FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33777/96 by Andrzej URBA Ń CZYK against Poland

The European Court of Human Rights (Fourth Section) , sitting on 28 May 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 2 September 1996,

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 deliberated, decides as follows:

THE FACTS

The applicant,  Andrzej Urba ń czyk, is a Polish national, who was born in 1943 and lives in Częstochowa .

A. The circumstances of the case

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

By a decision of 3 April 1979 the property of the applicant’s predecessors in title was expropriated. The property comprised a plot of land located in Częstochowa , at 30 Wieluńska Street (plot No. 30). A house located on this plot was later demolished.

On 20 October 1987 the Częstochowa Municipal Architect issued a permit, authorising Z.M., an owner of a furniture repair workshop leasing premises situated on an adjacent plot (No. 28), to modernise the premises by, inter alia , fitting windows and a door in the boundary wall between the former property of the applicant’s predecessors in title and plot No. 28. On an unspecified later date Z.M opened a furniture shop on this site.

By a decision of the Częstochowa Municipal Council of 6 March 1990 the property of the applicant’s legal predecessors was returned to him as the aim of the expropriation - the construction of an apartment building - had not been realised.

On 10 January 1992 the applicant requested the Częstochowa Governor to declare the decision of 20 October 1987 null and void. On the same day the applicant also requested the Częstochowa Municipal Department of Architecture and Land Development to grant him planning permission for the construction of an apartment house on his plot (No. 30).

On 2 February 1992 the Department granted the applicant preliminary planning permission.

In a letter of 23 April 1992 the Department informed the persons leasing the plot at 28 Wieluńska Street that their objections against the preliminary building permission given to the applicant were unfounded, and that their plot had to be used in a manner consistent with the applicant’s property rights to plot No. 30. It was further stated that the preliminary permission given to the applicant was consonant with the general vision of land development in the part of the town concerned, which was of a historical character and was to be preserved and enhanced. Similar arguments were set out in a letter of 19 June 1992, apparently in reply to further complaints made by the applicant’s neighbour.

On 28 July 1992 the Częstochowa Governor declared null and void the 1987 decision which authorised certain alterations to be made to plot No. 28. The Częstochowa Governor considered that that decision had been given in flagrant breach of the substantive provisions of construction law and without the consent of the then owner of the plot, the State Treasury. The M. company, owned by Z.M., which later leased plot No. 28, lodged an appeal with the Minister of Town and Country Planning. On 9 November 1992 the Minister upheld the contested decision. The M. company lodged an appeal with the Supreme Administrative Court.

On 23 December 1992 the applicant requested that he be given building permission and submitted relevant technical documents in support of his request.

On 18 January 1993 the Director of the Częstochowa District Office stayed the proceedings on the applicant’s request for the grant of final building permission, pending a final decision in the proceedings for a declaration of nullity of the 1987 decision. The applicant appealed to the Częstochowa Governor. The contested decision was upheld by the Governor on 1 March 1993. The applicant lodged a further appeal with the Supreme Administrative Court.

On 16 November 1993 the Supreme Administrative Court allowed the applicant’s appeal and quashed the contested decision relating to the stay of the proceedings. The court pointed out, firstly, that the proceedings concerning the status of the 1987 decision had in fact been terminated by a final decision and, secondly, that there was nothing in the character of these proceedings, which essentially concerned the fitting of doors and windows in the boundary wall between plots Nos. 28 and 30, which would make it impossible to proceed in the case concerning the applicant’s request for the grant of final building permission.

By a decision of 21 February 1994 the Częstochowa Municipal Department of Architecture, Town Planning and Construction Supervision refused to grant final building permission to the applicant. That Department considered that the applicant had failed to submit documents in order to show that his proposed development complied with the local land development plans. The Department further stated that no final decision had as yet been given on  the issue concerning the fitting of a door and windows in the boundary wall between the applicant’s plot and plot No. 28.

On 3 March 1994 the Supreme Administrative Court annulled the decisions of 28 July and 9 November 1992 whereby the M. company leasing plot No. 28 had been ordered to block doors and windows in a wall facing the applicant’s plot and adjacent to the boundary of the plot. According to the court, the decisions failed to indicate the manner in which the proposed alterations breached applicable substantive laws.

