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GAWLIK v. POLAND - 26764/08 [2011] ECHR 14 (11 January 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/14.html
Cite as:
[2011] ECHR 14
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FOURTH
SECTION
CASE OF GAWLIK v. POLAND
(Application
no. 26764/08)
JUDGMENT
STRASBOURG
11 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Gawlik v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Ján Šikuta,
President,
Lech Garlicki,
Vincent A. de Gaetano,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 6 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 26764/08) 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 two Polish
nationals, Mr Zbigniew Gawlik (“the first applicant”) and
Mrs Ewa Gawlik (“the second applicant”), on 28 May 2008.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wolasiewicz of the Ministry of Foreign Affairs.
On
17 December 2009 the
President of the Fourth Section decided to give notice of the
application to the Government. In accordance with Protocol No. 14,
the application was allocated to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants are a married couple. The first applicant was born in 1962
and the second applicant was born in 1960. They live in Jelenia Gora.
In
1987 the applicants bought a plot of land with a partially
constructed main house and an outhouse. In 2001 they made a few
alterations to the outhouse.
On
8 November 2001, on a request of one of the neighbours, the Jelenia
Góra District Inspector of Construction Supervision (Powiatowy
Inspektor Nadzoru Budowlanego) instituted administrative
proceedings contesting the legality of the outhouse.
On 3 December 2001 the District Inspector ordered the
applicants to stop all alterations to the building in question.
On 9 January 2002 the administrative proceedings were
stayed in order to verify whether the works were carried out in
accordance with the local development plan.
On
8 May 2002 the District Inspector gave a decision and ordered the
applicants to carry out certain works in order for the building to be
considered legal. The applicants were to do these works within a
time-limit of one month.
On
24 June 2002 the District Inspector quashed its previous decision.
On
8 August 2002 the District Inspector gave another decision ordering
the applicants to carry out extensive alterations to the outhouse.
The applicants appealed.
On
24 October 2002 the Wrocław Regional Inspector of Construction
Supervision (Dolnoslaski Wojewódzki Inspektor
Nadzoru Budowlanego) quashed the first-instance decision and
remitted the case.
On
1 April 2003 a viewing of the site was held.
On
9 June 2003 the applicants submitted an expert's opinion relating to
the legality of the building in question.
On
18 November 2003 the District Inspector informed the applicants that
the expert's opinion was not complete. They submitted the relevant
document on 20 December 2003.
On
13 April 2004 the District Inspector informed the applicants that the
proceedings were pending and the legality of the building was being
considered.
On
1 December 2004 the District Inspector gave a decision and ordered
the applicants to demolish the outhouse. The applicants appealed. On
14 March 2005 the Regional Inspector of Construction Supervision
again quashed the first-instance decision and remitted the case.
On
15 December 2005 the District Inspector again ordered the applicants
to demolish the building in question. On the applicants' appeal, on
21 February 2006 the Regional Inspector upheld the first-instance
decision.
On
19 October 2006 the Wrocław Regional Administrative Court
quashed both decisions and remitted the case to the first-instance
authority.
On
27 July 2007 the applicants lodged a complaint under Article 37 §
1 of the Code of Administrative Procedure with the Regional Inspector
(about the delay in the proceedings).
On
22 August 2007 the Regional Inspector replied that the District
Inspector was thoroughly examining the case in order to avoid any
errors. While indeed the proceedings were conducted slowly, at this
stage of the procedure he did not see any reason to intervene.
On
11 September 2007 the District Inspector asked the applicants to
submit an expert's opinion on the technical conditions of the
outhouse. The opinion was submitted on 26 October 2007. Subsequently,
the District Inspector on several occasions asked the applicants to
submit additional information in particular as regards the expert's
qualifications. They submitted the required documents on 31 December
2007 and maintained that there was no need for any additional
information.
On
15 April 2008 the District Inspector ordered an expert's opinion at
the applicants' expense.
On
3 July 2008, in reply to the applicants' complaint the Regional
Inspector confirmed that there had been a delay in the proceedings
and ordered the District Inspector to proceed with the case within
the time-limit of 14 days.
On
15 September 2008 the expert submitted his opinion. The District
Inspector also conducted a viewing of the site.
On
17 September 2008 the District Inspector informed the parties that an
administrative decision would be delivered and they could acquaint
themselves with the evidence collected.
