. In situations described in subsection (1) above, a court may decide about the existence or non-existence of a right or obligation, if it is possible in view of the type of matter concerned and its factual and legal circumstances.
...”
4. Relevant amendments
(a) Amendments of 2011
In 2011 the Code of Administrative Procedure and the 2002 Act were amended on several occasions. The amendments entered into force on 11 April, 17 May and 12 July 2011.
(i) Code of Administrative Procedure
In particular, the amended Article 37 § 1 of the Code of Administrative Procedure stipulates that a party to administrative proceedings may lodge a complaint not only about an authority’s failure to handle the case within the time‑limits referred to in Articles 35 and 36 (as then provided for), but also about undue delay in conducting the proceedings (przewlekłe prowadzenie postępowania). Pursuant to Article 37 § 2, when examining the complaint, the higher authority also holds whether the inactivity or undue delay was in flagrant breach of the law (rażące naruszenie prawa).
(ii) the 2002 Act
In particular, under the amended section 149 of the 2002 Act, if the Administrative Court considers a complaint to be well-founded, it must also determine whether the inactivity or undue delay was in flagrant breach of the law. A new subsection 149(2) was also introduced, providing that if a court allowed a complaint alleging inactivity, it could also, either of its own motion or at a party’s request, impose on the responsible authority a fine of up to ten times the average monthly public-sector salary.
(b) Amendments of 2015
The 2002 Act was amended again on 9 April 2015 (the amendments entered into force on 15 August 2015). The changes were aimed mainly at simplifying proceedings before the administrative courts. In particular, if an administrative court considers a complaint alleging inactivity well-founded, in addition to ordering an administrative authority to act in a certain manner, it can also issue a decision on the substance of the case (section 149(1(b)). In addition, the administrative court may not only fine the administrative authority on account of its inactivity, but may also order it to pay compensation directly to an applicant in an amount of up to five times the average monthly public-sector salary (section 149(2))[1]. A similar solution is provided for if an administrative authority fails to implement a court’s judgment allowing a complaint alleging inactivity (section 154(2) and 154(7)).
(c) Amendments of 2017
The Code of Administrative Procedure was amended on 7 April 2017 (the amendments entered into force on 1 June 2017 and concern only the proceedings instituted after that date). Several new procedures aiming at simplifying and accelerating the proceedings were introduced, in particular: a “silent procedure” (milczące załatwienie sprawy), a simplified procedure (Articles 35 § 3 (a), Articles 163b-163g.). Moreover, the Code was amended to include legal definitions of inactivity (bezczynność) (Article 37 § 1 (1)) and excessive length (przewlekłość) (Article 37 § 1 (2)). The complaint about the authority’s failure to comply with the time-limits provided in Article 37 was titled “request for acceleration” (ponaglenie). Pursuant to the amended provisions a higher authority is now obliged to examine a party’s request for acceleration within seven days.
5. Civil Code
Article 417¹ § 3 of the Civil Code entered into force on 1 September 2004. It provided for a possibility of lodging a compensation claim for damage resulting from the unreasonable length of administrative proceedings, after it had been formally determined in the relevant proceedings that there had been an unlawful failure to issue an administrative decision within the relevant time-limits.
6. The 2004 Act
The relevant domestic law and practice concerning remedies for excessively lengthy judicial proceedings, in particular the applicable provisions of the Law of 17 June 2004 on the right to have a case examined in judicial proceedings without undue delay (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”), are presented in the Court’s judgment in the case of Rutkowski and Others v. Poland (nos. 72287/10, 13927/11 and 46187/11, §§ 75-92, 7 July 2015) and also in decision in Załuska, Rogalska and Others v. Poland (dec.), nos. 53491/10 and 72286/10, §§ 19-22, 20 June 2017.
COMPLAINTS
1. The applicant complains under Article 6 of the Convention of the excessive length of the administrative proceedings in his case.
2. He further alleges a breach of Article 13, on the grounds that the remedies against the length of proceedings were not effective in his case.
3. The applicant alleges in substance an inability to fully enjoy his property rights on account of the prolonged proceedings concerning the illicit extension of the adjacent building.
QUESTIONS TO THE PARTIES
1. Having regard to the Court’s case-law on the “reasonable time” requirement laid down in Article 6 § 1 has there been a violation of this provision in the applicant’s case?
2. Having regard to the facts of the present case, the principles established by the Court in respect of an “effective remedy” and the characteristics of redress required at national level for a violation of the right to a hearing within a reasonable time, can the combination of remedies under the Code of Administrative Procedure (Article 37), the Administrative Courts Act of 2002 (sections 149 and 154) and the 2004 Act be regarded as “effective” for the purposes of Article 13 of the Convention (see, in particular, Kudła v. Poland, §§ 157-159; Scordino (no. 1) v. Italy, [GC] no. 36813/97, §§ 195-216, with further references and Rutkowski and Others v. Poland (nos. 72287/10, 13927/11 and 46187/11, §§ 172-175, 7 July 2015)?
3. Does the length of the administrative proceedings in the present case also give rise to an interference with the applicant’s right to the peaceful enjoyment of his possessions, in breach of that provision (compare Lyubomir Popov v. Bulgaria, no. 69855/01, §§ 119-124, 7 January 2010)?
[1]These sums are as follows: up to PLN 20,236 (2017); PLN 19,498 (2016); PLN 18,917 (2015).
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