FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33870/96 by Henryk FUCHS against Poland

The European Court of Human Rights (Fourth Section), sitting on 11 December 2001 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo ,

Mrs E. Palm , Mr J. Makarczyk , Mrs V. Strážnická , 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 1 May 1995 and registered on 18 November 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 regard to the Court’s partial decision of 6 July 1999,

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 applicant,  Henryk Fuchs, is a Polish national, who was born in 1925 and lives in Ozorków, Poland . He is represented before the Court by Mr Wojciech Hermeliński, a lawyer practising in Warsaw. The respondent Government are represented by Mr Krzysztof Drzewicki, 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.

The applicant is the owner of a plot of land in Ozorków.

Since 1989-1990 construction works have been carried out by the applicant’s neighbours (J.C. and Z.W., F.W.) on their plots of land, adjoining his property.

1. Proceedings relating to the issue of a building permit.

On 4 July 1989 the Mayor of Ozorków (Naczelnik Miasta) issued a planning permission concerning the construction of an outhouse (plan realizacyjny budynku gospodarczego) in favour of J.C., the applicant’s neighbour.

On an unspecified date in July 1989 the applicant appealed against this decision to the Łódź Municipal Office (Urząd Miejski) , arguing that the granting of this permission would affect any development of his land. On 30 August 1989 the Łódź Municipal Office dismissed the applicant’s appeal.

Later, on an unspecified date, the applicant appealed to the Supreme Administrative Court (Naczelny Sąd Administracyjny) . On 1 February 1990 the applicant’s appeal was rejected as being lodged out of time. The applicant further requested the Supreme Administrative Court to grant him retrospective leave to appeal out of time. The request was granted on 27 February 1990.

On 1 June 1990 the Supreme Administrative Court, having examined the merits of the applicant’s appeal, quashed the contested decision. The court found numerous procedural defects in the course of the proceedings and considered that the grounds given for the decision were insufficient.

On 16 October 1992 the Mayor of Ozorków (Burmistrz) granted J.C. a building permit concerning the construction of an outhouse, a garage, a vestibule and a toilet adjacent to the existing house. This decision was not served on the applicant because the Mayor considered that his rights and interests were not involved in these proceedings.

On 18 June 1993 J.C. requested the Mayor of Ozorków to grant her a fresh building permit to carry out certain further developments of her plot. This was granted on 23 June 1993. The new building permit was to “annul and replace” (“unieważnia i zastępuje”) the one issued on 16 October 1992.

Both the applicant and J.C. appealed against the building permit issued on 23 June 1993. J.C. argued that the permit had not referred to the outhouse, which had been mentioned in the decision of 16 October 1992 (“annulled and replaced” by the contested permit of 23 June 1993).

On 20 August 1993 the Łódź Governor (Wojewoda) quashed the decision of 23 June 1993 and remitted the case to the Mayor of Ozorków.

In the meantime, on 21 June 1993, the Zgierz District Office (Urząd Rejonowy) had inspected J.C.’s construction site. It was established that the construction works had not been carried out in accordance with the building permit (at the time the permit of 16 October 1992, which was still valid). On 24 June 1993 the Zgierz District Office ordered that the construction works concerning the adjacent dwelling be stayed.

On 23 July 1993 the Łódź Governor reopened the proceedings relating to the building permit of 16 October 1992, finding that the applicant should have participated in the proceedings as a party.

On 17 September 1993 the Mayor of Ozorków issued two building permits in favour of J.C. The first permit allowed J.C. to continue the construction of an adjacent dwelling and approved the planning permission. The second permit allowed her to build an outhouse and a garage and approved the planning permission.

The applicant appealed against both these decisions. He failed, however, to pay the fees due for lodging an appeal. As a consequence, on 6 November 1993, the Łódź Governor returned the appeal to the applicant, without having examined the merits of the case.

Later, the applicant appealed to the Minister of Construction (Minister Gospodarki Przestrzennej i Budownictwa) . On 24 December 1993 the Minister set aside both decisions and ordered that the Łódź Governor should examine the merits of the appeal, notwithstanding the applicant’s failure to pay the fees.

On 2 February 1994 the Łódź Governor upheld the contested decisions.

On an unspecified date the applicant lodged a further appeal with the Supreme Administrative Court.

On 3 October 1994 the Supreme Administrative Court quashed the decision relating to the issue of the building permit in respect of the adjacent dwelling and declared null and void the building permit relating to the outhouse and the garage. The Supreme Administrative Court found that the original decision of 16 October 1992 was still in force as the decision of 23 June 1993 (setting aside the original one) had been quashed on 20 August 1993.

