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ISKRZYCCY v. POLAND - 9261/02 [2010] ECHR 1278 (14 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1278.html
Cite as:
[2010] ECHR 1278
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FOURTH
SECTION
CASE OF
ISKRZYCCY v. POLAND
(Application
no. 9261/02)
JUDGMENT
STRASBOURG
14
September 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Iskrzyccy
v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Ján Šikuta,
Mihai
Poalelungi,
Nebojša Vučinić,
judges,
and Fatoş Aracı,
Deputy
Section Registrar,
Having
deliberated in private on 24 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 9261/02) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Polish nationals, Mr Tadeusz Iskrzycki and
Mrs Janina Iskrzycka (“the applicants”), on 20
February 2002.
The
applicants were represented by Mr Wojciech Gąsiorowski, a lawyer
practising in Nowy Sącz. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
The
applicants alleged, in particular, that the length of two sets of
administrative proceedings in which they were involved, had exceeded
a “reasonable time”.
The
applicants and the Government each submitted observations on the
merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants, Mr Tadeusz Iskrzycki and Mrs Janina Iskrzycka, were born
in 1941 and 1949 respectively and live in Rabka.
A. Administrative proceedings for a building permit for
a cemetery
On an unspecified date in 1992
the Grassroots Committee for the Construction of a Communal Cemetery
in Ponice (Komitet Czynu Spolecznego
Budowy Cmentarza Komunalnego w Ponicach)
applied to the Head of the Nowy Targ District Office (Kierownik
Urzędu Rejonowego) for
permission to build a cemetery in the applicants' neighbourhood.
On 18 May 1993 the Head of the
Nowy Targ District Office granted permission.
On an unspecified date the
applicants appealed against that decision.
On 7 July 1993 the Nowy Sącz
Governor (Wojewoda Nowosądecki)
upheld the decision of 18 May 1993.
On an unspecified date the
applicants lodged a complaint (skarga)
against that decision with the Supreme Administrative Court.
On 12 February 1996 the Supreme
Administrative Court gave judgment and quashed both decisions.
Following an inspection of the
site and having found that the building works were almost complete,
on 9 July 1996 the Head of the Nowy Targ District Office ordered that
the building works be suspended.
On 9 September 1996 the Head of
the Nowy Targ District Office gave a decision ordering the investor
to carry out some additional activities, including obtaining a report
from a hydrological expert on the land around the cemetery and a
survey of all the land within a 150-metre radius of the cemetery.
On an unspecified date the
applicants appealed against that decision.
On 11 December 1996 the Nowy
Sącz Governor upheld the challenged decision.
On an unspecified date the
applicants lodged a complaint with the Supreme Administrative Court
against the Mayor of Rabka (Burmistrz)
about the non-enforcement of the
Supreme Administrative Court's judgment of 12 February 1996. They
relied on Article 31 of the Code of Administrative Proceedings in
force at the relevant time and requested that a fine be imposed on
the Mayor of Rabka.
On 12 November 1997
the Supreme Administrative Court rejected the complaint about the
inactivity on the part of the administrative authorities, finding
that the applicants had failed to lodge their complaint in accordance
with procedural requirements.
The administrative authorities
failed to carry out the duties imposed on them by the decision of 9
September 1996. Therefore, on 5 September 2003, the Nowy
Targ District Inspector of Construction Supervision (Powiatowy
Inspektor Nadzoru Budowlanego) gave
a decision and ordered the demolition of the technical infrastructure
of the cemetery (the fence, access ways and plots and the storm
drainage system). The demolition order did not concern the graves
which were already in the cemetery.
On an unspecified date the Nowy
Sącz Governor appealed against that decision.
On 12 January 2004 the
Małopolski Inspector of Construction Supervision remitted the
case for re-examination.
On 22 November 2004 the Nowy
Targ District Inspector of Construction Supervision gave a decision
allowing the Mayor of Rabka and the Grassroots Committee for the
Construction of a Communal Cemetery in Ponice to use the cemetery in
accordance with its purpose (pozwolenie
na użytkowanie).
On 8 December 2004 the
applicants appealed.
On 13 December 2005 the
Małopolski Inspector of Construction Supervision declared the
decision of 22 November 2004 null and void.
On 27 February 2006 the Chief
Inspector of Constructor Supervision (Główny
Inspektor Nadzoru Budowlanego)
upheld the challenged decision.
On an unspecified date the
Committee for the Construction of a Communal Cemetery in Ponice
lodged a complaint with the Warsaw Regional Administrative Court.
On 4 October 2006 the Regional
Administrative Court dismissed the Committee's complaint
The proceedings are pending
before the District Inspector of Construction Supervision, who, on 19
February 2010, informed the applicants' lawyer that, following the
Supreme Administrative Court's judgment of 4 October 2006, no
measures to re-examine the case had been undertaken because “the
case file had not yet been sent back from the appellate
administrative authority”.
