FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47995/99 
by Kazimierz KOŁODZIEJ and Teresa KOŁODZIEJ 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 18 October 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr M. Pellonpää
 Mr K. Traja
 Mr L. Garlicki
 Mr J. Borrego Borrego, 
 Ms L. Mijović, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 6 January 1998,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

The applicants, Mr Kazimierz Kołodziej and Mrs Teresa Kołodziej, are Polish nationals who live in Toruń, Poland.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Proceedings for payment

The applicants own a flower stall. On 12 February 1992 the Toruń City Board (Zarząd Miasta) ordered them to remove the stall from a public road, where they had located it without the required authorisation. The applicant’s did not obey and, on 9 March 1992, the stall was removed and put into storage.

The applicants have not attempted to recover it.

On 14 October 1993 the applicants sued the Toruń Municipality before the Toruń District Court (Sąd Rejonowy), seeking compensation for their stall, which had allegedly been damaged.

On 17 December 1996 the court dismissed the claim. It found that the applicants had wrongly sued the Municipality, as the party to the proceedings should have been the Toruń Governor (Wojewoda Toruński).

On 9 July 1997 the Toruń Regional Court (Sąd Okręgowy) upheld the first instance judgment.

Due to the value of the claim, a cassation appeal was not available in this case.

2.  Proceedings concerning a building permit

On 10 April 1989 the Architect of Toruń (Architekt Miejski) issued a building permit in favour of E.W. and Z.W., the applicants’ neighbours. They were to build an outhouse.

On 3 July 1989 the Toruń Governor (Wojewoda Toruński), upon the applicants’ appeal, upheld the contested decision.

On 28 December 1989 the Supreme Administrative Court (Naczelny Sąd Administracyjny) remitted the case.

The Governor upheld his original decision on 26 June 1990.

On 17 October 1990 the Supreme Administrative Court declared that decision null and void.

On 18 December 1990 the Governor again upheld his original decision.

It was quashed by the Supreme Administrative Court on 14 March 1991.

3.  Proceedings concerning temporary measures

On 14 October 1991 the Toruń District Office ordered that E.W. and Z.W. make temporary arrangements to ensure the safety of the neighbouring house.

On 23 December 1991 the Toruń Governor upheld that decision.

The applicants appealed on 14 January 1992.

On 30 April 1992 the Supreme Administrative Court gave judgment.

4.  Proceedings concerning a demolition order

On 27 August 1992 the Mayor of Toruń (Prezydent Torunia) ordered that the outhouse be demolished.

On 19 October 1992 the Toruń Governor upheld the first instance decision.

On 15 April 1993 the Supreme Administrative Court dismissed E.W’s and Z.W.’s further appeal.

On 15 July 1994 the Minister of Town and Country Planning and Construction (Minister Gospodarki Przestrzennej i Budownictwa) refused the applicants’ neighbours’ application for the annulment of the decisions of 27 August and 19 October 1992.

On 7 February 1996 the Supreme Administrative Court dismissed their appeal.

On 8 November 1997 the applicants complained to the Toruń Town Office (Urząd Miasta) about the fact that the outhouse had not been demolished.

In reply, the Office informed them that enforcement proceedings would be initiated.

On 27 April 1998 the applicants complained about inactivity on the part of the Town Office to the Mayor of Toruń. They maintained that the demolition order of 27 August 1992 had not been executed.

On 2 June 1998 the Mayor replied that the applicants’ neighbours had been fined for non-compliance with the order, but the relevant authorities had failed to execute that decision.

On 7 January 1999 the applicants complained to the Kujawsko-Pomorski Governor (Wojewoda Kujawsko-Pomorski) about the inactivity of the Town Office.

On 21 July 1999 the Toruń District Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego w Toruniu) informed the applicants that, since their neighbours had failed to demolish the outhouse, a so-called “vicarious” execution (wykonanie zastępcze) of the demolition order would be carried out.

On 18 October 1999 the District Inspector issued a decision ordering the vicarious execution.

On 5 November 1999 the Kujawsko-Pomorski Regional Inspector of Construction Supervision (Kujawsko-Pomorski Wojewódzki Inspektor Nadzoru Budowlanego) upheld that decision.

On 8 May 2002 the Supreme Administrative Court dismissed E.W.’s and Z.W.’s further appeal.

It appears that the demolition has not been carried out to date.

B.  Relevant domestic law and practice

At the material time section 54 of the Law of 17 June 1966 on Enforcement Proceedings in Administration (“the 1966 Act”) provided that a creditor had a right to lodge a complaint about excessive length of enforcement proceedings with an authority superior to that carrying them out.