As a consequence, on 15 February 1995, the Łódź Governor quashed the decision granting the building permit of 16 October 1992 and remitted the case to the Mayor of Ozorków.

On an unspecified date the applicant filed a complaint with the Łódź Governor, alleging inactivity on the part of the Mayor of Ozorków. On 1 June 1995 the Łódź Governor found that the applicant’s complaint was indeed well-founded and obliged the Mayor of Ozorków to render a decision before 14 June 1995.

On 9 August 1995 the Mayor of Ozorków issued a building permit authorising J.C. “to continue the construction of the outhouse and the garage”. On an unspecified date the applicant appealed against this decision.

On 18 September 1995 the Łódź Governor set aside the impugned decision and discontinued the proceedings before the Mayor of Ozorków conducted under the 1994 Law on Construction. It considered that the 1974 Law on Construction should have been applied to the proceedings, since the works had been commenced before the entry into force of the 1994 Law on Construction.

On 17 October 1995 the Mayor of Ozorków issued a decision authorising J.C. to use the adjacent dwelling. The Mayor of Ozorków found that the construction of the adjacent dwelling had not been carried out in accordance with the building permit, without specifying to which building permit he referred. However, according to the Mayor, the departure from the original development was justified by practical reasons. In particular, he found that it would in fact improve both land management and fire control (“polepszyło stan zagospodarowania działki oraz stan bezpieczeństwa pożarowego”) and would not adversely affect the applicant’s property. The applicant appealed against this decision, submitting that the construction in question would affect any further development of his land. He also alleged that the contested decision was in breach of the law.

On an unspecified date the applicant filed a complaint with the Supreme Administrative Court, complaining about inactivity on the part of the local administration. The complaint was dismissed on 10 January 1996.

On 29 February 1996 the Chief Inspector of the Construction Supervision (Główny Inspektor Nadzoru Budowlanego) , of his own motion, declared the decision of 15 February 1995 null and void. The Chief Inspector observed that the Łódź Governor should not have dealt with the matter as, according to the relevant provisions of the Code of Administrative Procedure, the Mayor of Ozorków was competent to render a new decision.

On 26 July 1996 the Łódź Regional Office (Urząd Wojewódzki) , having regard to the latter decision, stayed two sets of proceedings instituted upon the applicant’s appeal against the decisions of 9 August 1995 and 17 October 1995.

The applicant appealed against these decisions and his appeals were dismissed on 29 and 30 August 1996 respectively.

On 14 November 1996, upon the applicant’s request, the proceedings leading to the verification of the validity of the decision of 29 February 1996 were instituted.

It appears that at the same time the applicant repeatedly requested the authorities to intervene with the construction in question and to order a so-called “compulsory demolition” (przymusowa rozbiórka). On 9 December 1996 the Ozorków Municipal Office refused to take any steps in respect of the applicant’s above request.

It appears that the works were continued at least until 24 May 1997 because on that day the Mayor of Ozorków ordered that those works be stayed. The applicant appealed against this decision and requested that a demolition order be issued. On 13 June 1997 the Łódź Governor set aside the decision staying the construction and discontinued the proceedings, noting that the first-instance organ had erroneously based its decision on the 1994 Law on Construction, although the construction had been commenced before its entry into force and, therefore, the 1974 Law on Construction should have been applied.

On 28 May 1997, after having reopened the proceedings, the Mayor of Ozorków set aside the building permit issued on 16 October 1992 and discontinued the proceedings in this respect.

On 16 September 1997 the Łódź Governor decided, of his own motion, to resume two sets of appeal proceedings, which had been stayed on 26 July 1996. On 18 September 1997, the Łódź Governor set aside two decisions of the Mayor of Ozorków of 9 August 1995 and 17 October 1995, the first of them authorising J.C. to continue the construction of the outhouse and the garage and the second one authorising her to use the adjacent dwelling. The Łódź Governor discontinued the proceedings in these two cases, finding that the proceedings were conducted under the provisions of the 1994 Law on Construction, whereas the authorities should have applied the relevant provisions of the 1974 Law on Construction.

On 22 October 1997 the Mayor of Ozorków issued a building permit authorising J.C. to continue the construction of the outhouse and the garage. It considered that the building complied with the local zoning plan and the technical conditions specified in the 1994 ordinance of the Minister of Construction.

On 25 October 1997 the Mayor authorised J.C. to use the adjacent dwelling.

On 26 January 1998 the Łódź Governor, upon the applicant’s appeal, upheld both decisions of the Mayor. Later, the applicant filed two further appeals with the Supreme Administrative Court against the decisions of the Governor.