B. Administrative proceedings to change the water
supply (o nakazanie zmiany ujęcia wody)
On 4 June 1998 the Nowy Targ
Sanitary Inspector (Państwowy
Terenowy Inspektor Sanitarny) gave a
decision and ordered the applicants to change their water supply by
30 June 1998.
On an unspecified date the
applicants appealed against that decision.
On 30 June 1998 the
Nowy Sącz Regional Sanitary
Inspector (Państwowy Wojewódzki
Inspektor Sanitarny) upheld the
challenged decision.
On an unspecified date the
applicants lodged a complaint against that decision with the Supreme
Administrative Court.
On 7 October 2002 the Supreme
Administrative Court quashed the challenged decision and the
preceding decision of the first-instance administrative authority.
On 8 April 2003 the Nowy Targ
Sanitary Inspector (Państwowy
Inspektor Sanitarny) gave a decision
and ordered the applicants to change their water supply to a source
from outside the protection zone around the cemetery. The Inspector
found that the applicants were using a well in close proximity to the
cemetery.
On an unspecified date the
applicants appealed against that decision.
On 11 June 2003 the Kraków
Regional Sanitary Inspector (Państwowy
Wojewódzki Inspektor Sanitarny)
upheld the challenged decision.
On 14 November 2005 the Kraków
Regional Administrative Court quashed the challenged decision as well
as the earlier decision of the first instance administrative
authority.
On an unspecified date the
Kraków Regional Sanitary Inspector lodged a cassation appeal
with the Supreme Administrative Court.
On 18 January 2006 the
applicants' lawyer lodged a reply to the cassation appeal with the
Supreme Administrative Court and requested the court to dismiss it.
On the same day the applicants'
lawyer complained to the Kraków Regional Administrative Court
of inactivity on the part of the administrative authorities.
On 25 May 2006 the Supreme
Administrative Court dismissed the cassation appeal.
On 5 September 2006 the Kraków
Regional Administrative Court dismissed the complaint.
C. Civil proceedings for compensation
On 6 January 2003 the applicants
lodged a claim against the Rabka Municipality (Miasto
i Gmina Rabka). They sought an order
of exhumation of the bodies buried in the cemetery or compensation in
the amount of 2,000,000 Polish zlotys (PLN).
On 28 June 2004 the Nowy Sącz
Regional Court (Sąd Okręgowy)
dismissed the applicants' claim. It held that the way in which the
Rabka Municipality had used their property (namely, by constructing a
cemetery), although it had created some inconvenience for the
applicants, could not be classified as “excessive” in
respect of the normal use of a property.
On 30 July 2004 the applicants
appealed.
On 4 February 2005 the Kraków
Court of Appeal (Sąd Apelacyjny)
dismissed the appeal.
On 25 May 2005 the applicants
lodged a cassation appeal.
On 15 November 2005 the Supreme
Court refused to examine their cassation appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic law
concerning the remedies for the inactivity of the administrative
authorities at the material time is set out in the Court's judgment
in the case of Grabiński
v. Poland, no. 43702/02, §§
60-65, 17 October 2006.
The
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings, in particular the
applicable provisions of the 2004 Act, are described in the Court's
decisions in the cases of Charzyński
v. Poland no. 15212/03 (dec.), §§
12-23,
ECHR 2005 V; Ratajczyk
v. Poland no. 11215/02 (dec.),
ECHR 2005-VIII; and the judgment in the case of Krasuski
v. Poland, no. 61444/00,
§§
34-46, ECHR 2005-V.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF BOTH SETS OF
ADMINISTRATIVE PROCEEDINGS
The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government contested that argument.
The
overall period of the administrative proceedings began, in respect of
the first set of the proceedings, on an unspecified date in 1992.
However, the period to be taken into
consideration began only on 1 May 1993 when the recognition
by Poland of the right of individual petition took effect. The period
in question has not yet ended. It has thus lasted over
seventeen years to date. As regards the second set of proceedings,
the period to be taken into account began on 4 June 1998 and ended on
25 May 2006. It thus lasted seven years, eleven months and twenty-two
days.
A. Admissibility
The
Government submitted that the applicants had not exhausted the
remedies available under Polish law in respect of the excessive
length of administrative proceedings. They argued that the applicants
had had the possibility of lodging, with the Polish civil courts, a
claim for compensation for damage caused by the excessive length of
the administrative proceedings, under Article 417 of the Civil Code.
To this end they submitted a judgment of the Kraków Court of
Appeal which had awarded just satisfaction for the excessive length
of civil proceedings to an applicant, K.M., who had based her claim
on the relevant provisions of the Polish Civil Code concerning the
protection of personal rights. The Government also submitted several
other judgments in which just satisfaction had been awarded to
applicants. Those judgments, however, contained no reasoning.
