FOURTH SECTION

DECISION

Application no . 29078/07 Janina and Damazy LASZCZAK against Poland

The European Court of Human Rights (Fourth Section), sitting on 11 March 2014 as a Committee composed of:

Nona Tsotsoria, President, Paul Mahoney, Krzysztof Wojtyczek, judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 25 June 2007,

Having regard to the comments submitted by the respondent Government and the observations in reply submitted by the applicants;

Having deliberated, decides as follows:

THE FACTS

1. The first applicant , Ms Janina Laszczak , was born in 1930 and lives in Bielsko-Biała. The second applicant , Mr Damazy Laszczak , was born in 1927 and died on 17 October 2011. He had been living in Bielsko-Biała. They are both Polish nationals.

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

A. The circumstances of the case

3 . The applicants live in a detached house in Bielsko-Biała. The applicants ’ neighbour, W.W. owns a plot directly adjacent to the applicants ’ house.

1. The first set of proceedings (administrative proceedings in respect of the validity of the decision authorising the conversion)

4. On 25 January 1988 the Bielsko-Biała Municipal Architect ( Architekt Miejski ) issued a decision allowing W.W. to convert the outhouse situated in the vicinity of the applicants ’ plot into a workshop manufacturing rubber elements.

5. On an unspecified date in August or September 1991 the applicants requested the Bielsko-Biała Governor to declare the decision of 25 January 1988 null and void.

6. On 10 October 1991 the Bielsko-Biała Governor refused their request. The Governor noted that the applicants had been notified of the decision issued on 25 January 1988 and had not appealed against it. He further found that the said decision had been issued in accordance with the law. As the decision created irreversible legal consequences, it could not have been declared null and void.

7. On 22 May 1992 the Minister of Planning and Construction ( Minister Gospodarki Przestrzennej i Budownictwa ) quashed the Bielsko-Biała Governor ’ s decision of 10 October 1991 and declared the Municipal Architect ’ s decision of 25 January 1988 null and void. The Minister found that the conversion of the outhouse into a rubber workshop had been incompatible with the local development plan. W.W. filed a complaint against this decision with the Supreme Administrative Court. On 31 August 1992 the court decided to suspend the execution of the Minister ’ s decision.

8. On 1 March 1993 the Supreme Administrative Court quashed the Minister of Planning and Construction ’ s decision of 22 May 1992. It held that the Minister had to clarify what was the designation of the W.W. ’ s property in the local development plan as this issue was essential for the legality of the decision of 25 January 1988.

9. On 29 October 1993 the Minister of Planning and Construction quashed the Governor ’ s decision of 10 October 1991 and declared the Municipal Architect ’ s decision of 25 January 1988 null and void. The Minister established that the location of W.W. ’ s rubber workshop had been incompatible with the provisions of the local development plan. W.W. filed a complaint against the Minister ’ s decision. On 22 September 1994 the Supreme Administrative Court dismissed the complaint.

2. The second set of proceedings (grant of a permit for the use)

10. On 10 May 1988 the Municipal Architect issued a permit for the use ( pozwolenie na użytkowanie ) of the workshop. It appears that the applicants were not notified of that decision until 1991.

3. The third set of proceedings (administrative proceedings in respect of the validity of the permit for the use of the workshop)

11. On 22 December 1994 the Bielsko-Biała Governor reopened ex officio the administrative proceedings terminated by the final decision of 10 May 1988.

12. On 23 December 1994 the Bielsko-Biała Governor declared the Municipal Architect ’ s decision of 10 May 1988 null and void as a consequence of the annulment of the decision of 25 January 1988. On 31 March 1995 the Chief Inspector of Building Supervision (Główny Inspektor Nadzoru Budowlanego ) quashed the Governor ’ s decision and discontinued the proceedings concerning the validity of the decision of 10 May 1988. The Chief Inspector found that the conditions for declaring that decision null and void stipulated in Article 156 § 1 (2) of the Code of Administrative Procedure had not been fulfilled and that the first-instance authority should have instead reopened the proceedings. The applicants lodged a complaint with the Supreme Administrative Court. They alleged that the Chief Inspector ’ s decision had been unfavourable but submitted no legal arguments against it. On 6 March 1996 the Supreme Administrative Court upheld the Chief Inspector ’ s decision.