On 18 May 2001 the Supreme Administrative Court set aside the decision of the Łódź Governor and the earlier decision of the Mayor of Ozorków of 22 October 1997, authorising J.C. to continue the construction of the outhouse and the garage. It found the impugned decisions to be in breach of substantive and procedural laws. The case was remitted to the Mayor of Ozorków.

It appears that the proceedings are pending.

2. Proceedings relating to the issue and enforcement of a demolition order.

Z.W. and F.W., the applicant’s neighbours, built a house under a building permit issued on an unspecified date before 1990. Apparently, they also built an outhouse ( budynek gospodarczy ), adjoining the applicant’s dwelling house. However, the permit which they had obtained had not allowed them to construct the outhouse. On 7 March 1990 the Mayor of Ozorków ordered that the outhouse be demolished, as it had been constructed illegally, i.e. without an appropriate permit. This decision was served on the applicant on an unspecified date.

On 6 December 1990 the Mayor of Ozorków decided to reopen the proceedings relating to the demolition order and altered the decision of 7 March 1990. He authorised Z.W. and F.W. to use the outhouse. The Mayor referred to the Supreme Administrative Court’s judgment rendered in certain other proceedings, in which the applicant had participated. The judgment referred to a “decisive importance of the local zoning plan” (plan szczegółowy zagospodarowania przestrzennego) . In the present case the plan envisaged the construction of a new dwelling house on the applicant’s plot of land, and moreover, the applicant himself had expressed such an intention in the course of the proceedings in the Supreme Administrative Court. The applicant appealed against this decision.

On 6 March 1991 the Łódź Governor quashed the contested decision and discontinued the proceedings. The Governor first pointed out that the judgment rendered in the case referred to could not be considered as a basis for the reopening of the proceedings and that, secondly, only proceedings in which a final decision had been rendered could be reopened. In the case concerned Z.W. and F.W. had filed an appeal. Consequently, the proceedings were still pending and they could not have been reopened.

On the same date the Łódź Governor examined the merits of the appeal filed by Z.W and F.W., quashed the demolition order of 7 March 1990 and remitted the case to the first-instance organ.

On 17 January 1992 the Mayor of Ozorków granted Z.W. and F.W. a permit to use the outhouse and the garage, which had likewise been constructed without any building permit.

On 17 March 1992, upon the applicant’s appeal, the Łódź Governor quashed the contested decision, discontinued the proceedings in the first instance and referred the case to the Zgierz District Office ( Urząd Rejonowy ), which was competent to deal with the subject-matter (pursuant to an agreement between the Ozorków Municipal Board ( Zarząd Miasta ) and the Zgierz District Office).

On 28 April 1992 the Zgierz District Office ordered that the outhouse and the garage be demolished by 30 September 1992 in accordance with Section 37 § 1 (2) of the 1974 Law on Construction. It found that the outhouse and the garage were erected illegally and that they constituted a danger for persons and property or/and created inadmissible detriment to sanitary or functional conditions of the surroundings. Further, the District Office found that the outhouse and the garage were erected 45 centimetres from the applicant’s house, being therefore in breach of the relevant technical requirements specified in the 1980 Ordinance of the Minister of Administration, Land Management and Environmental Protection ( rozporządzenie Ministra Administracji, Gospodarki Terenowej i Ochrony Środowiska ).

On 29 June 1992, upon an appeal filed by Z.W. and F.W., the Łódź Governor upheld the demolition order.

Since Z.W. and F.W. had not complied with the order, enforcement proceedings were instituted by the Zgierz District Office on 29 December 1992. On the same date the Zgierz District Office imposed a fine on Z.W and F.W. for non-compliance with the order. The Łódź Governor dismissed their appeal against this decision on 30 March 1993.

On 16 April 1993 the Zgierz District Office again imposed a fine on Z.W and F.W. Their appeal against this decision was dismissed by the Łódź Governor on 12 July 1993.

On an unspecified date, Z.W. and F.W. submitted a plan altering the use of the buildings in question.

On 14 July 1993, upon Z.W.’s and F.W.’s request, the Łódź Governor reopened the proceedings concerning the construction of the outhouse and the garage and referred the case to the Mayor of Ozorków.

On 16 July 1993 Z.W. and F.W. were authorised to use the outhouse as a dwelling. The applicant appealed against this decision.

On an unspecified date, upon Z.W.’s and F.W.’s requests, the Zgierz District Office instituted proceedings concerning the discontinuation of the enforcement proceedings instituted under the demolition order of 28 April 1992. On 27 August 1993 these proceedings were stayed since the legality of the permit of 16 July 1993 had in the meantime been called in question by the Ozorków Municipal Office (of its own motion).

