FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 70596/01 by Henryk KANIECKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 23 September 2008 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Ljiljana Mijović , David Thór Björgvinsson , Ján Šikuta , Päivi Hirvelä , Mihai Poalelungi , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 22 September 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applic ant, Mr Henryk Kaniecki, is a Polish national who was born in 1950 and lives in Gnojno. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz 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.

On 23 September 1991 the Kielce Governor ( Wojewoda Kielecki ) granted the applicant ’ s neighbour permission to build a fish pond. The applicant submitted that the pond was built in breach of the permit and that it dammed the water on his plot of land. In consequence, he could not use his land for agricultural purposes.

The applicant appealed against this decision but the appeal was finally dismissed on 11 February 1993 by the Supreme Administrative Court ( Naczelny SÄ…d Administracyjny ).

On 14 April 1993 the Kielce Governor initiated, upon the applicant ’ s request, proceedings for annulment of the permit.

On 29 April 1993 the Kielce Governor ordered the applicant ’ s neighbour to carry out work on the pond. The applicant appealed.

On 7 September 1993 the Minister of the Environment ( Minister Ochrony Åš rodowiska ) quashed the impugned decision and remitted the case.

On 3 December 1993 and 29 August 1994 the Kielce Governor held hearings in the case.

On 6 September 1994 the Kielce Governor dismissed the applicant ’ s request for the permit to be annulled.

The applicant appealed, but on 15 January 1995 the Minister of the Environment upheld the decision.

The applicant lodged a complaint with the Supreme Administrative Court .

On 17 December 1996 the Supreme Administrative Court quashed the decision and remitted the case.

On 12 March 1997 the Kielce Governor held a hearing and on 26 March 1997 he gave a decision in which he again refused to annul the permit.

The applicant ’ s appeal was dismissed on 9 September 1997 by the Minister of the Environment.

On 9 October 1997 the applicant lodged a complaint with the Supreme Administrative Court .

On 17 December 1999 the Supreme Administrative Court quashed the impugned decision and remitted the case.

On 10 May 2000 the Kielce Governor transferred the case to the Mayor of Busko-Zdrój ( Starosta ). On 8 September 2000 an expert inspected the pond.

On 22 May 2000 the applicant wrote a letter to the Kielce Governor about the manner in which the authorities had been handling his case and submitted that a further delay in the proceedings could result in him lodging a case with the European Court. On 6 June 2000 the Governor replied to his letter, apologising for the fact that the proceedings had been lengthy. However, he considered that the delays had occurred at the judicial stage before the Supreme Administrative Court .

On 27 July 2000 the Mayor of Busko held a hearing.

On 11 September 2000 the applicant complained to the Mayor of Busko about the length of the proceedings.

On 17 and 23 January 2001 the Mayor held hearings. On 21 May 2001 an expert inspected the pond.

On 28 February 2002 the Mayor of Busko gave a decision granting permission to keep the pond and to dam the water.

The applicant appealed and on 9 May 2002 the Kielce Governor quashed the impugned decision and remitted the case.

On 23 August 2002 the Mayor of Busko gave a decision granting permission as before.

On 11 October 2002 the Świętokrzyski Governor again quashed the decision and remitted the case.

On 28 October 2002 the Mayor held a hearing.

On 11 March 2003 the Mayor of Busko carried out an inspection of the property.

It is impossible to establish the course of the proceedings thereafter.

B. Relevant domestic law

Under Article 35 of the Code of Administrative Procedure of 1960 (“the Code”) an administrative authority should give a decision on the merits of a case within two months. If th at time-limit ha s 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.

Pursuant to Article 37 § 1, 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 p revent future such delays .

Until 1 October 1995 , under Article 216 of the Code of Administrative Procedure, a party to administrative proceedings could, at any time, lodge a complaint with the Supreme Administrative Court about the fact that an administrative authority had failed to issue a decision.