13. O n 29 May 1995, f ollowing the suggestion of the Chief Inspector, the Bielsko-Biała Governor reopened ex officio the administrative proceedings terminated by the final decision of 10 May 1988. The Governor decided that the Mayor of Bielsko-Biała would be the competent authority to examine the case.

14. On 27 July 1995 the Mayor of Bielsko-Biała reopened the proceedings and refused to declare the decision of 10 May 1988 null and void. It appears that the applicants and their neighbour did not appeal against this decision which then became final.

4. The fourth set of proceedings (administrative proceedings in respect of the validity of the Mayor ’ s decision of 27 July 1995 and of the permit for the use of the workshop)

15. On 11 January 2000 the applicants requested the Silesia Governor to declare the Mayor ’ s decision of 27 July 1995 null and void. On 17 April 2000 the Governor instituted the proceedings and refused the applicants ’ request on 14 July 2000. On the applicants ’ appeal, on 15 September 2000 the Chief Inspector of Building Supervision quashed the Governor ’ s decision and declared the Mayor ’ s decision of 27 July 1995 null and void. In this decision the applicants were informed of the possibility of seeking damages under Article 160 of the Code of Administrative Procedure in respect of the issuance of a defective administrative decision. On 5 July 2002 the Supreme Administrative Court dismissed a further appeal by W.W. against the Chief Inspector ’ s decision of 15 September 2000.

16. On 20 November 2000 the Mayor of Bielsko-Biała quashed its decision of 27 July 1995 and refused to grant W.W. the permit for the use of the workshop. Following W.W. ’ s appeal, the Silesia Governor quashed the first-instance decision on 12 March 2001. The Governor further refused to quash the decision of 10 May 1988. The Governor referred to the fact that 12 years have already elapsed since the Municipal Architect ’ s decision of 10 May 1988. The Supreme Administrative Court quashed the Governor ’ s decision on 26 February 2003. It found that the second-instance authority had not properly applied the relevant provisions of the Code of Administrative Procedure.

17. Subsequently, on 21 July 2003 the Governor again quashed the Mayor ’ s decision of 20 November 2000. It further held that the Municipal Architect ’ s decision of 10 May 1988 had been given contrary to the law. However, due to the lapse of time it was impossible to quash it. The applicants filed their appeal on 12 August 2003. On 23 June 2005 the Gliwice Regional Administrative Court dismissed the applicants ’ appeal against this decision. The court noted in the judgment that the Governor ’ s decision opened for the applicants a possibility of seeking damages pursuant to Article 153 § 1 of the Code of Administrative Procedure.

18. On 15 September 2005 the applicants filed a cassation appeal with the Supreme Administrative Court. They alleged that W.W. on the basis of a void administrative decision had been running the rubber workshop. They further complained about the air pollution caused by this activity. On 6 December 2006 the Supreme Administrative Court dismissed their cassation appeal. The judgment was served on the applicants ’ lawyer on an unspecified date and on the applicants on 10 May 2007.

5. Complaints about inactivity of the administrative authorities in respect of the fourth set of proceedings

19. On 29 August 2002 the applicants wrote to the Ministry of Internal Affairs complaining about the inactivity of the Silesian Regional Inspector of Building Supervision. Their complaint was forwarded to the Chief Inspector of Building Supervision who requested explanations from the Regional Inspector on 18 September 2002. The applicants did not provide information about the outcome of their complaint.

20. On 7 July 2003 the applicants complained to the Chief Inspector of Building Supervision about the inactivity of the Silesia Governor in the follow-up to the Supreme Administrative Court ’ s judgment of 26 February 2003. On 1 August 2003 the Chief Inspector set a 30-day time-limit for the Governor of Silesia to issue a decision in the case under Article 37 § 2 of the Code of Administrative Procedure. However, meanwhile, on 21 July 2003 the Governor had already given a decision.

