FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38665/97 by Eugeniusz BUKOWSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 11 June 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mr J. Makarczyk , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 19 March 1997,

Having regard to its partial decision of 1 June 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Eugeniusz Bukowski , is a Polish national, who was born in 1931 and lives in Warsaw, Poland.

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

A. Particular circumstances of the case

1. Proceedings relating to the applicant’s claim for damages

a) Facts before 1 May 1993

On 15 March 1986 the applicant sued for damages the Warsaw- Mokotów District Office ( Urząd Dzielnicowy ), the Warsaw Architecture Office ( Urząd Stołecznej Architektury ) and three of his neighbours, A.H., H.H. and T.H., in the Warsaw Regional Court ( Sąd Wojewódzki ). As regards the first two defendants, the applicant sought damages arising from the fact that they had issued several wrong administrative decisions (which, as the applicant claimed, had resulted in his having incurred serious financial loss), or because  they had failed to issue certain decisions, even though obliged to do so by law. As regards the neighbours, the applicant sought damages for financial loss resulting from the fact that, during the construction of his house, they had repeatedly interfered with the work, in particular by destroying the work done, uttering threats against or otherwise verbally abusing the applicant and his workers, or physically compelling them to stop the work. In that connection, the applicant relied on a judgment of the Warsaw District Court of 13 June 1983, convicting his neighbours on two counts of unlawfully compelling the applicant to stop the work on his house and one count of assault. The applicant sought damages amounting in total to 1,000,000 old Polish zlotys (PLZ).

On 4 January 1988 the applicant withdrew his claims against the first two defendants. Since then, the proceedings have been directed only against his neighbours A.H., H.H. and T.H.

Between 1988 and March 1992 the Regional Court listed 8 hearings. It also ordered that three reports from construction experts be obtained so as to assess the value of the financial loss sustained by the applicant.

The last of those reports was submitted to the court in December 1992.

b) Facts after 1 May 1993

A hearing was held on 29 September 1993. The court heard evidence from Z.S., an expert.

On 6 October 1993 the applicant filed a pleading contesting the expert’s conclusions. Z.S. submitted a fresh report on 28 November 1993. On 21 January 1994 the applicant challenged that report, maintaining that it was of very little evidentiary value since the expert had failed to view the interior of the house. In conclusion, the applicant asked the court to give a ruling on his claim, stressing that the length of the proceedings had to date exceeded 8 years.

On 20 April 1994 the parties filed their pleadings with the court. They contested the most recent expert report.

Subsequently, the applicant informed the court that, given the highly unsatisfactory quality of Z.S.’s report, he would not pay the expert fees to the court. On 21 October 1994 the court ordered that enforcement proceedings be instituted against the applicant with a view to collecting the fees.

On 18 November 1994 the court ordered that fresh evidence be obtained from Z.S. and that both parties be required to pay the expert’s fees.

In December 1994 the presiding judge stepped down and the case was referred to another judge.

On 27 February 1995 the applicant complained to the President of the Warsaw Court of Appeal ( Sąd Apelacyjny ) about – in his words – “an exceptional delay in the proceedings”. In a letter of 26 April 1995 the President admitted that the delay in the proceedings had indeed been caused by the fact that the Regional Court had failed to keep the proceedings moving along procedural lines. He apologised to the applicant in the name of the administration of justice.

On 16 May 1995 the applicant complained to the President of the Supreme Court ( Sąd Najwyższy ) about the inactivity of the Warsaw Regional Court. On 13 June 1995 the President referred the complaint to the Minister of Justice, an authority responsible for monitoring the conduct of court proceedings. He observed, however, that despite the case having already been brought under the Minister’s supervision, since 29 September 1993 no hearing had taken place before the Regional Court.

Later, on unknown dates, the applicant filed three further complaints about the excessive length of the proceedings with the President of the Warsaw Court of Appeal. In a letter of 4 August 1995 the President again apologised to the applicant and admitted that the monitoring of the conduct of the proceedings had not been very successful. He also informed the applicant that the President of the Warsaw Regional Court had been instructed to take steps in order to accelerate the proceedings.

On 4 October 1995 the court held a hearing and served copies of Z.S.’s new report on the parties. Since the inflation rate and purchasing power of the Polish currency had meanwhile changed substantially, the court ordered the applicant to state the exact amount of damages claimed in the light of current circumstances.

On 11 October and 17 October 1995 the applicant filed two pleadings with the court, commenting on evidence gathered during the proceedings. He also stated that the current total value of his claim was 355,585.59 new Polish zlotys (PLN).

On 6 March 1996 the court held a hearing. It ordered the applicant to pay court fees of PLN 14,342 for having lodged, in the court’s view, a new and higher claim, and on pain of the statement of claim being returned to him.