On 1 October 1995, the Law of 11 May 1995 on the Supreme Administrative Cour t (“the 1995 Act”) entered into force. U nder section 17 of the 1995 Act the Supreme Administrative Court was competent to examine complaint s of inactivity on the part of an authority.

Section 26 of the Act provide d :

“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.”

Section 34 of the 1995 Act set out the requirement of the exhaustion of available remedies before lodging a complaint with th e Supreme Administrative Court . Accordingly, a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a high er level, pursuant to the above ‑ mentioned Article 37 of the Code of Administrative Procedure.

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 authori ty concerned. If the authority di d not compl y 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 complaint s about inacti vity 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 .

COMPLAINT

The applicant complained under Articles 6 § 1 and 13 of the Convention about the unreasonable length of the administrative proceedings .

THE LAW

The applicant complained that the length of the administrative proceedings in his case had exceeded the reasonable time requirement. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention.

The Government maintain ed that the applicant had failed to exhaust domestic remedies, as required under A rticle 35 § 1 of the Convention, in particular in that he ha d failed to pursue remedies designed to counteract the inactivity of the administrative authorities.

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 ...”

The applicant contested the Government ’ s submissions in general terms.

The Court first notes that the proceedings commenced on 14 April 1993 . However, the period to be taken into considera tion began only on 1 May 1993, when the recognition by Poland of the right of i ndividual petition took effect.

The Court further reiterates that the purpose of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford Contracting States the 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 , and Bukowski v. Poland (dec.), no. 38665/97, 11 June 2002).

The Court has already examined the combination of the administrative remedies in Poland which are designed to accelerate the process of obtaining an administrative decision (see Bukowski , cited above; Mazurek v. Poland (dec), no. 57464/00, 7 September 2004; Ko łodziej v. Poland (dec), no 47995/99, 18 October 2005; and Oledzki and Oledzka v Poland (dec), no. 13715/03 , 4 January 2008). Accordingly, in the present case the Court observes that it was open to the applicant to complain to a higher authority under Article 37 of the Code of Administrative Procedure alleging inactivity on the part of the administrative body dealing with the case. In cases where an authority continuously fails to act, an applicant has the possibility to obtain – through the expedited procedure laid down in section 26 of the 1995 Act – a ruling on his rights or obligations directly from the Supreme Administrative Court .

However in the instant case, the applicant did not make use of the remedy under Article 37 of the Code of Administrative Procedure. While this remedy was open to the applicant during the entire length of the proceedings, its use would have been particularly justifiable after the Supreme Administrative Court remitted the case to the administrative authorities on 17 December 1999 because the case was subsequently pending before the Mayor of Busk between 10 May 2000 and 28 February 2002. Moreover, there is no evidence that the applicant complained about the Mayor ’ s inactivity after the case was again remitted to the latter on 28 October 2002. In this connection the Court observes that the applicant failed to provide the Registry of the Court with details of the subsequent course of the proceedings. He merely submitted that the issue of the fish pond had not been resolved and that his neighbours had been granted a new building permit.

The Court would agree that four years of the total delay, that is, between January 1995 and 17 December 1996 and between October 1997 and 17 December 1999, should be attributed to the Supreme Administrative Court and that at the material time there had been no effective remedy for delays occurring before that court (see Olesiński v. Poland , no. 12550/02, § 28 , 18 December 2007 ) . However, as pointed out above, the proceedings lasted in total at least ten years and other substantial periods of inactivity are to be attributed to the Mayor of Busko. Nevertheless, the applicant did not make any attempt to urge that authority to issue a decision within the time-limits provided for in Articles 35 and 36 of the Code. The failure on the part of the applicant to complain about the inactivity of that administrative authority is even more striking if it can be understood from his submissions that the Mayor of Busko failed to deal with his case after March 2003.

Accordingly, the Court concludes that the Government ’ s preliminary objection should be allowed (see Oledzki and Oledzka, cited above ) .

It follows that the application is 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.

For these reasons, the Court by a major ity

Declares the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President