FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38665/97

by Eugeniusz BUKOWSKI

against Poland

The European Court of Human Rights ( Fourth Section) sitting on 1 June 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr G. Ress ,

Mr J. Makarczyk ,

Mr I. Cabral Barreto ,

Mr V. Butkevych ,

Mrs N. Vajić ,

Mr J. Hedigan , 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 19 March 1997 by Eugeniusz BUKOWSKI  against Poland and registered on 19 November 1997 under file no. 38665/97;

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 1931 and living in Warsaw, Poland.

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

a) Proceedings relating to the applicant’s claim for damages

On 15 March 1986 the applicant sued the Warsaw- Mokotów District Office ( Urząd Dzielnicowy ), the Warsaw Architecture Office ( Urząd Stołecznej Architektury ) and three of his neighbours, A.H., H.H. and T.H., before the Warsaw Regional Court ( Sąd Wojewódzki ), seeking damages.  As regards the first two defendants, the applicant sought damages arising either from the fact that they had issued several wrong decisions (which had resulted in the applicant’s having incurred a serious financial loss), or the fact that they had failed to issue appropriate decisions when obliged to do so by law.  As regards the other three defendants, the applicant sought damages for financial loss resulting from the fact that, during the construction of his house, they had repeatedly interfered with the construction works, in particular by destroying the work done, uttering threats or otherwise verbally abusing the applicant and his workers, or physically compelling them to stop the works.  In respect of these defendants, the applicant relied on a judgment of the Warsaw District Court of 13 June 1983, convicting two of them of two counts of unlawfully compelling the applicant to stop the construction of his house and one count of assault.  The applicant requested the court to award him damages in the total sum of 1,000,000 old Polish zlotys (PLZ).

It appears that at some further stage of the proceedings the applicant had withdrawn his claim in respect of the first two defendants because, at least from 9 June 1988, these proceedings were directed only against his neighbours, i.e. A.H., H.H. and T.H.

On an unspecified date the court ordered that evidence be obtained from a construction expert in order to establish the value of the financial loss sustained by the applicant as a result of his neighbours’ interference.  The expert drew up his report in May and June 1988.  He concluded that on account of the various forms of hindrance on the part of the defendants, the construction of the applicant’s house had been delayed for about 3 years and 6 months and that, due to this fact, he had sustained a financial loss of PLZ 4,394,000.

Later, on an unspecified date, the applicant, apparently in view of the expert’s conclusion, increased his claim to PLZ 4,394,000.

On 6 January 1989 the court ordered the applicant to pay additional court fees of 220,610 PLZ, which the applicant did on 17 February 1989.

On 26 November 1990 the court ordered that fresh evidence be obtained from a construction expert in order to establish the current value of additional expenses incurred by the applicant in connection with the delay in certain construction works in the interior of the house.

On 16 March 1992 the defendants lodged a pleading with the court, contesting the expert’s report and presenting new facts relevant for the assessment of the claim.  On 27 March 1992 the applicant lodged a similar pleading.

On 2 April 1992 the court ordered that evidence from yet another construction expert be obtained in order to assess the value of the damage sustained by the applicant in the light of the parties’ fresh submissions.

On 2 November 1992 the applicant complained to the Minister of Justice about the length of the proceedings in his case.  The Minister replied on 20 November 1992, admitting that the length of the proceedings was indeed excessive and informing the applicant that, from 30 November 1992 onwards, the progress of the proceedings would be monitored by him.

On 23 November 1992 the court transmitted the case-file to Z.S., a construction expert.  The expert report was submitted to the court within one further month.  On 19 January 1993 the court served copies of the report on the parties, obliging them to submit their comments within the time-limit of 10 days.  The parties submitted their pleadings on 9 February 1993.  The court scheduled a hearing for 26 April 1993.

A subsequent hearing was held on 29 September 1993.  On this day the court heard evidence from the expert.

On 6 October 1993 the applicant filed a pleading, contesting the expert report.  Z.S. submitted a fresh report on 28 November 1993; a copy thereof was served on the applicant on 14 January 1994.  On 21 January 1994 the applicant filed a further pleading, challenging the fresh report and stating that it was of a very little evidentiary value since the expert had in fact failed to view the interior of the house.  He further went on to describe various inconsistencies in the expert’s findings and conclusions.  Finally, the applicant requested the court to give a ruling on his claim, stressing that the length of the proceedings had to date exceeded 8 years.

Later, on an unspecified date, the presiding judge invited the parties to state whether or not they were going to ask the court to obtain fresh evidence from a construction expert.

On 20 April 1994 the parties filed their pleadings with the court; both of them contested the expert report.

Subsequently, on an unspecified date, the applicant informed the court that, in view of the unsatisfactory quality of Z.S.’s report, he was not going to pay the expert fees to the court.  On 21 October 1994 the court ordered that enforcement proceedings be instituted against the applicant with a view to collecting the fees in question.

On 18 November 1994 the court ordered that fresh evidence be obtained from Z.S. and that both parties be obliged to bear the fees due for preparation of his subsequent report.