On an unspecified date the applicant lodged a complaint with the Supreme Administrative Court, alleging inactivity on the part of the Łódź Governor. The complaint was rejected on 3 October 1994, since the applicant should have lodged such a complaint with the Minister of Construction.

On 4 October 1993 the Łódź Governor, acting of his own motion, declared the permit of 16 July 1993 null and void. The Governor found that the Mayor of Ozorków had exceeded his powers, as he had been vested only with conducting the reopened proceedings and he could not have rendered the decision.

On 1 March 1995 the Chief Inspector of the Construction Supervision quashed the decision of the Łódź Governor of 4 October 1993 and discontinued the first-instance proceedings. The Chief Inspector found that since the applicant had appealed against the decision of 16 July 1993, his appeal should have been examined in a normal review, which had priority over an extraordinary supervision of the decision in question.

As a consequence, the Łódź Governor examined the applicant’s appeal against the decision of 16 July 1993 on the merits. On 9 June 1995 the Łódź Governor set aside the contested decision and discontinued the first-instance proceedings. The Łódź Governor pointed out several shortcomings of the decision in question, in particular he found that it had been rendered while the demolition order had been in force and that the rules relating to the competence had been violated.

On 26 June 1995 Z.W. requested the Chief Inspector of the Construction Supervision to declare the demolition order null and void. On 25 November 1995 her request was dismissed as lacking any basis. The Chief Inspector upheld the findings of the Zgierz District Office and the Łódź Governor. It recalled that those authorities, having found that the outhouse and the garage were erected unlawfully, considered that the conditions for ordering their demolition had been met (provided in Section 37 § 1 (2) of the 1974 Law on Construction). The Chief Inspector further considered that the outhouse and the garage erected by Z.W. and F.W. caused danger for persons and property by way of fire hazard.

On an unspecified date Z.W. filed a request for the latter decision to be reconsidered. On 6 February 1996 the Chief Inspector upheld his previous decision refusing to declare the demolition order null and void. In addition to his previous findings, the Chief Inspector considered that the buildings and the garage erected by the neighbours gave rise to unacceptable sanitary and functional conditions for the applicant.

Later, Z.W. filed a further appeal with the Supreme Administrative Court. On 30 December 1997 the Supreme Administrative Court dismissed her appeal.

On an unspecified date the applicant requested the Zgierz District Office to enforce the demolition order. On 30 April 1998 the District Office informed him that his request could not be dealt with within a statutory time-limit of one month as the explanatory proceedings had to be carried out; however, the request should be dealt with by 30 May 1998.

On 7 May 1998 the Zgierz District Office imposed yet another fine on Z.W. and F.W. for non-compliance with the demolition order. On 22 October 1998 the Łódź Governor upheld the decision of 7 May 1998.

On an unspecified date in 1998 the applicant lodged a complaint with the Supreme Administrative Court, alleging inactivity on the part of the Head of the Zgierz District Office ( Kierownik Urzędu Rejonowego ) in enforcing the demolition order. The applicant claimed that, in accordance with the findings of the administrative authorities, the buildings erected by his neighbours caused danger for persons and property, and were unacceptably detrimental to sanitary conditions of the surroundings.

On 17 November 1999 the Zgierz Local Inspector of Construction Supervision ( Powiatowy Inspektor Nadzoru Budowlanego ) issued a writ of enforcement ( tytuł wykonawczy ) against Z.W. and F.W. It also imposed a fifth fine on the neighbours. The Inspector informed Z.W. and F.W. that non-compliance with the demolition order would lead to its substitute enforcement ( wykonanie zastępcze ) at their expense (under Section 127 of the 1966 Law on Enforcement Proceedings in Administration).

On 23 February 2000 the Supreme Administrative Court dismissed the applicant’s complaint about the inactivity of the Zgierz District Office in enforcing the demolition order. It found that the enforcement proceedings had lasted unjustifiably long and that they should be completed as soon as possible. However, the Supreme Administrative Court considered that the inactivity of the respondent authority was not established and that the District Office had recently taken decisions aimed at enforcement of the demolition order which could lead to its actual execution in the nearest future.

It appears that the proceedings are still pending.

B. Relevant domestic law

Section 28 of the Code of Administrative Procedure provides:

“Everyone, whose legal interests or obligations are involved in [administrative] proceedings, or who requests that [certain] steps be taken by [an administrative] organ with regard to his legal interests or obligations, is a party to the proceedings.”

