FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33583/96 by Henryk SELIGMAN against Poland

The European Court of Human Rights (Fourth Section) , sitting on 14 September 2000 as a Chamber composed of

Mr G. Ress, President , Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr V. Butkevych, Mr J. Hedigan, Mrs S. Botoucharova , judges , [Note1]

and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 18 July 1996 and registered on 29 October 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 is a Polish citizen, a farmer residing in Åšwierczyny .

The facts of the case, as submitted by the applicant, may be summarised as follows:

A. Particular circumstances of the case

By an administrative decision of 9 April 1991 the applicant was obliged to re-establish the previous state of the waterflow through his property, as he had executed works which altered it.

On 23 May 1991 the Toruń Governor upheld this decision. The applicant filed an appeal with the Supreme Administrative Court.

In its judgment of 24 October 1991 the court established that water relations on the applicant’s lands and neighbouring farms had been severely disturbed in 1984, which caused frequent flooding of certain plots. Following requests from farmers, in 1985 the local municipality had carried out certain drainage works. However, they had proved ineffective in that the facilities had repeatedly been repaired, to no avail. The court considered that the administrative authorities had failed to establish, in particular by calling an expert, what measures should be taken in order to improve the overall situation, including that on the applicant’s property.  Accordingly, the court quashed the contested decisions and ordered the case to be reconsidered, as the administrative bodies had failed to establish correctly the facts relevant for their decisions.

Reconsidering the case, on 16 June 1992 the Brodnica Regional Office established inter alia that following the ineffective drainage works carried out in 1985, the applicant had blocked the gravitational flow of rain water through his land. As a result, a road nearby, used by many farmers, had been damaged. Subsequently, a ditch had been dug along this road in order to remedy problems caused by the works done by the applicant. The applicant had reacted by building a stone dam, which had blocked the flow of water along the edge of the road.  In 1988 the inhabitants of the village had agreed to reinstate the status quo ante . It was, in the opinion of the administrative body, the only possible solution, as another remedy, consisting of further costly drainage works, had not been accepted by the local community. The applicant was therefore ordered to re-establish the status quo ante in order to restore natural gravitational flow of rain and ground waters on his land by demolishing a dam he had constructed.

On 16 July 1992 J.S., the owner of a farm adjacent to the applicant’s, was ordered to re-establish the status quo ante by liquidating a ditch by which water had been directed toward the applicant’s land.

On 12 August 1992 the Toruń Regional Office quashed the decision of 16 June 1992 and ordered that the case be reconsidered.

By a decision of the Brodnica District Office of 22 January 1993 the applicant was again obliged to restore the previous state of waterflow on his property, by demolishing the dam and by digging a ditch along the local road going through his land. The applicant appealed to the Toruń Governor, who on 24 March 1993 upheld the contested decision.

On 14 October 1993 the Supreme Administrative Court dismissed the applicant’s further appeal and upheld the contested administrative decisions. The court established that the drainage works carried out by the local municipality in the 1980s had proved ineffective. Subsequently the applicant, trying to block rain and ground waters flowing onto his property from higher located neighbouring properties, had constructed a stone dam on the border between his plot and that belonging to his neighbour. This had rendered the natural gravitational flow of rain and ground water impossible and had severely disturbed existing waterflow in that the water had repeatedly been flooding the municipal road nearby, thus making difficult the access to the fields in the vicinity, belonging to 16 farmers.

The court had regard to Article 50 of the Water Code providing that an owner of property could not alter the waterflow on his or her ground, existing for at least five years, if such change could negatively affect neighbouring properties. The court observed that the drainage facilities made in 1985 by the municipality were so defective that it was not economically viable to repair them. Moreover, the owners of the farms concerned, including the applicant, had refused to bear the cost of any further drainage facilities. The court also noted the decision of 16 July 1992 by which the applicant’s neighbour J.S. had likewise been compelled  to take measures in order to re-establish the status quo ante on his plot. Consequently, it was only the demolition of the dam constructed by the applicant that could restore the status quo ante and also minimise damage caused by the fact that the drainage works had proved unsuccessful, and by further alterations made by the applicant.