On 14 August 1994 the Częstochowa Governor again examined the applicant’s request to have the 1987 decision declared partly null and void. The Częstochowa Governor refused to do so. He considered inter alia that according to a resolution of the Supreme Court of 18 November 1993, it was impossible to declare null and void a building permit if relevant works had already been carried out, even if the relevant decision was otherwise flawed in a manner which would allow it to be declared null and void. On 18 August 1994 this decision was upheld by the Minister of Town and Country Planning essentially on the same ground. The applicant lodged an appeal against this decision, arguing inter alia that the decision was in breach of law in that the company using plot No. 28 was doing so only on the basis of a lease, whereas he was a rightful owner of plot No. 30 and his rights were disproportionately infringed by the contested decisions.

On 6 June 1995 the Supreme Administrative Court quashed the refusals of 21 February 1994 and 15 April 1994 to give the applicant building permission.

On 18 September 1995 the District Department of Architecture, Town Planning and Construction Supervision requested the applicant to submit a decision concerning the development plan for the plot concerned, which, according to the provisions of the new Construction Act of 7 July 1994, was a prerequisite for a further examination of the applicant’s request for the grant of building permission. He was also requested to submit amendments to the original building project so as to take into account the presence of windows and a door on the boundary between the plots.

On 1 April 1996 the Supreme Administrative Court quashed the decisions by which the administration refused to declare null and void the 1987 decision in so far as it authorised the fitting of a door and windows in the boundary wall between the plots. The court considered that the resolution of the Supreme Court of 1993, referred to by the administrative authorities, did not have the status of case-law and could not be deemed binding in the circumstances of the case. Thus, the issue needed to be reconsidered, with special attention being paid to the question whether the building on plot No. 28 had been constructed on the basis of a building permit or, in the alternative, in the absence of any legal basis.

On 10 August 1996 the applicant was informed by the Częstochowa Regional Office that an administrative enquiry had been instituted in order to establish whether the building on plot No. 28 had been constructed lawfully. On 22 August 1996 he was further informed that the proceedings would not be terminated before 26 August 1996.

On 29 October 1996 the Częstochowa Regional Office refused to declare null and void the 1987 decision concerning the adjacent parcel No. 28.

The applicant lodged an appeal with the Chief Inspector of Construction Supervision. On 19 December 1996 the office of the Chief Inspector requested the Częstochowa Regional Office to submit a document, apparently missing from the case-file. This document was forwarded on 20 January 1997.

On 19 February 1997 the Chief Inspector of Construction Supervision quashed the 1987 decision concerning parcel No. 28 in its entirety, considering in particular that the fitting of windows and a door in the wall adjacent to the applicant’s parcel No. 30 was unlawful in that it rendered it impossible for the applicant to use his plot.

By a letter of 27 March 1997 of the Częstochowa Municipal Office the applicant and other parties to the proceedings were informed that the case concerning the 1987 decision could not be dealt with within the time-limit provided for by Article 35 of the Code of Administrative Procedure. A new time-limit was fixed. According to the new time-limit, the case was to be disposed of by 5 May 1997.

On 18 April 1997 the M. company appealed to the Supreme Administrative Court against the decision of 19 February 1997.

In a letter of 14 May 1997 the applicant was informed by the Supreme Administrative Court, in reply to his complaint that the appeal against the decision of 19 February 1997 had not yet been decided, that, in view of the Court’s case-load, there was a delay of approximately eighteen months for cases to be heard and judgment given.

On 10 April 1997, J.U., one of the co-owners of parcel no. 30, which was also co-owned by the applicant, sold her share of the property to a third party.

On 19 May 1997 the applicant submitted a complaint about the inactivity of the administration to the Chief Inspector of Construction Supervision.

On 9 July 1997 the Częstochowa Regional Office informed the applicant that his complaint about the inactivity of the administration in the proceedings concerning parcel No. 28 could not be dealt with within the one-month time-limit provided for by law. The complaint would be dealt with by 8 August 1997.