Section 37 § 1 of the 1974 Law on Construction provided, insofar as relevant:

“Buildings or their parts, which are being erected or have been erected in violation of the laws in force at the time of their erection, are subject to a compulsory demolition [...] if the administrative authority establishes that the building or its part:

1) [...]

2) constitutes a danger [...] for persons or property, or creates inadmissible detriment to sanitary or functional conditions of the surroundings. [...]”

Paragraph 13 (2) of the 1980 Ordinance of the Minister of Administration, Land Management and Environmental Protection on technical requirements in respect of buildings provided, insofar as relevant:

“ [...] Outhouses situated directly by the boundary of a parcel of land shall not adjoin the dwellings located on adjacent parcel.”

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings relating to the issue of a building permit in favour of his neighbour.

2. The applicant also complained under Article 6 § 1 of the Convention that the length of the proceedings relating to the issue and enforcement of a demolition order exceeded a “reasonable time”.

3. Lastly, the applicant complained that the authorities’ failure to enforce the demolition order infringes his right to the peaceful enjoyment of his possessions in a manner contrary to Article 1 of Protocol No. 1 to the Convention.

THE LAW

1. The applicant complained under Article 6 § 1 of the Convention about the excessive length of proceedings relating to the issue of a building permit in favour of the owner of adjacent land.

A. Applicability of Article 6 § 1 of the Convention

The Government’s arguments

The Government maintain that the proceedings at issue did not concern determination of the applicant’s "civil rights and obligations" within the meaning of Article 6 § 1 of the Convention. The Government submit that the right to property is one of the rights which has been recognised as a civil right for the purposes of Article 6 § 1 of the Convention; they however underline that the administrative decisions rendered in the proceedings relating to the issue of a building permit in favour of J.C. did not concern the property rights of the applicant but those of his neighbour. The Government further submit that the applicant  was only a participant in the proceedings in accordance with Section 28 of the Code of Administrative Procedure. They contend that that status in the proceedings would not automatically lead to the conclusion that the applicant’s "civil rights and obligations" were determined in the proceedings. Further, they argue the applicant’s property rights were never an issue in the proceedings. The Government maintain that the administrative decisions rendered in the proceedings were neither pecuniary nor decisive for the applicant’s private rights and obligations.

The Government submit that in the Ortenberg v. Austria case (the Ortenberg v. Austria judgment of 25 October 1994, Series A no. 295-B) the Court found that the issue of a building permit in favour of the applicant’s neighbour would reduce the market value of her property and thus it was a case of a pecuniary nature, which fell within the scope of Article 6 § 1 of the Convention. They argue, however, that in the present case there is absolutely no proof which would indicate that the issue of a building permit in favour of J.C. would reduce the market value of the applicant’s property.

The applicant’s arguments

The applicant argues that the proceedings in question concerned his “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention.

The applicant contests the distinction made by the Government that the administrative decisions rendered in the proceedings concerned the property rights of the neighbours but not those of the applicant. The applicant submits that the Government’s distinction led to the unfounded conclusion that the applicant being "only" a participant in the proceedings under Section 28 of the Code of Administrative Procedure, could not claim that his property rights were at stake in the proceedings. That conclusion is not supported either by the theory of Polish administrative law or by the case-law of the Convention organs.

The applicant submits, referring to Section 28 of the Code of Administrative Procedure, that the Supreme Administrative Court on many occasions dealt with the issue of legal interests of the owner of land adjacent to the property on which construction works had been carried out. In its judgment of 5 November 1987 no. IV SAB 23/87 the Supreme Administrative Court held that the owner of land who wished to participate in the administrative proceedings concerning construction works on the adjacent property, and who submitted to the administrative authority his motions and complaints in this respect, would be a party to the proceedings. In the resolution of 25 September 1995 no. VI SA 13/95 the Supreme Administrative Court held that in the proceedings concerning the granting of a planning permission the owners or perpetual leaseholders of adjacent properties could be parties to the proceedings.

In light of the above case-law of the Supreme Administrative Court, the applicant submits that he was considered a party to the proceedings with all the consequences resulting from that status, i.e. the fact that his legal interests were at stake in the proceedings.

In conclusion, the applicant submits that Article 6 § 1 of the Convention is applicable to the present proceedings and that it has been violated on account of their length.

The Court’s assessment

With regard to the issue of applicability of Article 6 § 1 of the Convention, the Court notes that the legal situation obtaining in the present case is comparable to that which the Court was called on to examine in the case of Ortenberg v. Austria (the Ortenberg v. Austria judgment of 25 October 1994, Series A no. 295-B).

