FOURTH SECTION

PARTIAL 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 6 July 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr G. Ress ,

Mr A. Pastor Ridruejo ,

Mr L. Caflisch ,

Mr J. Makarczyk ,

Mr I. Cabral Barreto ,

Mrs N. Vajić , Judges ,

with Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 May 1995 by Henryk FUCHS  against Poland and registered on 18 November 1996 under file no. 33870/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish national, born in 1925 and living in Ozorków , Poland.

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

A. Particular circumstances of the case

The applicant is an 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.

a) 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 the applicant appealed against this decision to the Łódź Town Office (UrzÄ…d Miejski ) , arguing that the granting of this permission would affect any development of his land.  On 30 August 1989 the Łódź Town Office dismissed the applicant’s appeal.

Later, on an unspecified date, the applicant appealed to the Supreme Administrative Court ( Naczelny SÄ…d 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 (UrzÄ…d 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 be stayed.

On 23 July 1993 the Łódź Governor reopened the proceedings relating to the building permit of 16 October 1993, 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 Town and Country Planning (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 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 (“ polepszyÅ‚o stan zagospodarowania dziaÅ‚ki oraz stan bezpieczeÅ„stwa 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 Town Office (UrzÄ…d Miejski ) refused to take any steps in respect of the applicant’s above request.

It appears that the works had been 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 the Mayor of Ozorków set aside the building permit of 16 October 1992.

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 7 July 1994, 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.  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.  Later, the applicant filed a further appeal with the Supreme Administrative Court.  It appears that the relevant proceedings are pending.

b) 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, adjoining to 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 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 Administration (Urząd Rejonowy ) , which was competent to deal with the subject-matter (pursuant to an agreement between the Ozorków Town Board (Zarząd Miasta ) and the Zgierz District Administration).

On 28 April 1992 the Zgierz District Administration ordered that the outhouse and the garage be demolished by 30 September 1992.

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 Administration on an unspecified date.

On 29 December 1992, the Zgierz District Administration 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 Administration 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 Administration 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 Town 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 Town and Country Planning.

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. and F.W. requested the Chief Inspector of the Construction Supervision to declare the demolition order null and void.  On 25 November 1995 their request was dismissed as lacking any basis.

On an unspecified date Z.W and F.W filed a request for the latter decision to be reconsidered.  On 6 February 1996 the Chief Inspector of the Construction Supervision upheld his previous decision refusing to declare the demolition order null and void.  Later, Z.W. and F.W. filed a further appeal with the Supreme Administrative Court.

On 30 December 1997 the Supreme Administrative Court dismissed their appeal.

On an unspecified date the applicant requested the Zgierz District Administration to enforce the demolition order.  On 30 April 1998 the Zgierz District Administration 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 Administration imposed yet another fine on Z.W. and F.W. for non-compliance with the demolition order.  The proceedings are pending.

B. Relevant domestic law

Section 28 of the Polish 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 48 of the Law on Construction of 1974 (repeated in the same form in the Law on Construction of 1994, which entered into force on 10 January 1995) provided, insofar as relevant:

“The competent organ shall … order that a building or its part be demolished, if such a building is being under construction or has been constructed without an appropriate permit or notification thereof, …”

COMPLAINTS

1. The applicant complains about the excessive length of the proceedings relating to the issue of a building permit in favour of J.C.  He invokes Articles 5, 6, 13 and 14 of the Convention in support of his complaint.

2. He further complains under Article 1 of Protocol No. 1 to the Convention that the issue of the contested building permit interferes with his right to the peaceful enjoyment of his possessions.

3 The applicant also complains that the length of the proceedings relating to the issue and enforcement of a demolition order exceeded a “reasonable time”.  He relies on Articles 5, 6, 13 and 14 of the Convention.

4. Lastly, the applicant complains that the Polish 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 complains under Article 1 of Protocol No. 1 to the Convention that the issue of the building permit in favour of J.C. interferes with his right to the peaceful enjoyment of his possessions.

Under Article 35 § 1 of the Convention “the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law”.

In this respect the Court recalls that the purpose of the rule referred to above is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court (see Eur. Court HR, the Fressoz and Roire v. France judgment of 21 January 1999, to be published in Reports 1999- …, p. …, § 37).

The Court further notes that the proceedings concerning the permit in question are pending and the applicant still has an opportunity to obtain redress before the national authorities.

It follows that this part of the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 § 4 of the Convention.

2. Invoking Articles 5, 6, 13 and 14 of the Convention, the applicant complains about the excessive length of the proceedings relating to the issue of a building permit in favour of J.C. and submits that the length of the proceedings relating to the issue and enforcement of a demolition order against Z.W. and F.W. exceeded a “reasonable time”.  The applicant also complains that the Polish 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 Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaints concerning 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 and the complaint concerning the inactivity on the part of the Polish authorities in enforcing the demolition order;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää Registrar President