FOURTH SECTION

DECISION

Application no . 29179/06 Miros Å‚ awa and Janusz PAWLAK against Poland

The European Court of Human Rights (Fourth Section), sitting on 19 March 2013 as a Chamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , George Nicolaou , Ledi Bianku , Zdravka Kalaydjieva , Krzysztof Wojtyczek , Faris Vehabović , judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 3 July 2006,

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, Ms Mirosława Pawlak and Mr Janusz Pawlak , are Polish nationals, who were born in 1951 and 1947 respectively and live in Piastów . They were represented before the Court by Mr W. Śliwiński , a lawyer practising in Warsaw . The Polish Government (“the Government”) were represented by their Agent, first Mr J. Wołąsiewicz and, subsequently, Ms J. Chrzanowska , both of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

3. The applicants, a married couple, built a house in Piastów in 1999. The house is located on an estate of detached family houses.

4. In 1997 the Piastów municipality sold a plot of land to HIT Zarząd Majątkiem Polska Piastów 1 sp. z. o.o . (“the HIT company”). According to the applicants, the sales contract was conditional on the issuance of the planning permission for the construction of a commercial centre.

1. Proceedings concerning planning permission

5. On 28 May 1999 the Mayor of Piastów granted planning permission ( decyzja o warunkach zabudowy i zagospodarowania terenu ) to the HIT company for the construction of a commercial centre. The Mayor found that the planned commercial centre conformed to the local development plan. The decision provided that on one side of the commercial centre the investor was required to erect a minimum three-metre high screen between the delivery area of the centre and the neighbouring houses.

6. It appears that the applicants were not informed about the grant of the planning permission despite the fact that their house was directly adjacent to the area of the future development. As a result, they could not lodge a regular appeal against the grant of planning permission.

7. On 5 October 1999 the Mayor of Piastów partly altered the planning permission by adding another plot to the planned development.

8. On 26 October 2000 the applicants requested the Warsaw Local Government Board of Appeal to declare the planning permission null and void. They argued that it had been issued contrary to the provisions of the local development plan. On 1 August 2001 the Board of Appeal refused the request and subsequently confirmed its decision on 8 May 2002.

9. On 17 October 2003 the Supreme Administrative Court quashed both decisions of the Board of Appeal as being issued prematurely. Subsequently, the Supreme Administrative Court dismissed the cassation appeal lodged by the HIT company.

10. On 4 December 2003 the Board of Appeal again refused to declare the planning permission null and void. On 17 February 2006 the Board of Appeal confirmed its earlier decision. The applicants together with other neighbours and two local associations appealed.

11. On 16 November 2006 the Warsaw Regional Administrative Court quashed both decisions of the Board of Appeal. It observed that pursuant to the Local Planning Act a planning permission was null and void if it was contrary to the local development plan. The court found that the local development plan in Piastów had reserved the relevant part of the town for green zones and services with accompanying green zones. It accordingly held that the Board of Appeal had erred in its examination of the provisions of the local development plan related to the area on which the commercial centre was to be built. Furthermore, the Board of Appeal had erred in its assessment of the adverse environmental impact of the commercial centre. The court referred in this respect to the Supreme Administrative Court ’ s judgment of 12 November 2002 (case no. IV SA 1373-1379/02, see below). It noted, among other things, that the delivery area of the commercial centre on the Harcerska street side was to be isolated by a minimum three-metre high wall from the neighbouring estate of detached houses.

12. On 18 June 2007 the Board of Appeal, following the findings of the Regional Administrative Court, declared the planning permission null and void pursuant to Article 156 § 1 (2) and (7) of the Code of Administrative Procedure. The primary reason for the annulment decision was that the planning permission had been issued in breach of the local development plan. On 31 August 2007 the Board of Appeal confirmed its decision.

13. On 10 December 2007 the Warsaw Regional Administrative Court rejected the HIT company ’ s complaint as being submitted out of time.

2. Proceedings concerning the construction permit

14. Having obtained planning permission, the HIT company was required to obtain a construction permit. On 16 August 2000 the Mayor of Piastów issued a construction permit ( pozwolenie na budowę ) for a commercial centre and supporting facilities. The applicants and other neighbours appealed. They submitted, inter alia , that the planned construction would be contrary to the local development plan. They also argued that the commercial centre would adversely affect their health and their homes.