On 18 March 1996 the applicant filed a pleading and explained that he had paid the court fees as early as March 1986, when he had submitted his claim for adjudication. He added that the court itself was entirely responsible for the procrastination in the proceedings, the length of which had in the meantime exceeded 10 years. During this time both the inflation rate and the purchasing power of the Polish currency had changed on several occasions. The applicant stressed that there was no reason to place an extra financial burden on him, in particular in the form of new and substantial court fees.

On 24 March 1996 the applicant appealed against the order of 6 March 1996 whereby the court fees had been levied on him.

On 31 May 1996 the Warsaw Court of Appeal quashed the contested order as being premature. It found that the lower court had misconstrued the applicant’s pleading and ordered it to obtain from the applicant a clear statement of the amount currently claimed.

In the meantime, on 5 May 1997 the applicant had complained to the court about the lack of progress in the litigation. He stressed that as of that date the length of the proceedings was about 12 years, but his claim was still far from being determined. He repeated that he had not increased, and was not going to increase, the value of the claim.

At the hearing which was held on 26 May 1997 the court ordered Z.S. to submit a fresh report and to determine the current value of various items included in his report of 28 February 1995. That order was a consequence of the fact that, since the beginning of 1995, the inflation rate and the purchasing power of the Polish currency had again changed considerably.

On 27 August 1997 the court held the next hearing. It served copies of the expert report on the parties and ordered the applicant to submit a precise statement of his claims and to specify the circumstances giving rise to the defendants’ fault as well as the value of the damage sustained by him on account of their interference with the construction of his house. On 11 September 1997 the applicant filed his pleading with the court.

On 9 September 1997, the applicant lodged a complaint with the Supreme Court, submitting that the length of the proceedings in his case had exceeded all reasonable limits. On 22 September 1997 the Case-law Department of the Supreme Court informed him that he should address his complaints to the Minister of Justice, who was responsible for monitoring the conduct of the proceedings.

On 3 October 1997 the Warsaw Regional Court ordered that evidence from yet another construction expert be obtained in order to estimate the costs incurred by the applicant in connection with the impediments to the construction works, works which had been interrupted from 1980 to 1983. The court also found it necessary to establish the amount of income from a lease which the applicant had lost due to the delay in the construction of the house caused by the defendants.

On 20 December 1997 K.S., an expert, submitted his report to the court.

On 26 March 1998 the applicant filed his comments on that report with the court. He drew the court’s attention to certain inconsistencies in the expert’s findings but conceded that, in principle, the report was satisfactory.

On 20 April and 24 June 1998 the Regional Court held hearings.

On 18 August 1998 the applicant filed a pleading, commenting on all the expert reports which had to date been obtained by the court.

On 14 September 1998 the court held a hearing and heard evidence from the expert.

On 15 October 1998 the applicant submitted yet another pleading to the court, pointing out that K.S. had based his findings on inaccurate indexes of the value of the construction works and had, therefore, come to wrong and unfair conclusions on the assessment of his loss.

On 2 November 1998 the applicant submitted his comments on the value of certain construction works, as assessed by K.S. He further asked the court to proceed with his case and to give “any ruling terminating the proceedings that have so far lasted 13 years”.

On 26 November 1998 the applicant again asked the court to give a ruling.

The next hearing took place on 8 February 1999. The court heard evidence from K.S. and adjourned the proceedings to enable the expert to prepare a supplementary report.

At a further hearing, which was held on 26 April 1999, the court ordered K.S. to prepare yet another supplementary report.

Subsequent hearings were held on 25 August and 22 November 1999. The court heard evidence from the expert and, on 22 November 1999, once again ordered the applicant to specify his claims.

On 10 January 2000 the applicant filed a pleading in which he stated that he had already specified his claims on three occasions.

On 15 May 2000 the court held a hearing, but then adjourned the proceedings sine die .

The next hearings were listed for 10 April and 5 July 2001 and, subsequently, for 14 February and 14 May 2002.

The proceedings are pending in the court of first instance.

2. Proceedings relating to the issue of a building permit

On 9 October 1964 the Warsaw- Mokotów District Office issued a decision permitting the applicant to convert a building located on his land into a laundry. That decision obliged the applicant to demolish the building in question by 31 December 1970.

However, he did not do so. On 24 August 1992 the applicant asked the Mayor ( Burmistrz ) of Warsaw- Mokotów to grant him and his wife a building permit to enable them to convert the laundry into a dwelling. He also asked the Mayor to take into account another building permit, which had been issued to his neighbours on 2 July 1991. The applicant contested the latter decision, submitting that it had been issued in breach of the law and had affected the potential development of his land.