The
applicants submitted that they could not have been expected to
exhaust the remedy relied on by the Government. In their view, there
was no well-established practice in that respect and the judgment of
the Kraków Court of Appeal had constituted an exceptional
approach by the Polish courts to the question of whether the right to
have a case heard within a reasonable time was a “personal
right” (prawa osobiste) under the Civil Code.
The
Court first notes that it has already examined whether, after
18 December 2001, a compensation claim in tort as provided for
by Polish civil law was an effective remedy in respect of complaints
about the length of proceedings. It held that no persuasive arguments
had been adduced to show that Article 417 of the Civil Code could at
that time be relied on for the purpose of seeking compensation for
the excessive length of proceedings or that such an action offered
reasonable prospects of success (see Małasiewicz v. Poland,
no. 22072/02, §§ 32-34, 14 October 2003, and, for
administrative proceedings, Boszko v. Poland,
no. 4054/03, § 35, 5 December 2006). The Court
sees no grounds on which to depart from those findings in the present
case. Indeed, it appears that the Kraków Court of Appeal's
judgment submitted by the Government is of a rather exceptional
character and does not reflect a well-established practice of the
Polish courts. As regards the remaining judgments submitted by the
Government, the Court notes that they contain no reasoning and thus
it is impossible to examine in what factual circumstances the
relevant judgments were given. In any event, none of the cases relied
on by the Government concerned the excessive length of administrative
proceedings.
Secondly,
the Court notes that, in respect of the second set of proceedings the
applicants lodged a complaint with the Regional Administrative Court
alleging inactivity on the part of the administrative authorities
and, in respect of the first set of proceedings they did not make use
of that remedy. However, the length of both sets of administrative
proceedings is attributable to the fact that the decisions were given
and subsequently quashed, rather than to general inactivity on the
part of the administrative authorities (see, mutatis mutandis,
Stevens v. Poland, no. 13568/02, §45, 24 October
2006). What is more, both sets of proceedings were conducted by
administrative authorities and, subsequently, by administrative
courts at a time when no remedy against the excessive length of
judicial proceedings was available in domestic law, that is before
the entry into force of 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”). The decisions given in both sets of
proceedings were remitted several times not only by higher
administrative authorities but also by the administrative courts
(see paragraphs 11, 20 and 32 above). As regards the remedies
provided for by the 2004 Act, the Government admitted in their
observations that they would not be applicable to the applicants'
case.
In
these circumstances the Court considers that the applicants did not
have at their disposal any remedy against the excessive length of
administrative proceedings which could reasonably be considered
“effective” in the circumstances of the present case.
For
these reasons, the Government's plea of inadmissibility on the
grounds of non-exhaustion of domestic remedies must be dismissed.
The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention.
It considers that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities, and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable
of persuading it to reach a different conclusion in the present
case. Having regard to its case-law on the subject, the Court
considers that in the instant case the length of both sets of
administrative proceedings was excessive.
There
has accordingly been a breach of Article 6 § 1 of the Convention
in respect of both sets of administrative proceedings.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicants also complained
that the building of the cemetery in the neighbourhood had seriously
affected the value of their property and the revenue from their
business; they ran a guesthouse and organised holidays for children
during the winter and summer school holidays.
The applicants further
complained under Article 6 of the Convention of the unreasonable
length of the civil proceedings in which they had been involved.
As
regards the first complaint, the Court considers that even if it was
to be examined under Article 1 of Protocol No. 1, it is in any event
inadmissible as being premature; the relevant administrative
proceedings are still pending. As regards the complaint concerning
the excessive length of the civil proceedings, the Court notes that
they terminated on 15 November 2005, that is after the
entry into force of the 2004 Act. Pursuant to section 5 of the 2004
Act, it was open to persons such as the applicants in the present
case to lodge a complaint about the unreasonable length of the
proceedings with the relevant domestic court. The
applicants did not make use of the remedy provided for under the 2004
Act. Accordingly, the complaint about the unreasonable length of the
civil proceedings must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicants claimed 200,000 Polish zlotys (PLN) in respect
of non-pecuniary damage.
The
Government considered this claim unjustified and exorbitant.
The
Court considers that the applicants must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards them jointly 15,000
euros (EUR) under that head.
B. Costs and expenses
The
applicants' lawyer claimed PLN 35,010 for costs and expenses. He
submitted three copies of invoices issued in 1998, 2002 and 2003 for
legal representation before the domestic administrative authorities.
The lawyer did not make any claim as regards costs and expenses
before the Court.
The
Government considered that the costs and expenses claimed were not
connected with the applicants' complaint concerning the excessive
length of the proceedings and requested the Court to dismiss the
claim.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints as regards the
unreasonable length of both sets of administrative proceedings
admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1
of the Convention on account of the unreasonable length of both sets
of administrative proceedings;
Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 15,000 (fifteen thousand euros), plus any tax that may be
chargeable to the applicants, in respect of non-pecuniary damage, to
be converted into Polish zlotys at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 14 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