In that case the Court recognised that proceedings for the granting of a building permit to a particular person also involve the determination of the civil rights of a neighbour who opposes the grant of a building permit. The Court considered that in such proceedings the pecuniary interests of the opposing neighbour could be at stake and therefore found the civil right limb of Article 6 § 1 to be applicable (§ 28 of the Ortenberg judgment).

The Court notes that in the present case the right of the applicant to be a party to the proceedings was recognised under Polish law. Furthermore, the case-law of the Supreme Administrative Court adduced by the applicant confirmed that in the proceedings under consideration the owner of the adjacent land was considered a party to the proceedings.

The Court observes that the recognition of the applicant’s standing in the domestic proceedings indicated that his legal interests or obligations (which themselves find their basis in the provisions of substantive laws) were involved in these proceedings within the meaning of Section 28 of the Code of Administrative Procedure.

The Court notes that in the Ortenberg case the applicant’s standing in the proceedings concerning her objection to the grant of a building permit to her neighbour was provided in the provisions of substantive law (the Building Regulations Act), while in the present case the applicant’s standing derives from the provisions of the Code of Administrative Procedure. The Court however considers that difference not to be significant for the question of the applicability of Article 6 § 1 to the present case. The Court finds no other specific circumstances in the present case which would justify the departure from the principle laid down in the Ortenberg judgment in respect of the applicability of Article 6 § 1 of the Convention to the present proceedings.

The Court further observes that by bringing the proceedings in which the applicant objected to the granting of the building permit to his neighbour, the applicant wished to avoid any infringement of his pecuniary rights, because he considered that the works on the land adjoining his property would adversely affect further development of his land. Having regard to the principle laid down in the judgment of Ortenberg v. Austria (cited above) and having regard to the close link between the proceedings brought by the applicant and the consequences of their outcome for his property, the right in question was a "civil" one. Accordingly, Article 6 § 1 of the Convention is applicable to the proceedings.

B. Length of the proceedings

The Government, having considered that Article 6 § 1 of the Convention is not applicable to the proceedings, did not comment on the compliance of their length with the "reasonable time" requirement.

The applicant maintains that the proceedings at issue were not concluded within a "reasonable time" in breach of Article 6 § 1 of the Convention.

The Court notes that the applicant’s complaint relates to the length of the proceedings, which began on an unspecified date in July 1989 when the applicant appealed against the decision of the Mayor of Ozorków of 4 July 1989 and are apparently still pending. They have therefore already lasted about twelve years and five months, out of which the period of eight years, seven months and ten days falls 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 are of the opinion that there has been no breach of the Convention in the present case.

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 applicant further complained under Article 6 § 1 of the Convention about the length of proceedings relating to the issue and enforcement of a demolition order.

A. Applicability of Article 6 § 1 of the Convention.

The Government’s arguments

The Government assert that in the proceedings concerning the issue and enforcement of the demolition order there was no determination of the applicant’s "civil rights and obligations" within the meaning of Article 6 § 1 of the Convention.

They submit that Article 6 § 1 of the Convention would apply to the proceedings if non-enforcement of the demolition order of 28 April 1992 constituted a pecuniary detriment to the applicant’s plot. Further, the Government maintain, relying on the inspections of the site performed by the local authorities, that the garage (subject to the demolition order) which adjoins the applicant’s dwelling did not reduce the market value of his property. Therefore, the Government state that the proceedings in question lack a pecuniary character for the applicant and cannot be classified as “directly decisive for his civil rights and obligations” within the meaning of Article 6 § 1 of the Convention.

The applicant’s arguments

The applicant argues that the proceedings in question concerned his "civil rights and obligations" within the meaning of Article 6 § 1 of the Convention. In support the applicant refers to his submissions on the applicability of Article 6 § 1 in the proceedings relating to the issue of a building permit.

In addition, the applicant argues that construction of the outhouse which reduces access to daylight and the garage which causes pollution on the boundary of his property resulted in a reduction in the market value of his land. The applicant submits that Article 6 § 1 of the Convention is applicable to the present proceedings and that it has been violated on account of their length.

The Court’s assessment

The Court recalls that the issue of applicability of Article 6 § 1 of the Convention to the proceedings concerning a demolition order addressed to the owner of an adjacent parcel of land was examined by the European Commission of Human Rights in the case of Krickl v. Austria (application no. 21752/93, Commission decision of 21 May 1997, Decisions and Reports (DR) 89, p. 5).

In that case the Commission observed that Austrian law, in particular the Building Regulation at issue, did not provide for locus standi of a neighbour in proceedings regarding a demolition order. Having regard to the fact that in the above proceedings the applicant could not rely on a right recognised under domestic law, the Commission found that Article 6 § 1 of the Convention was not applicable to those proceedings.