15. On 24 August 2000 the Mayor of Piastów issued an order ( postanowienie ) in which he altered a number of plots on which the commercial centre was to be constructed. That order was issued under Article 113 of the Code of Administrative Procedure which provided for rectification of clerical errors and obvious mistakes in administrative decisions. On 15 February 2002 the Mazowiecki Governor dismissed the applicants ’ appeal against that order. The applicants appealed.

16. On 19 February 2002 the Mazowiecki Governor dismissed the applicants ’ appeal against the construction permit of 16 August 2000. Consequently, the construction permit became final and enforceable. It appears that shortly afterwards the HIT company started construction works.

17. The applicants appealed against the Governor ’ s decision to the Supreme Administrative Court . They argued, inter alia , that the adverse environmental impact of the commercial centre had not been duly addressed by the administrative authorities. The applicants also requested the administrative court to issue an interim order halting the enforcement of the construction permit. It appears that the court did not respond to this request.

18. On 12 November 2002 the Supreme Administrative Court (case no. IV SA 1373-1379/02) quashed as unlawful the decision of the Governor and the construction permit issued by the Mayor. It found that the planned commercial centre was to be considered as having an adverse environmental impact within the meaning of the Ordinance of the Minister of the Environment of 14 July 1998. In this respect it had regard to the fact that the commercial centre would have a meat-processing capacity of ten tons per day, car park facilities for five hundred cars and a commercial surface area exceeding three hectares. The court noted that had the commercial centre been considered as a development adversely affecting the environment, the local authorities would have been required to follow stringent procedures. It further observed that:

“As it transpires from the file, the authorities conducting the proceedings and the investor, were perfectly aware of the existing regulations and the relevant obligations; however at all costs it was attempted to give the public an impression that the investment is not considered as having a potentially adverse impact on the environment, manipulating from the very beginning the number of plots, the number of places in the car park and interpreting narrowly the notion of “a commercial centre”.

The court observed that the authorities had failed to carry out relevant analyses of the environmental impact of the commercial centre and that their findings as to its environment-neutral status had been entirely unsubstantiated.

19. On 12 November 2002 the Supreme Administrative Court quashed as unlawful the Governor ’ s order of 15 February 2002 and the Mayor ’ s order of 24 August 2000. It observed that the Mayor ’ s order on rectification of the construction permit had been in fact a decision on the merits of the case and should have been issued in the form of an administrative decision. In addition, that rectification order had made the construction permit incompatible with the planning permission of 28 May 1999.

20. On 6 October 2003 the Mayor of Piastów discontinued the proceedings concerning the issuance of the construction permit. It found that the construction of the commercial centre had been terminated in October 2002 and that the HIT company had begun operating it. In those circumstances, the proceedings concerning the construction permit had become devoid of purpose.

21. The applicants appealed. On 26 March 2004 the Mazowiecki Governor dismissed their appeal against the discontinuation of the proceedings.

22. The applicants lodged a complaint against that decision with the Warsaw Regional Administrative Court . On 12 October 2004 the court dismissed their complaint. On 7 December 2005 the Supreme Administrative Court dismissed the applicants ’ cassation appeal against the Regional Administrative Court ’ s judgment. The judgment was served on the applicants on 6 February 2006.

3. Proceedings concerning a permit for use of the building

23. On 21 October 2002 the Mayor of Piastów issued a permit for the use ( pozwolenie na użytkowanie obiektu budowlanego ) of the HIT commercial centre with the supporting facilities. It appears that the Mayor did not serve the decision on the applicants and other interested neighbours.

24. The applicants together with a group of their neighbours and a local association “ Eko-Piastów ” appealed to the Mazowiecki Governor. On 12 May 2003 the Governor found that the appeals had been submitted out of time. However, on 12 October 2004 the Regional Administrative Court quashed the Governor ’ s decision.

25. Subsequently, the Regional Inspector of the Construction Supervision became the competent authority to examine the appeal.

26. The applicants requested that the permit for the use of the commercial centre be declared null and void. On 29 August 2003 the Mazowiecki Regional Inspector of the Construction Supervision allowed that request. It found that the Mayor of Piastów had issued the permit without having obtained the necessary authorisation from the Pruszków District Sanitary Inspector. The latter authority had expressly informed the Mayor that due to the complexity of the case it would not be able to give its authorisation before 18 November 2002.

27. On 31 March 2004 the Chief Inspector of the Construction Supervision quashed the decision of the Mazowiecki Regional Inspector of 29 August 2003 and discontinued the proceedings before the first-instance authority.