21. On 22 November 2006 the applicants wrote to the Ministry of Internal Affairs complaining about the conduct of the various administrative authorities. They alleged, in particular, that the authorities had failed to execute a number of favourable judgments of the administrative courts in their case. Their complaint was transferred to the Chief Inspector of Building Supervision. On 15 December 2006 the Chief Inspector asked the applicants to specify their allegations. It appears that the applicants failed to comply with this request.

6. Civil proceedings

22. On 6 June 2006 the applicants submitted their compensation claim against the Silesia Governor to the President of the Bielsko-Biała Regional Court. They sought damages in respect of the issuance of unlawful administrative decisions and in respect of delays in the proceedings. The applicants relied on the Gliwice Regional Administrative Court ’ s judgment of 23 June 2005 in which that court referred to the possibility of seeking damages. On 2 August 2006 the President of the Bielsko-Biała Regional Court transmitted the applicants ’ claim to the Katowice District Court as the court to examine the claim.

23. On 26 September 2006 the Katowice District Court rejected the applicants ’ claim. It held that the Silesia Governor did not have locus standi in the proceedings and that the applicants should have sued the State Treasury. The applicants lodged an interlocutory appeal. On an unspecified date the District Court instructed them to rectify certain formal shortcomings of their interlocutory appeal. On 13 December 2006 the District Court rejected the interlocutory appeal since the applicants had failed to rectify the formal shortcomings.

B. Relevant domestic law and practice

1. Remedies against the excessive length of administrative proceedings

24. Article 35 of the Code of Administrative Procedure lays down time ‑ limits ranging from 1 month to 2 months for dealing with a case pending before an administrative authority. If these time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit. Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well ‑ founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent such delays in the future.

25. On 1 October 1995 the Law of 11 May 1995 on the Supreme Administrative Court came into force (“the 1995 Act”). According to the provisions of section 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint about inactivity on the part of an authority obliged to issue an administrative decision.

26. Pursuant to section 30 of the Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question.

27. The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Procedure before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004. Section 3 § 2(8) of the 2002 Act contains provisions analogous to section 17 of the 1995 Act. A party to administrative proceedings can lodge a complaint about inactivity on the part of an authority obliged to issue an administrative decision with an administrative court. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.

2. R emedies against the excessive length of judicial proceedings (t he 2004 Act)

28. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”) entered into force. It lays down various legal means designed to prevent and/or provide redress for the undue length of judicial proceedings. Section 3 (6) of the 2004 Act provides that a complaint may be lodged by a party to the proceedings before the administrative court.

29. On 18 January 2005 the Supreme Court adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.

COMPLAINTS

30. The applicants complained without invoking any provisions of the Convention that the administrative proceedings in their case had lasted over 20 years.

31. They further invoked Article 6 of the Convention objecting to the outcome of the administrative proceedings and alleging their unfairness. In particular, they complained about the judgment of the Gliwice Regional Administrative Court of 23 June 2005.

32. Lastly, they alleged under Article 8 of the Convention the State ’ s failure to protect their private life and home from the serious nuisance arising from the rubber manufacture.

THE LAW

A. Length of proceedings

33. The applicants complained under Article 6 § 1 of the Convention that the length of the administrative proceedings in their case had exceeded the reasonable time requirement. That Article, in its relevant part, provides:

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

34. The Government maintained that the applicants had failed to exhaust domestic remedies, as required under Article 35 § 1 of the Convention. In particular, they have failed to file an appeal to the higher administrative authority under Article 37 of the Code of Administrative Procedure, a complaint under section 17 of the 1995 Act an d, after the repeal of the 1995 Act, a complaint about the inactivity of an administrative authority under Section 3 § 2 (8) of the 2002 Law on Procedure before Administrative Courts . The effectiveness of these remedies has been already confirmed in the Court ’ s case-law.

35. The Government underlined that during almost the entire period of the proceedings, namely until 7 July 2003, the applicants had not used any of the above remedies. They had only once availed themselves of the relevant remedy by lodging on 7 July 2003 an appeal under Article 37 of the Code of Administrative Procedure about the inactivity of the administrative authority. In addition, the remedy proved to be effective, since immediately after the applicants ’ appeal, the Governor of Silesia issued a decision (see paragraph 20 above).