The Court recalls that, according to the principles laid down in its case-law, Article 6 § 1 of the Convention extends only to “ contestations ” (disputes) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. Article 6 § 1 is not aimed at creating new substantive rights, without a legal basis in the Contracting State, but at providing procedural protection of rights already recognised in domestic law (see the W. v. United Kingdom judgment of 8 July 1987, Series A no. 121-A, p. 32, § 73; the Kraska v. Switzerland judgment of 19 April 1993, Series A no. 254-B, p. 48, § 24; the Zander v. Sweden judgment of 25 November 1993, Series A no. 279, p. 39, § 24). The dispute over a right must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question (see the following judgments: the Acquaviva v. France judgment of 21 November 1995, Series A no. 333-A, p. 14, § 46; the Balmer-Schafroth and Others v. Switzerland judgment of 26 August 1997, Reports of Judgments and Decisions 1997-IV, p. 1357, § 32; the Le Calvez v. France judgment of 29 July 1998, Reports 1998-V, p. 1899, § 56; Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 43, to be published; and Mennitto v. Italy [GC], no. 33804/96, § 23, to be published). Lastly, the right must be a “civil” right.

Firstly, the Court notes that the present case is to be distinguished from the case of Krickl v. Austria (cited above) where the applicant did not have locus standi in the proceedings regarding the demolition order. In this respect the Court observes that in the present case the applicant’s right (as a neighbour) to be a party to proceedings regarding the issue and enforcement of the demolition order issued to the owner of adjacent plot of land was recognised by the administrative authorities and the Supreme Administrative Court. The recognition of the applicant’s locus standi in the proceedings implied that his "legal interests or obligations", within the meaning of Section 28 of the Code of Administrative Procedure, were involved in the proceedings. Consequently, the Court considers that in the proceedings regarding the demolition order the applicant could rely on a right recognised, at least on arguable grounds, under domestic law. The Court also notes that in the present case there was a dispute over the issue and enforcement of the demolition order in which the applicant has participated.

The Court further notes that according to the findings of the domestic authorities (decisions of the Chief Inspector of the Construction Supervision of 25 November 1995 and of 6 February 1996) the outhouse and the garage unlawfully erected on the neighbouring plot of land constituted a danger to property and persons by way of fire hazard and created inadmissible detriment to sanitary and functional conditions for the applicant [‘s property] within the meaning of Section 37 § 1 (2) of the 1974 Law on Construction.

The Court observes that by having claimed in the present proceedings that the demolition order issued in respect of illicitly erected buildings on the adjacent property be enforced, the applicant wished to avoid any infringement of his pecuniary rights, because he considered that his neighbours’ non-compliance with the order would adversely affect the enjoyment of his property and reduce its market value. Having regard to the close link between the proceedings regarding the demolition order in which the applicant was a party and the consequences of them for his property, the right in question was a "civil" one. Therefore, Article 6 § 1 of the Convention is applicable to the proceedings regarding the demolition order.

B. Length of the proceedings

The Government, having considered that Article 6 § 1 of the Convention is not applicable to the proceedings, did not comment on the compliance of their length with the "reasonable time" requirement.

The applicant maintains that the proceedings at issue were not concluded within a "reasonable time" in breach of Article 6 § 1 of the Convention.

The Court notes that the applicant’s complaint relates to the length of the proceedings, which began not later than on 6 December 1990 when the applicant appealed against the decision of the Mayor of Ozorków issued on the above-mentioned date and are apparently still pending. They have therefore already lasted eleven years and five days, out of which the period of eight years, seven months and ten days falls 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 are of the opinion that there has been no breach of the Convention in the present case.

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.

3. The applicant also complained under Article 1 of Protocol No. 1 to the Convention about inactivity on the part of the authorities in enforcing the demolition order.

The Government’s arguments

The Government maintain that non-enforcement of the demolition order issued on 28 April 1992 has not infringed the applicant’s right to the peaceful enjoyment of his possessions.

The Government submit that the right to peaceful enjoyment of possessions is protected principally against interference by the State, and that the State will be responsible under Article 1 of Protocol No. 1 only for interference which affect the economic value of the property. They also submit, referring to the López Ostra v. Spain judgment of 9 December 1994, that claims about interference with the aesthetic or environmental qualities of possessions are protected, if they be protected at all, elsewhere in the Convention. Further, they submit that under Article 1 of Protocol No. 1 to the Convention the State has, in principle, positive obligations to protect the enjoyment of possessions, including obligations to protect private interference, but there is little practice to indicate when the State is obliged to act.