28. On 16 December 2008 the Regional Inspector of the Construction Supervision quashed the Mayor ’ s decision of 21 October 2002 and remitted the case to the Piaseczno District Inspector of the Construction Supervision. The Regional Inspector found that the Mayor of Piastów had not given sufficient reasons for his decision. The Mayor had further failed to establish correctly the facts of the case and to inform all the parties concerned about his decision.

29. On 16 January 2009 the HIT company appealed against the decision to the Regional Administrative Court and requested the court to issue an interim order halting the enforcement of the decision of the Regional Inspector. The last hearing before the Regional Administrative Court took place on 22 February 2010. The court gave judgment. However, at the time of submitting their observations the Government were not in possession of the judgment.

30. At present the commercial c entre is owned by company T. It operates twenty ‑ four hours a day and seven days per week.

4. Proceedings concerning the level of noise

31. On 15 November 2002 the applicants complained to the Pruszków District Sanitary Inspector about the excessive levels of noise generated by the commercial centre. Their complaint was transferred to the Mayor of the Pruszków District as the competent authority to deal with it. On 16 May 2003 the Mayor of the District ordered company T. to prepare an environmental survey with regard to the hyp ermarket located in Piastów . On 15 March 2006 the Mayor of the District issued a decision fixing the maximum level of noise for the T. hypermarket. On 7 April 2006 the Mayor of the Pruszków District issued a decision obliging T. to limit the level of noise generated by the hypermarket. On appeal, the decision was quashed due to procedural errors. The applicants did not submit copies of any subsequent decisions.

B. Relevant domestic law

1. Relevant provisions of the Civil Code concerning exercise of ownership rights

32. Article 144 of the Civil Code provides as follows:

“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 and which go beyond the normal use arising from the socio-economic purpose of the immovable property and local relations.”

Pursuant to Article 222 § 2 of the Civil Code:

“The owner shall have the right to claim restituti on of his lawful position and a ce s s ation of infringements of the law, against a person who infringes his ownership otherwise than by depriving the owner of the actual control of the property in question.”

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).

2. The State ’ s liability in tort

(a) Provisions of the Civil Code applicable before 1 September 2004

33. Articles 417 et seq. of the Civil Code ( Kodeks cywilny ) provide for the State ’ s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:

“1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.”

(b) Provisions of the Civil Code applicable from 1 September 2004

34. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes ( Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw ) (“the 2004 Amendment”) entered into force. The relevant amendments were in essence aimed at enlarging the scope of the State Treasury ’ s liability in tort under Article 417 of the Civil Code – including the addition of a new Article 417 1 .

The amended Article 417 § 1 of the Civil Code reads as follows:

“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 [committed] in connection with the exercise of public authority.”

35. Following the 2004 Amendment, Article 417 1 § 2 reads in so far as relevant:

“Where damage has been caused by the delivery of a final ruling or a final decision, redress for such damage may be sought after their unlawfulness has been established in the relevant proceedings, except where provided otherwise by law.”

However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 applies to all events and legal situations that subsisted before that date.

3. Annulment of final administrative decision and related compensation claims under the Code of Administrative Procedure

36. Article 156 § 1 of the Code of Administrative Procedure (“the CAP”) ( 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.

37. Article 160 of the CAP 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.

38. This provision was repealed by the 2004 Amendment with effect from 1 September 2004 and replaced by new Article 417 1 § 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 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 administration authority that has declared a decision null and void or declared, pursuant to 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 compensation granted by a public administration authority referred to in § 4, may lodge a claim with a court of law within 30 days from the date of service of a decision given on that matter.

6. A claim for compensation shall be time-barred after 3 years from the date on which has become final the 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.”

39. 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 CAP 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 417 1 § 2 of the Civil Code which replaced Article 160 and rules for adjudicating compensation.

40. The resolution contains an extensive reasoning which, in so far as relevant, may be summarised as follows: Article 160 §§ 1,2,3 and 6 of the CAP 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 CAP after that date. In contrast, paragraphs 4 and 5 of Article 160, setting out the procedure for vindicating such claims, should be considered as no longer applicable. Consequently, a party seeking compensation under this provision should file an action directly with a civil court.

COMPLAINTS

41. The applicants complained that their right to respect for their private and family life and their home had bee n breached. They also alleged a breach of their right to the peaceful enjoym ent of their possessions. The applicants submitted that the Supreme Administrative Court in its judgment of 12 November 2002 (case no. IV SA 1373-1379/02) had held that the authorities had acted unlawfully when granting the construction permit. They were exposed to nuisance (noise, pollution and other inconveniences) originating from the commercial centre which had been built on the basis of the unlawful decisions.