36. The Government refrained from expressing their position on the merits of the applicants ’ complaint.

37. The applicants contested the Government ’ s submissions.

38. Regarding the question of the beginning of the proceedings, the Court notes that when under the national legislation an applicant has to exhaust a preliminary administrative procedure before having recourse to a court, the proceedings before the administrative body are to be included when calculating the length of the civil proceedings for the purposes of Article 6 (see König v. Germany , 28 June 1978, § 98, Series A no. 27; Schouten and Meldrum v. the Netherlands , 9 December 1994, § 62, Series A no. 304; and Kiurkchian v. Bulgaria , no. 44626/98, § 51, 24 March 2005 ).

39. In the present case, the applicants generally complained about the length of the administrative proceedings. However, the Court notes that there were, in fact, four distinct sets of proceedings.

40. The first set of proceedings concerned the validity of the decision of 25 January 1988 allowing the applicants ’ neighbour to convert the outhouse into a rubber workshop. These proceedings began on an unspecified date in August or September 1991 when the applicants expressed their disagreement with the decision of 25 January 1988 by having requested that it be declared null and void (see paragraph 5 above). The proceedings ended on 22 September 1994 with the judgment of the Supreme Administrative Court (see paragraph 9 above).

41. The second set of proceedings concerned the issuance of the permit for the use of the workshop of 10 May 1988. These proceedings appear to be terminated sometime in 1991 when the applicants were notified of the decision but took no action to contest it (see paragraph 10 above).

42. The third set of proceedings was related to the validity of the permit for the use of the workshop of 10 May 1988. This set of proceedings started on 22 December 1994 when the Bielsko-Biała Governor reopened the administrative proceedings terminated by the final decision of 10 May 1988 (see paragraph 11 above). The proceedings were terminated by the Supreme Administrative Court ’ s judgment of 6 March 1996 (see paragraph 12 above).

43. The Court notes that the application was introduced on 25 June 2007 while the first, the second and the third sets of proceedings were terminated in 1994, 1991 and 1996 respectively, that is more than six months before the date on which the application was lodged. The Government have not addressed that issue in their observations. However, it is not open to the Court to set aside the application of the six months ’ rule solely because a Government have not made a prelimi nary objection based on it (see Walker v. United Kingdom (dec.), no. 34979/97, ECHR 2000-I; Belaousof and Others v. Greece , no. 66296/01, § 38, 27 May 2004; Graban v. Poland (dec.), no. 13851/02, 5 July 2005). It follows, notwithstanding other grounds of inadmissibility, that the complaint about the length of the first, the second and the third sets of proceedings has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

44. The fourth set of proceedings concerned the validity of the Mayor ’ s decision of 27 July 1995 and of the permit for the use of the workshop. They began on 17 April 2000 when the Silesia Governor instituted proceedings on the applicants ’ request for annulment of the Mayor ’ s decision of 27 July 1995 (see paragraph 15 above). The fourth set of proceedings ended on 6 December 2006 with the judgment of the Supreme Administrative Court (see paragraph 18 above). The period to be taken into consideration was thus 6 years and nearly 8 months.

45. With regard to the Government ’ s preliminary objection on the grounds of non-exhaustion, the Court has held in a number of cases against Poland that in order to comply with the requirement of exhaustion of domestic remedies in the context of lengthy administrative proceedings it was necessary to have recourse first to a hierarchical complaint about inactivity of an administrative authority as provided in Article 37 § 1 of the Code of Administrative Procedure and, if this proved unsuccessful, to a subsequent complaint to the administrative court (see, among many others, Puchalska v. Poland , no. 10392/04, § 51, 6 October 2009; Kuderewska and Kuderewski v. Poland (dec.), no. 48531/07, 9 February 2010; and Derda v. Poland , no. 58154/08, § 44, 1 June 2010).