On 18 February 1994 the applicant was served with a reminder to carry out the works ordered by the decisions.

On 21 October 1994 the applicant was served with a decision of 10 October 1994 to proceed to the enforcement of the decisions by an authorised company. He filed a complaint against the enforcement decision, which was subsequently dismissed. The applicant lodged a further appeal against the decision taken in the enforcement proceedings with the Supreme Administrative Court.  In  December 1994 a drainage ditch was dug on the applicant’s land, in enforcement of the relevant administrative decisions.

On 25 January 1996 the Supreme Administrative Court dismissed the applicant’s appeal against the enforcement decisions. The court recalled that its jurisdiction in administrative enforcement proceedings was limited to examining whether the enforcement decisions were in compliance with the provisions of the Administrative Enforcement Act of 1966. The court had regard to its considerations expressed in its judgment of 14 October 1993, namely that in the absence of any wish of the owners of the lands concerned to bear costs of new drainage facilities, the solution contested by the applicant was the only feasible one. This judgment and the decisions on the merits contested by the applicant remained valid. It was not in dispute that the applicant had failed to take the steps indicated in these decisions. In these circumstances, the applicant’s objections against the enforcement decisions aimed in fact at having the case reconsidered on the merits. This could not be done in the enforcement proceedings. In so far as the applicant called into question the manner in which the company had carried out the works on his land in December 1994 in order to secure compliance with the final decision on the merits, it remained open to him to submit relevant pecuniary claims, if any, in separate proceedings.

B. Relevant domestic law

1. Judicial review of administrative decisions

Ar ticle 196 § 1 of the Code of Administrative Procedure, as applicable at the relevant time, provided that an appeal could be lodged with the Supreme Administrative Court against a second-instance administrative decision on the merits on the ground that the decision was not in conformity with the law.

Article 207 § 2 of the Code states that the Court could set the decision aside wholly or in part if it established that the decision was issued in breach of substantive law, that the proceedings leading to the decision were flawed with a deficiency which led to the decision being null and void, or if such procedural shortcomings had occurred in the proceedings leading to the decision which would justify their reopening.

2. Enforcement of administrative decisions

Pursuant to Article 26 of the Administrative Enforcement Act of 1966 the administrative enforcement proceedings are instituted at the request of the creditor who is obliged to submit a valid enforcement title to the enforcement authority. In cases in which the enforcement authority is at the same time the creditor, the proceedings are instituted ex officio on the basis of an enforcement title issued by this authority .

Article 27 of the Act provides that the enforcement title should identify the creditor and the debtor, specify the contents of the obligations subject to enforcement and its substantive legal basis. Further, the legal basis for conducting administrative enforcement proceedings in respect of the obligation should be indicated. If the obligation is of a pecuniary character, the exact sums must be itemised.  The title must also contain the date at which it was issued, together with the name and rank of the person who issued it. A copy of a reminder to ensure compliance with the administrative decision, served on the debtor, must be attached to the title.

Under Article 32 of the Act, the enforcement authority, when taking the enforcement measures, shall serve the enforcement title on the debtor and shall inform him or her that it is open to him to submit, within seven days, objections against the enforcement measures being taken.

COMPLAINTS

The applicant complains in substance under Article 1 of Protocol No. 1 to the Convention that the contested decisions had infringed his right to peaceful enjoyment of his possessions.