42. The applicants further complained that they had had no remedy to ensure protection of their rights as owners of houses adjacent to the commercial centre. In particular, they had no possibility to compel the authorities to rectify significant breaches of law committed in the proceedings leading to the grant of the construction permit, as identified in the Supreme Administrative Court ’ s jud gment of 12 November 2002 (case no. IV SA 1373 ‑ 1379/02).

43. The applicants complained that the Supreme Administrative Court ’ s judgment of 7 December 2005 had violated their right to respect for their home and their property rights. In their view, that judgment had disregarded the findings of the same court in the judgment of 12 November 2002.

THE LAW

44. The applicants alleged that the circumstances of their case had disclosed a breach of Article 8 and of Article 1 of Protocol No. 1 to the Convention.

A. The Government ’ s submissions

45. The Government argued that the application was incompatible ratione personae since the applicants had lacked the status of victim. They submitted that this status implied that the violation of the Convention must have affected the applicants. The unlawful acts or omissions which were attributable to the State did not entitle any individual to claim to be a victim unless he was able to prove that he had been affected by the violation of his Convention rights. The Government maintained that the applicants ’ status as a party to the administrative proceedings concerning the adjacent property had been controversial from the beginning. The fact of being a party to the administrative proceedings did not entail that any Convention rights were automatically involved. The Government emphasised that none of the decisions or judgments invoked by the applicants had concerned their home or their private life and none of them had interfered with the peaceful enjoyment of their possessions. Thus, they contended that the existence of the commercial centre which had been allegedly unlawfully constructed on the adjacent land could not create per se a violation of the neighbours ’ right to the peaceful enjoyment of their possessions and their right to respect for their private and family life and home.

46. With reference to the alleged interferences as regards the unlawful construction of the commercial centre, the Government submitted that the applicants had failed to respect the six-month time-limit. The application was lodged on 3 July 2006, whereas the final judgment of the Supreme Administrative Court in respect of the challenged construction had been given on 12 November 2002. By this judgment the court quashed as unlawful the construction permit for a commercial centre issued by the Mayor of Piastów . In the subsequent proceedings in which the applicant s contested the discontinuation of the proceedings the final judgment had been given by the Supreme Administrative Court on 7 December 2005, and thus again outside the time-limit of six months.

47. Irrespective of the above objections, the Government argued that the applicants had not exhausted all the available remedies provided for by the Polish law. In this connection, they underlined the importance of the principle of subsidiarity. Moreover, they stressed that the proceedings in respect of the permit for use of the commercial centre had been still pending before the domestic authorities.

48. With regard to the complaints under Article 8 and Article 1 of Protocol No. 1 to the Convention the applicants had had at their disposal the following domestic remedies: 1) compensatory claim based on Articles 417 and 417¹ § 2 of the Civil Code (the State ’ s liability in tort); 2) claim for cessation of infringements of the applicants ’ ownership based on Article 144 in conjunction with Article 222 § 2 of the Civil Code; 3) compensatory claim for non-material damage based on Article 144 in conjunction with Article 448 of the Civil Code and Articles 23 and 24 of the same Code; and 4) compensatory claim based on Article 415 of the Civil Code.

49. Firstly, the applicants could have claimed compensation under Articles 417 and 417¹ § 2 of the Civil Code providing for the State ’ s liability in tort for the alleged damage sustained by them as a result of the issuance of the planning permission contrary to the law. The amendments to the Civil Code which entered into force on 1 September 2004 had been aimed at extending the scope of the State ’ s l iability for tort under Article 417 of the Civil Code, including the a ddition of a new Article 417¹ § 2. The applicants could have sought compensation from the administrative authorities claiming that they had suffered damage since the unlawfulness of the planning permission concerning the commercial centre had been already established by the decision of the Board of Appeal. This authority ruled on 18 June 2007 that the planning permission had been null and void as it had been issued in breach of the local development plan.

50. The Government stressed that the applicant s had invoked exclusively the errors committed by the administrative authorities in the proceedings concerning the grant of the planning permission and of the construction permit in respect of the plot adjacent to their property. None of the administrative or judicial authorities which had reviewed the legality of the relevant decisions given in those proceedings was required to examine whether the applicants had incurred any damage or whether their rights had been violated.