On an unspecified date in December 1994 the presiding judge stepped down and the case was referred to another judge.

On 27 February 1995 the applicant complained to the Chief Justice of the Warsaw Court of Appeal ( Sąd Apelacyjny ) about an exceptional delay in the proceedings.  In a letter of 26 April 1995 the Chief Justice admitted that the delay in the proceedings had indeed been caused by the fact that the court dealing with the case had failed to display the proper procedural activity.  He apologised to the applicant in the name of the administration of justice.

On 16 May 1995 the applicant complained to the Chief Justice of the Supreme Court ( Sąd Najwyższy ) about inactivity on the part of the Warsaw Regional Court.  On 13 June 1995 the Chief Justice referred the complaint to the Minister of Justice, an organ responsible for monitoring the course of the proceedings.  He observed, however, that despite the monitoring of the case, since 29 September 1993 no hearing had been held in the proceedings.

Later, on unspecified dates, the applicant filed three further complaints about the length of the proceedings with the Chief Justice of the Warsaw Court of Appeal.  In a letter of 4 August 1995 the Chief Justice again apologised to him and admitted that the monitoring of the case had not been to much avail. He also informed the applicant that the Chief Justice of the Warsaw Regional Court had been instructed to take actions aimed at terminating the proceedings.

On 4 October 1995 the court held the next hearing and served copies of Z.S.’s new report on the parties.  This report had been submitted to the court on 28 February 1995.  The court further ordered the applicant to state the exact sum of the damages claimed in the light of the present circumstances of the case (including the current inflation rate).

On 11 October and 17 October 1995 the applicant filed two subsequent pleadings with the court.  They both contained his comments on evidence gathered during the proceedings.  In one of them the applicant stated that the current total value of his claim was 355,585.59 new Polish zlotys (PLN).

On 6 March 1996 the court held a subsequent hearing.  During the hearing the court ordered the applicant to pay court fees of PLN 14,342 due for an increase of his claim, on pain of his statement of claim being returned to him.

On 18 March 1996 the applicant lodged a further pleading with the court, explaining that he had paid the court fees as early as March 1986, when he had submitted his claim for adjudication.  Yet the court itself was fully responsible for the procrastination in the proceedings, the length of which had in the meantime exceeded 10 years.  During this time both the inflation rate and the purchasing power of money had changed on several occasions.  Therefore, no additional financial burden, in particular in a form of new, considerable court fees, should be placed on the applicant.  He concluded that, when stating the current value of his claim, he had never meant increasing his claim.

On 24 March 1996 the applicant appealed to the Warsaw Court of Appeal against the order of 6 March 1996, obliging him to pay the extra court fees.  He essentially repeated the arguments presented in his pleading of 18 March 1996.

On 31 May 1996 the Warsaw Court of Appeal quashed the contested order as being premature, finding that the lower court had misinterpreted the applicant’s statements concerning the value of the claim.  It ordered the lower court to obtain from the applicant a clear statement in respect of the amount of the damages currently claimed by him.

Later, on an unspecified date, the Warsaw Regional Court scheduled the next hearing for 26 May 1997.

In the meantime, on 5 May 1997, the applicant had lodged a pleading with the court, complaining about the length of the proceedings in his case.  He stressed the fact that at the time the length of the proceedings was about 12 years but his claim was still far from being determined.  He repeated that he had not been and was not going to increase the value of the claim.

During the hearing which was held on 26 May 1997 the court ordered Z.S. to submit a supplementary report stating the current value of various items included in his report of 28 February 1995.  This was apparently due to the fact that, after the latter date, the inflation rate and the purchasing power of money had again changed considerably.

On 30 June 1997 the expert submitted his report to the court.

On 27 August 1997 the court held the next hearing.  During this hearing it served copies of the expert report of 30 June 1997 on the parties and ordered the applicant to submit a pleading containing the precise statement of his claims, the circumstances demonstrating the fault on the part of the defendants and the value of the damage sustained by him on account of the defendants’ interference with the construction of his house.  On 11 September 1997 the applicant filed such a pleading with the court.  However, he also maintained that he had already presented the relevant arguments in his several, previous pleadings; in particular he referred to the last of them, which had been filed on 5 May 1997.

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

On 3 October 1997 the Warsaw Regional Court ordered that evidence from a new construction expert be obtained in order to establish the costs incurred by the applicant in connection with the impediments to the construction works and on account of the fact that those works had been interrupted from 1980 to 1983; also, the court found it necessary to establish what was the amount of income from a lease contract, of which the applicant had been deprived due to the delay in the construction works.

On 20 December 1997 K.S., an expert, submitted his report to the court; a copy of the report was served on the applicant on 24 February 1998.

On 26 March 1998 the applicant filed a pleading with the court, commenting on the expert report.  He contested several findings made by the expert and called the court’s attention to certain inconsistencies but admitted that, in principle, the report was satisfactory.