On 28 July 1997 the Częstochowa Regional Office informed the applicant that his complaint about the inactivity of the administration in the proceedings concerning parcel No. 28 was unfounded. The case was pending before the Supreme Administrative Court, and not before that authority. The letter stating that a further time-limit had been fixed for dealing with the case had been sent as a result of an error.

On 2 July 1999 the Supreme Administrative Court quashed the decision of the Chief Inspector of Construction Supervision of 19 February 1997, considering that the lower authorities had failed to establish whether the supervision of the Principal Inspector of Conservation of Cultural Heritage should apply to the area within which parcel No. 28 was situated.

On 14 January 2000 the applicant sold his share in parcel No. 30 to third parties.

On 14 February 2000 the Chief Inspector of Construction Supervision quashed the decision of 29 October 1996 and ordered that the case be re-examined. The applicant appealed. On 31 May 2000 the Chief Inspector of Construction Supervision submitted his pleadings to the Supreme Administrative Court. On 20 June 2000 the applicant lodged his pleadings with the court, complaining, inter alia , that the proceedings had lasted an unreasonably long time. The protracted nature of the proceedings had forced the applicant to sell this property. He had no other choice as the property was losing value as a result of the length of the proceedings. His property rights had been flagrantly breached in the proceedings in which the authorities has shown a manifest disregard of his legitimate interests.

B. Relevant domestic law and practice

1. Judicial review of administrative decisions

Under Article 196 § 1 of the Code of Administrative Procedure, as applicable until 1 October 1995, an appeal could be lodged with the Supreme Administrative Court against the merits of a second-instance administrative decision on the ground that the decision was not in conformity with the law.

Article 207 § 2 stated that the court should set the decision aside wholly or in part if it was established that the decision was issued in breach of substantive law, that the proceedings leading to the decision were flawed by a defect which rendered the decision null and void, or if such procedural shortcomings had occurred in the proceedings leading to the decision that their reopening was justified.

Pursuant to Article 16 of the Supreme Administrative Court Act of 11 May 1995, which entered into force on 1 October 1995, that court has competence to examine:

- appeals against administrative decisions on the merits;

- appeals against procedural decisions against which such an appeal is available;

- decisions given in administrative enforcement proceedings;

- administrative acts other than decisions listed above, creating or acknowledging legal rights or entitlements or obligations.

2. Length of administrative proceedings

(a) Before 1 October 1995

Under Article 35 of the Code of Administrative Procedure of 1960, the administration was obliged to deal with cases without undue delay. Simple cases should be dealt with no delay. In cases requiring enquiry, a first-instance decision should be given no later than one month. In particularly complex cases, decisions should be issued within two months.

If the decision was not given within those time-limits, a complaint under Article 37 of the Code could be filed with the higher-instance authority, which should fix an additional time-limit, identify the persons responsible for the failure to deal with the case within the time-limits, and, if need be, arrange for preventive measures to be adopted in order to prevent further delays.

(b) After 1 October 1995

In 1995 the Supreme Administrative Court Act was adopted, which entered into force on 1 October 1995. It created further specific procedures in which a complaint about the administration’s failure to act speedily could be raised.

Under Article 17 of the Act, the Supreme Administrative Court is competent to examine complaints about the administration’s inactivity in administrative proceedings in cases referred to in Article 16 of the Act.

Pursuant to Article 26 of the Act, if a complaint about the inactivity of an administrative authority is well-founded, the court shall oblige the competent authority to give a decision, or to carry out the factual act, or to confer or acknowledge an individual entitlement, right or obligation.

The 1995 Act also gave the Supreme Administrative Court special powers in order to ensure compliance of the administrative authorities with the judgments of that court. Under Article 31 of the Act, in cases in which the court found that the administrative authority had failed to carry out its order to give a decision, the court may impose a fine on the authority concerned.

The court, if the circumstances of the case so permit, can also rule on the merits of the case.

The court can give such decisions if the party to the proceedings has first summoned the authority concerned to carry out the court’s order given under the provisions of Article 17 of the Act.