Having regard to the fact that the administrative decision declaring the planning permission null and void was issued after the 2004 amendments to the Civil Code on the State ’ s liability for the unlawful decisions of the administrative authorities had entered into force the applicants were entitled to take advantage of the said remedies. The Government emphasised that in the light of the extensive case-law of the domestic courts there was no doubt that the unlawful actions of the administrative authorities were covered by Articles 417 and 417¹ § 2 of the Civil Code. Moreover, the State ’ s liability in tort did not depend on the existence of fault on the part of a given official. As a result, the possibility of seeking compensation both for pecuniary and non-pecuniary damage under the above-mentioned provisions of the Civil Code was additionally facilitated.

51. Next, the Government argued that the applicants should have filed a claim under Article 144 in conjunction with Article 222 § 2 of the Civil Code in respect of any disturbances affecting their right to respect for their home, such as noise. When examining such a claim, the civil court had a wider margin of appreciation than the administrative authorities in that it was obliged to take into account not only the binding provisions of the law, but also the socio-economic designation of the land, the principles of the community life and the local relations. In particular, the civil court assessed whether the alleged interferences with the exercise of property rights had transgressed an “average standard” ( przeciętna miara ).

The statutory law determined that the owner should abstain from acts which could disturb the use of an adjacent real estate. A person who claimed that his private life, his home or his property rights had been interfered with as a result of the use of an adjacent real estate in excess of its normal use prescribed in Article 144 of the Civil Code could claim cessation of infringements of his rights and the restitution of his lawful position.

52. Furthermore, the Government argued that if the applicants had sustained damage as a result of the existence or functioning of the commercial centre contrary to Articles 144 and 222 of the Civil Code they should have claimed compensation under Article 415 of the Civil Code and compensation for non-pecuniary damage under Article 448 of the same Code from the owner of the adjacent property. Additionally, the applicants could seek protection of their personal rights such as health and inviolability of home under Articles 23 and 24 of the Civil Code and, further, seek compensation for their infringement.

In the light of the above submissions, the Government averred that the applicants had had at their disposal effective domestic remedies for seeking protection of their rights; however, they had failed to resort to them.

53. With regard to the merits of the complaint under Article 8, the Government argued that the applicants had not submitted either to the domestic authorities or to the Court any documents showing that their private and family life as well as their home had been adversely affected. The Government emphasised that none of the decisions or judgments invoked by the applicants had concerned their private life or their home and none of them had interfered with the peaceful enjoyment of their possessions. Furthermore, the applicants had not provided any information showing that they had ever initiated any administrative or other proceedings concerning the issue of noise, pollution etc. Those matters fell within the competence of the sanitary inspector and the Government did not possess any information that the applicants had ever submitted to the inspector any complaint about the excessive level of noise or pollution affecting their property.

54. They underlined that the heart of the case concerned the issue of the legality of the construction on the adjacent plot and this did not per se violate the applicants ’ right to respect for their private and family life and their home. In the absence of such findings it could not be established that the State failed to take reasonable measures to secure the applicants ’ rights under Article 8 and therefore no issue under this provision arose in the case. With regard to the merits of the complaint under Article 1 of Protocol No. 1 to the Convention, the Government argued that it did not raise a separate issue from the one under Article 8 of the Convention.

B. The applicants ’ submissions

55. The applicants maintained that they had exhausted all domestic remedies. They averred that they had had no possibility to lodge claims under Articles 417 and 417¹ § 2 of the Civil Code on account of the failure of the administrative authorities to respect the time-limits for the issuance of their decisions. With regard to the claims based on Article 144 in conjunction with Article 222 § 2 of the Civil Code, the applicants argued that the use of this remedy would have been ineffective. They referred to the fact that it was difficult to establish which entity had been responsible for emissions and excessive noise because over the period of ten years there had been many changes and currently one company owned the land and another company held the lease of the hypermarket. They submitted that they had considered the administrative proceedings to be the only manner of ensuring the effective protection of their rights. For the same reasons they disagreed as to the possibility of making use of other remedies referred to by the Government. In their view, the Government failed to establish that the remedies referred to by them had been effective and accessible in theory and in practice at the material time.

56. The applicants admitted that none of the decisions of the domestic court had concerned their property rights, their home or their private life. However, the erroneous decisions of the national authorities which had allowed the construction of the hypermarket in the direct vicinity of their home had caused nuisance (noise and other emissions) and at times had made the peaceful enjoyment of their possessions and the enjoyment of their rights under Article 8 impossible. They referred in particular to the excessive noise generated by the hypermarket which was capable of penetrating the interior of their home, including at night. The commercial complex, open 24 hours a day 7 days a week, has been operating for eight years without a valid permit for the use of the building.