The Government argues that non-enforcement of the demolition order has not resulted in a reduction in the market value of the applicant’s property. They maintain that the outhouse is not the source of any form of pollution for the applicant and that it has not infringed any of the interests [of the applicant] protected in Section 5 of the 1974 Law on Construction. Further, the Government contend that the construction of the outhouse on the neighbouring property does not prevent the applicant in any way from building a dwelling on his plot of land if he wishes to do so in the future.

The Government further submit that the demolition order was issued since the buildings on the adjacent property did not comply with the requirements specified in § 13 of the 1980 Ordinance of the Minister of Administration, Land Management and Environmental Protection, and not because the applicant’s rights were violated.

The Government assert that even though the proceedings regarding the demolition order have been lengthy, the administrative authorities have acted with due diligence in the present case in accordance with the 1966 Law on Enforcement Proceedings in Administration ( ustawa o postępowaniu egzekucyjnym w administracji ). The said authorities have imposed four fines on Z.W. and F.W. for non-compliance with the demolition order.

The applicant’s arguments

The applicant submits that the excessive length of the proceedings regarding the demolition order infringed his right to the peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 to the Convention.

The Court’s assessment

The Court first observes that Poland ratified Protocol No. 1 to the Convention on 10 October 1994. Insofar as the applicant’s complaint relates to facts or decisions regarding his property rights given prior to that date, the Court recalls that, in accordance with universally recognised principles of international law, a State can only be held responsible in respect of events following the ratification of the Convention. It follows that the Court is competent ratione temporis only in respect of events which occurred after 10 October 1994.

The Court recalls that Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, pp. 29-30, § 37). The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see Iatridis v. Greece [GC], no. 31107/96, § 55, ECHR 1999-II and Immobiliare Saffi v. Italy [GC], no. 22774/93, § 44, ECHR 1999-VII).

The Court observes that the applicant was not prevented by law from disposing of his land if he wished to do so as he could build on it or sell it. The Court therefore finds that the situation complained of did not amount to a deprivation of the applicant’s possessions within the meaning of the second sentence of the first paragraph of Article 1. Nor did it constitute a control of the use of the applicant’s property which would have to be examined under the second paragraph of Article 1.

It remains to ascertain whether the situation complained of amounts to an interference with the rights guaranteed to the applicant in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention.

The applicant argues that his right to enjoyment of his possessions was infringed on account of the authorities’ failure to enforce the demolition order of 28 April 1992 addressed to the applicant’s neighbour. In this respect the Court observes that, according to the findings of the domestic authorities in the case, the neighbours have erected the outhouse and the garage illegally and that, according to those findings, the erection of those buildings caused a danger for persons and property by way of fire hazard and created inadmissible detriment to sanitary and functional conditions for the applicant’s property (within the meaning of Section 37 § (2) of the 1974 Law on Construction). The Court finds however, that the applicant has not sufficiently substantiated that these facts led to a loss of value of his land or that he could not be compensated for such loss if any.

Moreover, the Court observes that the authorities responsible for enforcement of the demolition order were by no means inactive. The authorities imposed five fines on the applicant’s neighbours for non-compliance with the order, all but one of them being appealed by the neighbours. On 16 July 1993, following the neighbours’ request, the Mayor of Ozorków issued the decision authorising them to use the outhouse as a dwelling. The proceedings related to that decision, following the applicant’s appeal, were terminated only on 9 June 1995 by the Łódź Governor. In addition, on 26 June 1995 the applicant’s neighbours, exercising their procedural rights under the Code of Administrative Procedure, instituted proceedings before the Chief Inspector of the Construction Supervision regarding the legality of the demolition order. These proceedings were terminated on 30 December 1997 by the judgment of the Supreme Administrative Court. The Court further notes that on 17 November 1999 the Zgierz Local Inspector of the Construction Supervision issued a writ of enforcement against the neighbours and imposed fifth fine on them. The Local Inspector informed the neighbours that their non-compliance with the demolition order would lead to its substitute enforcement at their expense. Later, on 23 February 2000 the Supreme Administrative Court dismissed the applicant’s complaint about inactivity of the Zgierz District Office in enforcing the demolition order.

Taking into consideration all of the above circumstances, the Court finds that in this case there is no appearance of a violation of the applicant’s right to peaceful enjoyment of his possessions as guaranteed by Article 1 of Protocol No. 1 to the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints in respect of the length of proceedings relating to the issue of a building permit and the length of proceedings relating to the issue and enforcement of a demolition order;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas B ratza Registrar President