On 18 August 1998 the applicant filed a pleading with the court, commenting on all the expert reports which had to date been obtained by that court.  He maintained that the court had failed to supervise the work of Z.S. properly and that, even though all his reports had been manifestly incorrect, the court had repeatedly ordered him to submit fresh reports.  In the applicant’s opinion, Z.S.’s incompetence had been demonstrated by a simple comparison of the report submitted by K.S. (in particular, as the latter had assessed the damage sustained by the applicant at PLN 148,470 as for December 1997) and the last of the reports submitted by Z.S. (which had evaluated the total damage at PLN 48,146 as for August 1997).

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

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

On 2 November 1998 the applicant filed a pleading with the court, submitting his short comments on the value of certain construction works, as assessed by K.S.  He further requested the court to proceed with his case and give “any ruling terminating the proceedings lasting 13 years”.

On 26 November 1998 the applicant again requested the court to proceed with the case and give a final ruling.

The proceedings are pending.

b) Proceedings relating to the issue of a building permit

On 9 October 1964 the Warsaw- Mokotów District Office issued a decision permitting the applicant to convert a building located on his plot into a laundry.  This decision was apparently of a temporary nature, since it obliged the applicant to demolish the building in question by 31 December 1970.  However, the building had not in fact been demolished by this date.

On an unspecified date in 1992 the applicant requested the Mayor ( Burmistrz ) of Warsaw- Mokotów to grant him a building permit enabling him to make alterations to the existing laundry building and carry out further construction works aimed at converting the said laundry into a dwelling.  He also requested that the mayor, when considering his request, take into account another building permit, which had been granted to his neighbours on 2 July 1991.  The applicant contested the latter decision, submitting that it had been issued in breach of the law and had affected any potential development of his plot.

On 23 December 1992 the mayor issued a decision refusing to grant the applicant the permit requested.  He found that the decision issued on 9 October 1964 had been final and thus had definitively settled the manner in which the applicant’s plot could be developed.

On 6 January 1993 the applicant appealed against the above-mentioned decision, contesting its legality.

On 10 October 1996 the Warsaw Governor ( Wojewoda ) dismissed the applicant’s appeal.  On 28 October 1996 the applicant lodged a further appeal with the Supreme Administrative Court ( Naczelny Sąd Administracyjny ), contesting the legality of both decisions.

On 9 September 1997 the Supreme Administrative Court dismissed the applicant’s appeal, finding that it lacked any basis as, in particular, the contested decisions had been given in accordance with the relevant legal provisions.

COMPLAINTS

In respect of the proceedings relating to his claim for damages, which are pending before the Warsaw Regional Court, the applicant complains under Article 6 § 1 of the Convention that their length has exceeded a “reasonable time” within the meaning of this provision.

In respect of the proceedings relating to the issue of a building permit, the applicant firstly complains about their excessive length.  He further complains that these proceedings were unfair, in particular as the authorities dealing with his case gave erroneous decisions and violated numerous provisions of the domestic law.  The applicant invokes Article 6 § 1 in support of these complaints.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that the proceedings relating to the issue of a building permit were unfair, in particular as the authorities dealing with his case gave erroneous decisions and violated numerous provisions of the domestic law.

Article 6 § 1 of the Convention provides, insofar as relevant:

“ In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by ... [a] tribunal established by law. ...”

The Court, noting that the proceedings complained of related to the determination of the applicant’s right to build on his land, finds that these proceedings are of a “civil nature” for the purposes of Article 6 § 1 of the Convention (see, for example, the Allan Jacobsson v. Sweden (no. 1) judgment of 25 October 1989, Series A no. 163, pp.20-21, §§ 72-73; the Skärby v. Sweden judgment of 28 June 1990, Series A no. 180-B, pp. 37-38, § 29).

The Court further observes that the applicant, when challenging the fairness of the proceedings, does not allege any particular failure to respect his right to a fair hearing on the part of the domestic authorities but that his complaints are limited to an objection to the decisions given by these authorities in his case and the errors of law allegedly committed by them.

In that respect the Court recalls that, according to Article 19 of the Convention, the Court’s duty is to ensure the observance of the engagements undertaken by the States Parties to the Convention.  In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court, or any other domestic authority, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 45; the Garcia Ruiz v. Spain judgment of 21 January 1999, to be published in Reports 1999, § 28).

It thus follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 1 of the Convention and that it must be rejected pursuant to Article 35 § 4 of the Convention.

2. The applicant also complains under Article 6 § 1 of the Convention that the length of the above-mentioned proceedings and the length of the other proceedings, concerning his claim for damages, exceeded a “reasonable time“ within the meaning of this provision.

The Court considers that it cannot, on the basis of the file, determine the admissibility of these complains 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 that the length of the proceedings relating to his claim for damages, which are pending in the Warsaw Regional Court, and the length of the proceedings relating to the issue of a building permit, terminated by the judgment of the Supreme Administrative Court of 9 September 1997, exceeded a “reasonable time”.

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Matti Pellonpää Registrar President