57. The applicants argued that the commercial centre had been constructed on the basis of the erroneous administrative decisions. However, they had had no legal remedies to ensure the protection of their rights as persons living in the direct vicinity of the commercial centre. In their view, the Supreme Administrative Court ’ s judgment of 7 December 2005 had grossly violated their right to respect for their private and family life and their home as well as their property rights. They strongly objected to the fact that the hypermarket had been constructed and has operated despite gross infringements of the law committed by the administrative authorities.

58. As the owners of property located directly next to the commercial centre, the applicants had been unquestionably exposed to nuisance from it in the form of noise, air pollution and vibrations. The loading ramp and the greatest concentration of fans were located in the direct vicinity of their home. There was a constant nuisance (noise) generated by the loading machinery and delivery trucks day and night, seven days a week.

59. This situation had amounted to a violation of their right to respect for their private and family life and their home as well as their property rights. They stressed that the HIT hypermarket should have been qualified as harmful to the environment and human health due to its size, type (operating non-stop) and parameters (total area of 35,085 m2). In their view, the hypermarket had not met the legal requirements with regard to the protection of the environment and human health. Nonetheless, th e HIT company was granted the permit for its use which enabled it to run the business despite the ongoing dispute and the risk to the environment and human health. Such situation has been lasting so far for eight years. In their view, Article 8 was applicable because of the direct impact of the lack of adequate action of the administrative authorities and their erroneous decisions which had allowed the construction of the hypermarket and the nuisances generated by it.

C. The Court ’ s assessment

However, the Court finds it unnecessary to deal in detail with each and every objection raised by the Government since it considers that the application 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 ... .”

61. The Court recalls that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court a s concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The Court cannot emphasise enough that it is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see, Demopoulos and Others v. Turkey ( dec .) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04 , § 69, ECHR 2010; and Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports 1996 ‑ IV ).

62. In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement. The mere doubts regarding the effectiveness of the relevant remedy, if not supported by material evidence, in particular examples from the established domestic practice, are not sufficient to absolve an applicant from his duty under Article 35 § 1 ( ibid .; see also, Pikielny and Others v. Poland ( dec .), no. 3524/05, 18 September 2012, § 57).

63. The Court notes that the applicants complain first about the breaches of the law committed by the administrative authorities in the proceedings concerning the grant of the planning permission and the grant of the construction permit. Secondly, they complain about the various forms of nuisance generated by the commercial centre and its adverse impact on their rights to respect for their private life and their home as well as on the enjoyment of their possessions. The Government referred to a range of legal remedies that could have been used by the applicants.

64. As a preliminary remark, the Court observes that the subject-matter of the administrative proceedings impugned by the applicants was the legality of the planning permission and of the construction permit issued by the authorities. Those proceedings did not concern, as pointed out by the Government and admitted by the applicants, the issue whether the applicants had sustained damage as a result of the issuance of those decisions and whether any of their rights had been interfered with. The Court considers that in the circumstances of the case the applicants could have obtained suitable redress by availing themselves of some of the remedies referred to by the Government.

65. With regard to the unlawful administrative decisions and in so far as they caused adverse consequences for the applicants ’ rights, the applicants could have pursued a compensation claim for damage resulting from the issuance of the defective administrative decision under Article 160 of the Code of Administrative Procedure (which was replaced by Article 417¹ § 2 of the Civil Code), namely the decision of the Mayor of Piastów of 28 May 1999 granting planning permission for the construction of the commercial centre. This decision was annulled by the decision of the Warsaw Local Government Board of Appeal of 18 June 2007 pursuant to Article 156 § 1 (2) and (7) of the CAP. The decision on annulment of the planning permission opened for the applicants the possibility of seeking compensation under Article 160 of the CAP (which was subsequently replaced by Article 417¹ § 2 of the Civil Code) from the Mayor of Piastów .

67. The applicants have not shown that the remedies advanced by the Government were inadequate or ineffective. The Court is not persuaded by the applicants ’ argument about the alleged difficulties in using the civil remedies on account of the change in the ownership of the commercial centre or on account of the delays in the issuance of the impugned decisions. Nor can it agree with the applicants that the administrative proceedings referred to by them constituted the only manner for the effective protection of their rights.

68. 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.

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

For these reasons, the Court , by a majority

Declares the application inadmissible.

Fatoş Aracı Ineta Ziemele Deputy Registrar President