46. With regard to the fourth set of proceedings the applicants made use of the remedy under Article 37 § 1 of the Code of Administrative Procedure in compliance with domestic law requirements in July 2003 and the Silesian Governor gave a decision even before having been ordered to do so by a higher authority (see paragraph 20 above). As this remedy proved successful there was no need for the applicants to have recourse to a subsequent complaint to the administrative court. The Court does not discern any other periods of significant inactivity in the proceedings before the administrative authorities which would require the applicants to have recourse to the remedy under Article 37 § 1 of the Code of Administrative Procedure and the subsequent complaint to the administrative court.

47. On the other hand, the Court notes that there were periods of inactivity in the proceedings before administrative courts. Until the entry into force of the 2004 Act there was no remedy under Polish law to complain about the excessive length of judicial proceedings, including before administrative courts. The 2004 Act came into effect on 17 September 2004. Accordingly, following this date, the applicants were normally required to complain about the excessive length of the proceedings before the Gliwice Regional Administrative Court and before the Supreme Administrative Court (see paragraphs 17 and 18 above). In addition, the Court recalls that in accordance with the Supreme Court ’ s resolution the 2004 Act could apply to delays which occurred before the date of its entry into force provided that they were not remedied (see paragraph 29 above). The cumulative length of the proceedings before the two administrative courts to which the 2004 remedy was applicable amounts to just over 3 years which could be then discounted from the overall period of 6 years and 8 months.

48. The period to be taken into consideration is accordingly 3 years and 8 months. During this period the applicants ’ request for annulment of the Mayor ’ s decision of 27 July 1995 and of the permit of 10 May 1988 was examined on three occasions by two levels of administrative authorities and on two occasions by the Supreme Administrative Court. It is true that there were certain delays in the examination of the relevant complaints by the Supreme Administrative Court. However, the Court notes that the case was of a certain complexity as it involved the application of the Construction Act and of the rules on local planning. In addition, the parties to the case, remaining in a long-standing dispute, used numerous procedural measures to achieve their objectives in the proceedings. Having regard to the above circumstances and the overall length of the proceedings, the Court does not consider that the fourth set of proceedings fell foul of the “reasonable-time” requirement set out in Article 6 § 1 of the Convention.

49. It follows that the complaint about the excessive length of the fourth set of proceedings is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Remaining complaints

50. The applicants also complained under Article 6 of the Convention about the outcome of the administrative proceedings and alleged their unfairness. They complained, in particular, about the judgment of the Gliwice Regional Administrative Court of 23 June 2005.

51. The Court observes that this complaint is clearly of a fourth-instance nature and the material submitted to the Court does not disclose any arbitrariness on the part of the domestic authorities or any interference with the applicants ’ Convention rights.

52. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

53. Lastly, the applicants complained under Article 8 of the Convention that the State failed to protect their private life and home from the serious nuisance arising from the rubber manufacture situated on an adjacent plot.

54. With regard to the allegedly unlawful administrative decisions of the Bielsko-Biała Municipal Architect, the Court notes that the applicants did not appeal against the Municipal Architect ’ s decision of 25 January 1988 allowing the applicants ’ neighbour to convert the outhouse into a rubber workshop. Furthermore, they could have pursued a compensation claim for damage resulting from the issuance of the defective administrative decisions under Articles 153 § 1 and 160 of the Code of Administrative Procedure (which were replaced by Article 417¹ § 2 of the Civil Code with effect from 1 September 2004). The applicants were informed of this possibility by the Chief Inspector of Building Supervision and the Gliwice Regional Administrative Court respectively (see paragraphs 15 and 17 above). They even attempted to seek damages in civil proceedings. However, their claim was rejected for failure to comply with procedural requirements (see paragraph 23 above).

55. In so far as the applicants complain about the nuisance generated by the rubber workshop, the Court notes that the applicants had the possibility of bringing a civil claim under Article 144 in conjunction with Article 222 § 2 of the Civil Code for protection of their property, namely restitution of their lawful position and cessation of infringements of their ownership rights. Had they used this remedy, they could have obtained a judicial decision compelling their neighbour to reduce or bring to an end the nuisance alleged (see Apanasewicz v. Poland , no. 6854/07 , §§ 12-16, 3 May 2011; and Pawlak v. Poland (dec.), no. 29179/06, 19 March 2013, § 66).

56. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Nona Tsotsoria Deputy Registrar President