THE LAW

1. The Court first recalls that Poland recognised the competence of the European Commission of Human Rights to receive individual applications "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993".  According to Article 6 of Protocol No. 11 this limitation shall remain valid for the jurisdiction of the Court under that Protocol. The Court further notes that Poland ratified Protocol No. 1 on 10 October 1994. The Court observes that the applicant’s complaints in part relate to events preceding these dates. It follows that this part of the application is outside the competence ratione temporis of the Court. In particular, the Court lacks jurisdiction to examine whether the administrative decisions given before 10 October 1994 were compatible with the requirements of Article 1 of Protocol No. 1.

It follows that this part of the application is inadmissible as being incompatible with the provisions of the Convention within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complains in substance under Article 1 of Protocol No. 1 that the contested decisions deprived him of the peaceful enjoyment of his possessions.

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.”

The Court notes, having regard to the temporal limitation of its jurisdiction referred to above, that it is competent to examine this complaint insofar as it relates to certain decisions given in the course of the administrative enforcement proceedings. Thus, the Court can examine the compatibility with Article 1 of Protocol No. 1 of the decision of the 21 October 1994 and the judgment of the Supreme Administrative Court of 25 January 1996, in which the decisions taken within the framework of the administrative enforcement proceedings were subject to a judicial review.

The Court first considers that the enforcement measures constituted an interference with the applicant's property rights within the meaning of the second paragraph of Article 1 of Protocol No. 1.

The Court must therefore examine whether the interference was justified. In this respect, it recalls that the Convention provision at issue requires that the interference with a person's peaceful enjoyment of possessions is lawful and serves a legitimate aim (see the Fredin v. Sweden n°1 judgment of 18 February 1991, Series A no. 192, pp. 16-17, §§ 48-50). Moreover, the interference must be proportionate, achieving a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (the Fredin judgment, loc. cit., p. 17, § 51; the Agosi v. the United Kingdom judgment of 24 October 1986, Series A. no. 108, p. 18, § 52).

As regards the lawfulness of the interference, the Court observes that in the present case the enforcement decision of 10 October 1994 was given on the basis of the provisions of the Administrative Enforcement Act, in particular its Articles 26 and 32. Therefore the Court is satisfied that this decision was lawful.

As regards the aim of the interference under examination, the Court observes that the contested decision was issued in order to ensure the applicant’s compliance with a final and binding administrative decision. The Court therefore finds that the interference was in the interests of securing the fulfilment of an obligation provided for by law and consequently pursued a legitimate aim.

The Court further recalls that, in determining whether a fair balance has been struck between the general and private interests, regard must be had, among other factors, to the behaviour of the owner of the property, including the degree of fault or care which he or she has displayed (the Agosi judgment, loc. cit., § 54, p. 19).

In the present case, the Court notes that the applicant was aware of the decisions on the merits given in the administrative proceedings. He also was aware of the fact that these decisions had become final and that they were enforceable. He was further reminded thereof by way of a reminder of 18 February 1994. Despite this reminder, he failed to take any measures in order to bring the situation into compliance with the decisions.

The Court further observes that in its judgment of 25 January 1996 the Supreme Administrative Court recalled that in the absence of an agreement by the owners of the lands concerned, including the applicant, to bear the costs of new drainage facilities, only the solution contested by the applicant was feasible. The Court also notes the decision of 16 July 1992 by which the applicant’s neighbour J.S. had likewise been constrained to take measures in order to re-establish the status quo ante on his plot. Consequently, it was not solely the applicant who was compelled to take measures on his property in the interest of the community. It is also noted that insofar as the applicant questioned the manner in which the drainage works had been carried out in December 1994, it was open to the applicant to submit relevant claims in separate proceedings.

The Court concludes therefore that no such adverse effects which could render the balancing of interests unfair have been shown to exist as a result of the contested decisions given in the enforcement proceedings. Accordingly, there is no appearance of an improper balance between the protection of the applicants' property rights and the demands of the general interest and, consequently, no appearance of a violation of the applicant’s right to the peaceful enjoyment of his possessions.

In the light of the above considerations, the Court finds that the interference with the applicant's property rights was justified. It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Georg Ress Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)