FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39262/98 Stanisław and Zdzisława MARCINKOWSCY

against Poland

The European Court of Human Rights (Fourth Section), sitting on 13 November 2003 as a Chamber composed of:

Mr M. Pellonpää , President , Mrs V. Strážnická , Mr M. Fischbach , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 15 October 1997,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Stanis ł aw and Mrs Zdzisława Marcinkowscy, are Polish nationals who were born in 1945 and 1940 respectively. They are married and live in Krakow, Poland. They are represented before the Court by Mr Z. Cichoń, a lawyer practising in Krakow, Poland.

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

A. Particular circumstances of the case

1. Facts prior to 1 May 1993

On 10 July 1988 the applicants applied to the Kraków Local Council ( Dzielnicowa Rada Narodowa ) for an allocation of a flat in which they had been living since 1953.

On 28 April 1989 the Head of the Kraków-ÅšródmieÅ›cie Local Office ( Kierownik WydziaÅ‚u Spraw Lokalowych UrzÄ™du Dzielnicowego Kraków ‑ ÅšródmieÅ›cie ) dismissed the application. The applicant appealed against this decision.

In the meantime, the applicants lodged complaints about the inactivity of the administrative authorities.

On 22 October 1991 the Head of the Housing Division of the Kraków Municipal Office ( Dyrektor Wydziału Mieszkaniowego Urzędu Miasta Krakowa ) refused to allocate the flat to the first applicant. The applicants appealed.

On 16 January 1992 the Krakow Self-Government Board of Appeal ( SamorzÄ…dowe Kolegium OdwoÅ‚awcze ) quashed the impugned decision and remitted the case for re ‑ examination.

2. Facts after 30 April 1993

On 25 May 1993 the Mayor of Kraków ( Prezydent Miasta Krakowa ) stayed the proceedings. The applicants appealed against this decision.

On 19 April 1994 the Krakow Self ‑ Government Board of Appeal resumed the proceedings.

On 21 July 1994 the Head of the Housing Division of the Kraków Municipal Office refused to allocate the flat to the first applicant. The applicants appealed against this decision.

On 9 November 1994 Kraków Self-Government Board of Appeal quashed the impugned decision and discontinued the proceedings. The applicants lodged a complaint with the Supreme Administrative Court ( Naczelny Sąd Administracyjny).

On 24 November 1995 the Supreme Administrative Court quashed the both impugned decisions of 21 July and of 9 November 1994.

On 19 July 1996 the Head of the Housing Division of the Kraków Municipal Office discontinued the proceedings concerning the allocation of the flat to the applicants. The applicants appealed.

On 17 October 1996 the Kraków Self ‑ Government Board of Appeal dismissed their appeal.

B. Relevant domestic law

Article 35 of the Code of Administrative Procedure lays down time ‑ limits ranging from 1 month to 2 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. 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 to 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 preventing future such delays be applied.

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

On 1 October 1995, when a new Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) took effect, Article 216 of the Code of Administrative Procedure was repealed.

Under section 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint against inactivity on the part of an authority obliged to issue an administrative decision.

Section 26 of the Law provides:

“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 Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question.

THE LAW

The applicants’ complaint relates to the length of the proceedings, which began on 10 July 1988 and ended on 17 October 1996. They therefore lasted eighth years out of which about three-and-a-half years falls within the Court’s jurisdiction ratione temporis .

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

This 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...”

In this respect, the Government underline that the applicants did not attempt to pursue domestic remedies with respect to their complaint about the length of the proceedings. In particular, they could have lodged an appeal to the higher authority under Article 37 § 1 of the Code of Administrative Procedure or to the Supreme Administrative Court.

The applicants claim that they made an appeal alleging inactivity on the part of the Krakow-Śródmieście Local Office in 1989. Moreover, in 1990 they lodged a complaint with the Supreme Administrative Court about the inactivity of the authorities. The applicants acknowledge that subsequently they did not make use of these remedies.

The Court first notes that it cannot examine the question of what were the effects of the applicants’ complaints about the inactivity of the relevant authority since these complaints were made before 1 May 1993, which is the date on which the declaration whereby Poland recognised the right of individual petition took effect. It follows that these facts fall outside the Court’s jurisdiction ratione temporis.

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, Bukowski v. Poland (dec.), no. 38665/97, 11 June 2002, and Futro v. Poland (dec.), no. 51832/99 , 3 June 2003).

The Court observes that the applicant has not contested the availability of the remedy relied on by the Government.

Examining the instant case, the Court notes that nothing prevented the applicants from making use of that remedy after 1 May 1993. They could have made an appeal 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 Articles 35 and 36 of that Code. They further had an opportunity to obtain – through the expedited procedure laid down in Article 26 of the 1995 Act – a ruling on their rights or obligations directly from the Supreme Administrative Court.

Having regard to the criteria laid down in its case-law, the Court holds that the Government’s objection should be allowed (see, Bukowski v. Poland , 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 unanimously:

Discontinues the application of Article 29 § 3 of the Convention;

Declares the application inadmissible.

Michael O’Boyle Matti Pellonpää Registrar President