On 30 November 2001 section 54 of the 1966 Act was amended. Under §§ 2 and 3 of this provision a person whose legal or factual interest is infringed as a result of non-enforcement of the obligation has a right to lodge a complaint about the length of proceedings. Paragraph 5 provides for an appeal if a complaint is dismissed.

On 1 October 1995, the Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) entered into force.

Under section 17 of the 1995 Act the Supreme Administrative Court was competent to examine complaints against inactivity on the part of an authority obliged to issue an administrative decision or to carry out enforcement proceedings.

Section 26 of the Act provided:

 “When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige 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, impose a fine on it and might itself give a ruling on the right or obligation in question.

The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Proceedings before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004. Section 3 § 2 of the 2002 Act contains provisions analogous to section 17 of the 1995 Act. It provides that administrative courts examine complaints about inactivity on the part of authorities obliged to issue an administrative decision or to carry out enforcement proceedings. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.

THE LAW

1. The applicants complained under Article 6 § 1 of the Convention that the length of the proceedings concerning the demolition order (section 4 of the statement of the facts) exceeded the reasonable time requirement

The Government maintained that the applicants had failed to exhaust domestic remedies, as required under Article 35 § 1 of the Convention.

That Article, in its relevant part, provides:

The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...”

As to the specific basis of their preliminary objection, the Government stated that the applicants had not attempted to pursue remedies designed to counteract the inactivity of the administrative authorities.

They submitted that, since 30 November 2001, the applicants could have made a formal complaint under section 54 § 2 of the 1966 Act. Instead they made several complaints to various authorities which were not competent to deal with their case. Moreover, under section 26 of the 1995 Act, they had a possibility to lodge a complaint about the inactivity of the executive authorities with the Supreme Administrative Court.

The applicants pointed out that they had made several complaints to various institutions. They maintained that, had their complaints been erroneous, it was the authorities’ obligation to refer them to the competent bodies.

The Court reiterates that the purpose of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford Contracting States an opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. In that way Article 35 § 1 obliges the applicant to try available remedies that relate to the breach alleged by him (see, among other authorities, Selmouni v. France [GC], §§ 74-76, ECHR 1999-VII; Bukowski v. Poland (dec.), no. 38665/97, 11 June 2002).

The Court observes that the applicants have not contested the availability of the remedies relied on by the Government. Instead, they maintained that they had exhausted all available remedies.

The Court notes that, since the entry into force of amendments to the 1966 Act, the applicants, who were not parties to the proceedings in question, but had an interest in their termination, had a possibility to lodge a complaint about excessive length of the proceedings under section 54 § 2 of that act. The Court observes further that, had the complaint under section 54 been unsuccessful, the applicants still had the possibility to obtain - through the procedure laid down in section 26 of the 1995 Act – a ruling on their rights or obligations directly from the Supreme Administrative Court. Since 1 January 2004 they could lodge a complaint about prolongation of the proceedings under section 3 of the Law of 2002. However, the applicants did not avail themselves of this opportunity and did not attempt to lodge a complaint about inactivity on the part of the authorities concerned.

Accordingly, the Court holds that the Government’s preliminary objection should be allowed.

It follows that these complaints are inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

2. The applicants also complained about the length of the remaining administrative proceedings (referred to in sections 2 and 3 of the statement of the facts).

The Court notes that both sets of proceedings terminated before 1 May 1993 (on 14 March 1991 and 30 April 1992 respectively), the date on which the declaration whereby Poland accepted the right of individual petition took effect.

It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3. The applicants further complained under Article 6 § 1 of the Convention about unfairness of the proceedings for compensation (referred to in section 1 of the statement of the facts). They alleged that the courts had committed errors of fact and law when dealing with their case and that their judgments were unjust.

  The Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Garcia Ruiz v. Spain [GC], no. 30544/96, ECHR 1999-I, § 28).

The Court observes that the applicants did not allege any particular failure to respect their right to a fair hearing. In the light of the material in its possession, the Court finds no indication that the impugned proceedings were unfairly conducted.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

3. Lastly, the applicants complained under Article 1 of Protocol No.1 about the result of civil proceedings (referred to in section 1) and alleged that their right to the peaceful enjoyment of their possessions was violated as they were not granted compensation for their stall.

However, the Court notes that the applicants’ claim was dismissed because they had failed to lodge it against the competent authority. Consequently, they did not make use of the remedy available to them at the domestic level.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

KOŁODZIEJ v. POLAND DECISION


KOŁODZIEJ v. POLAND DECISION