On 23 December 1992 the Mayor refused to grant the permit. He found that the decision of 9 October 1964 had been final and had settled definitively the way in which the applicant’s land could be developed.

On 6 January 1993 the applicant appealed against that decision, contesting its legality.

On 10 October 1996 the Warsaw Governor ( Wojewoda ) dismissed the appeal. On 28 October 1996 the applicant lodged a further appeal with the Supreme Administrative Court ( Naczelny SÄ…d Administracyjny ), challenging the legal basis of both decisions.

On 9 September 1997 the Supreme Administrative Court dismissed the applicant’s appeal as being unfounded.

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.

COMPLAINT

1. The applicant complains under Article 6 § 1 of the Convention that the length of the proceedings relating to his claim for damages, which have been pending in the Warsaw Regional Court since 1986, exceeded a “reasonable time”.

2. He also alleges a breach of Article 6 § 1 in that the length of proceedings relating to the issue of a building permit was excessive.

THE LAW

1. The applicant’s first complaint relates to the length of the proceedings concerning his claim for damages. Those proceedings began on 15 March 1986 and are still pending in the Warsaw Regional Court. They have therefore already lasted 16 years, 2 months and 27 days, of which 9 years, 1 month and 11 days fall within the Court’s jurisdiction ratione temporis .

According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

2. The second complaint concerns the length of the proceedings relating to the issue of a building permit.

The Government maintain that the applicant has 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 state that the applicant did not attempt to pursue remedies designed to counteract the inactivity of the administrative authorities.

In their submission, the applicant could have made an appeal under Article 37 of the Code of Administrative Procedure to the Minister of Construction and Town and Country Planning, asking the Minister to order the Warsaw Governor to issue a decision terminating the proceedings. Had that remedy been unsuccessful, he could, under section 26 of the 1995 Act, have lodged a complaint against the inactivity of the administrative authorities with the Supreme Administrative Court and sought a judgment ordering the authorities to issue a decision without any further delay.

The applicant concedes that he did not make use of any of those remedies. He further submits that under domestic legislation as applicable before 11 May 1995, the date of entry into force of the 1995 Act, a party to administrative proceedings could, under Article 216 of the Code of Administrative Procedure, lodge a complaint about the inactivity of the relevant administrative authority with the Supreme Administrative Court. However, the law did not provide for any means whereby he could enforce a favourable decision of that court.

As to the possibility of making a complaint under section 26 of the 1995 Act, the applicant maintains that such a remedy cannot be considered effective for the purposes of Article 35 § 1 of the Convention. In his opinion, that complaint is merely a petition devoid of legal effect as the only result that a claimant may obtain is a declaration obliging an administrative authority to issue a decision.

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. The States must have a chance to put matters right through their own legal system before having to answer before an international body for their acts. In consequence, complaints intended to be brought subsequently before the Court in Strasbourg should first have been made – at least in substance – to the appropriate domestic body. In that way Article 35 § 1 obliges the applicant to try available remedies that relate to the breach alleged by him. Only in certain exceptional circumstances may he be absolved from that obligation (see, among many other examples, Selmouni v. France [GC], §§ 74-76, ECHR 1999-VII; H.D. v. Poland (dec.), no. 33310/96, 7 June 2001 (unreported); and appl . no. 28249/95 ( Kreuz v. Poland), Commission’s dec. 9 April 1997, unpublished).

Turning to the facts of the present case, the Court observes that the applicant has not contested the availability of the remedy relied on by the Government. He states, on the other hand, that any such remedy would have been ineffective.

The Court recalls that, in the context of Article 13 and remedies for excessive length of proceedings, it has already held that such a remedy, or the aggregate of remedies, in order to be “effective” must be capable either of preventing the alleged violation of the right to a “hearing within a reasonable time” or its continuation, or of providing adequate redress for a violation that had already occurred (see, mutatis mutandis , Kudła v. Poland, [GC], no. 30210/96, § 158 et seq. ECHR 2000-X).

Examining the instant case in the light of these criteria, the Court notes that in Poland a party to administrative proceedings may make an appeal under Article 37 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. In cases where an authority continuously fails to do so, a party still has an opportunity 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.

Having regard to the criteria laid down in its case-law, and more particularly to the Kudła judgment cited above, the Court concludes that the combination of the remedies advanced by the Government, remedies which are designed to accelerate the process of obtaining an administrative decision, could have enabled the applicant to put the issue of the length of the proceedings in question before the national authorities and to seek a decision terminating those proceedings “within a reasonable time”.

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

It follows that the remainder of 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

Declares admissible, without prejudging the merits, the applicant’s complaint relating to the excessive length of the proceedings for damages instituted on 15 March 1986 before the Warsaw Regional Court;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President