On
2 October 2008 the applicants requested the District Inspector to
comply with the instructions given by the Warsaw Administrative Court
in its earlier judgment of 19 October 2006.
On
9 March 2009 the District Inspector ordered the applicants to submit
yet another expert's opinion as, allegedly, the opinions already
submitted were not correct.
On
10 June 2009 the District Inspector ordered an expert's opinion at
the applicants' expense. On 22 June 2009 the applicants appealed.
They stressed that they had already submitted several extensive
expert opinions and that the administrative authority had all the
necessary evidence to deliver a decision.
The
proceedings are pending before the District Inspector.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic law and practice concerning
remedies for the excessive length of administrative proceedings, in
particular the applicable provisions of the Code of Administrative
Procedure and the Act on Proceedings before Administrative Courts,
are described in the cases of Grabiński v. Poland
no. 43702/02, §§ 60-65, 17 October 2006,
Koss v. Poland, no. 52495/99, §§ 21-25,
28 March 2006, and Kaniewski v. Poland,
no. 8049/02, §§ 22-28, 8 November 2005.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained that the length of the administrative
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
period to be taken into consideration began on 8 November 2001
and has not yet ended.
A. Admissibility
The
Government raised a preliminary objection that the applicants had not
exhausted domestic remedies available to them under Polish law. They
underlined that the applicants did not attempt to pursue all
effective domestic remedies with respect to their complaint about the
length of the administrative proceedings.
The
Government stressed that applicants had only on one occasion lodged
an appeal with the higher authority under Article 37 § 1 of the
Code of Administrative Procedure. They maintained that under Article
17 of the Law of 11 May 1995 on the Supreme Administrative Court the
applicants could have further lodged a complaint with the Supreme
Administrative Court. The Government further submitted that after
1 January 2004, that is after the date of the entry into
force of the Law of 30 August 2002 on Proceedings before
Administrative Courts, which replaced the 1995 Act, the applicants
could have made use of Section 3 § 2 of the 2002 Act which
contains provisions analogous to Section 17 of the 1995 Act. Finally,
they argued that the applicants had failed to lodge a compensation
claim with a civil court in order to seek redress for the alleged
damage which had resulted from the inactivity of the administrative
authorities. They relied on Articles 417 and 417¹ § 3 of
the Civil Code.
The
applicants claimed that they had exhausted all available domestic
remedies.
The Court notes the applicants lodged a complaint
about inactivity on the part of the
administrative authorities (see paragraph 20 above).
The competent supervision body found the complaint well-founded and
ordered the proceedings to be accelerated (see paragraph 24). In
these circumstances the Court does not consider that the applicants
should have lodged a further complaint with the Supreme
Administrative Court in order to fulfil their obligation under
Article 35 § 1.
The Court further observes that according to Article
417¹ § 3 of the Civil Code no claim for damages resulting
from the unreasonable length of administrative
proceedings
may arise unless it has been formally determined that there
has been an unlawful failure to issue an administrative decision
within the relevant time-limits.
The
Court reiterates that, although Article 35 § 1 requires that
complaints intended to be brought subsequently before the Court
should have been made to the appropriate domestic body, it does not
require that, in cases where the national law provides for several
parallel remedies in various branches of law, the person concerned,
after an attempt to obtain redress through one such remedy, must
necessarily try all other means (see Kaniewski cited
above, § 37). The Court considers therefore that, having
availed themselves of some of the possibilities available to them
within the administrative procedure system, the applicants were not
required to embark on another attempt to obtain redress by bringing
civil proceedings or another form of administrative action for
compensation.
Accordingly,
the Court concludes that in the circumstances of the case seen as a
whole the Government's plea of inadmissibility on the ground 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 also
notes 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 applicants and the relevant authorities and what
was at stake for the applicants 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 the
proceedings was excessive and failed to meet the “reasonable
time” requirement.
There has accordingly been a breach of Article 6 §
1.
II. 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 70,000 Polish zlotys in respect of non pecuniary
damage and PLZ 1,800 in respect of pecuniary damage.
The
Government contested these claims.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicants EUR 3,600 in respect of
non pecuniary damage.
B. Costs and expenses
The
applicants did not make any claims for the costs and expenses.
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 application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicants, within three months,
EUR 3,600 (three thousand six hundred euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable, 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;
4 Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 11 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ján Šikuta
Deputy
Registrar President