A party to the proceedings who sustained damage as a result of a failure of the administrative body to act in compliance with the judgment of the Supreme Administrative Court given under Article 17 of the Act, is entitled to claim compensation from the administrative authority concerned, according to principles of civil liability as set out by the Civil Code. Such a claim should be first lodged with that authority. A decision on the compensation claim should be taken by that administrative authority within three months.

If the authority concerned fails to give a ruling in this respect within this time-limit, or if the party is not satisfied with the compensation granted, the compensation claim against the administrative body can be lodged with a civil court.

The Supreme Administrative Court ruled that the administration’s failure to act occurs when it has failed to take any steps in order to deal with the case, or when it did take such steps but such steps did not result in a decision or order being given, or in other relevant measures being taken. For the assessment of the complaint about the administration’s failure to act the reasons for this failure are irrelevant. In particular it is of no relevance whether the acts had not been carried out as a result of the authority’s lack of diligence, or as a result of its conviction that the decision or the act in question should not be given or carried out at all (NSA Warsaw, judgment of 1 December 1998, U IV SAB 121/97).

COMPLAINTS

The applicant complains under Article 6 of the Convention about the length of proceedings in which he requested to be granted building permission.

The applicant complains under Article 1 of Protocol No. 1 to the Convention that his right of property is being infringed in that, as a result of exceedingly long administrative proceedings relating to his request for a building permit and the validity of the decisions concerning buildings directly adjacent to his land, he is prevented from exercising his right as an owner to build a house on the site.

THE LAW

The applicant complains under Article 6 of the Convention about the length of proceedings in which he requested to be granted building permission.

The applicant also complains under Article 1 of Protocol No. 1 to the Convention that his right of property is being infringed in that, as a result of exceedingly lengthy administrative proceedings relating to his request for a building permit and to the validity of the decisions concerning the buildings directly adjacent to his land, he is prevented from exercising his right as an owner to build a house.

Article 6 § 1 of the Convention in its relevant part reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

Article 1 of Protocol No. 1 reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

a) Under Article 35 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted.

The Government argue that the applicant had at his disposal an array of relevant remedies concerning the length of administrative proceedings, provided for by the Code of Administrative Procedure. They state that the applicant appears to have exhausted all the remedies available under Polish law.

The applicant does not address this issue.

The Court reiterates that the relevant principles as to exhaustion of domestic remedies have been set out in inter alia the Court’s judgment of 28 July 1999 in the case of Selmouni v. France ([GC] no. 25803/94, §§ 74-77, ECHR 1999-V). The purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions.

The rule of exhaustion of domestic remedies obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they lack the requisite accessibility and effectiveness. However, Article 35 § 1 does not require that recourse should be had to remedies which are inadequate or ineffective (see the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52; Civet v. France, [GC], no. 29340/95, 28.9.1999, § 41, ECHR 1999-VI, mutatis mutandis ).

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 in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof 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 ((see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions , 1996-IV, p. 1211, § 68).

In the present case the Government accepted that the applicant had exhausted relevant domestic remedies. The applicant has been given an opportunity to challenge the Government’s argument concerning the existence and effectiveness of available domestic remedies, but he has chosen not to do so. Consequently, this part of the application cannot be declared inadmissible for non-exhaustion of domestic remedies.

b) As to the substance of these complaints, the Government argue that on 14 January 2000 the applicant sold his share of the property concerned. As he is no longer the owner of that property, he cannot be considered to be a victim of a breach of Article 1 of Protocol No. 1 to the Convention. They further contend that the circumstances of the case do not disclose any breach of this provision.

The applicant submits that the realisation of his intention to build on his site required the quashing of the 1987 decision which authorised the fitting of windows and a door in the boundary wall between the applicant’s plot and the adjacent plot. However, the lawfulness of that decision was subject to a very lengthy examination. As a result, the proceedings in which he requested that building permission be granted to him were not concluded. Consequently, he could not build on the plot, and he was forced to sell it following litigation lasting nine years and at a price which was approximately thirty per cent lower than the market price of a similar plot in the same part of the town.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court by a majority

Declares the application admissible.

Michael O’Boyle Nicolas Bratza Registrar President