Přehled
Rozhodnutí
FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 24831/05
by Jerzy ROMANN
against Poland
The European Court of Human Rights (Fourth Section), sitting on 14 November 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr M. Pellonpää,
Mr K. Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 23 June 2005,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the partial decision of 29 November 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Jerzy Romann, is a Polish national who was born in 1926 and lives in Poznan. He was represented before the Court by Mr Leonard Cyrson, a lawyer practising in Poznań.
The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 March 1999 the applicant lodged a request with the Konin District Construction Inspector for a review of the lawfulness of the construction of a sewage system on his estate. On 13 July 1999 the Konin District Construction Inspectorate discontinued the proceedings as it found that the departure from the construction permit had not been serious. The applicant appealed.
On 14 September 1999 the Konin Regional Construction Inspectorate quashed the decision as it found that the departure from the construction permit was serious enough to warrant an examination of whether the construction was lawful.
Concurrently, on 28 January 2000 the applicant lodged a request for annulment of the construction permit given to the investor - the Kazimierz Biskupi Municipality (Gmina Kazimierz Biskupi), by the Director of the Konin District Office (Kierownik Urzędu Rejonowego w Koninie). On 20 September 2000 the Konin District Municipality (Starostwo Powiatowe w Koninie) annulled the construction permit given to the investor.
On 1 February 2000 the Konin District Construction Inspectorate issued a decision by which it found the departure from the construction permit to be serious, but also found that the applicant had given his consent to this. It obliged the investor to bring the works into conformity with the law. The applicant appealed, challenging the finding that he had consented to a departure from the construction permit.
On 17 April 2000 the Regional Construction Inspectorate upheld the decision. On 12 May 2000 the applicant lodged a complaint with the Supreme Administrative Court.
On 23 November 2001 the Supreme Administrative Court gave a judgment by which it quashed the decisions of 17 April 2000 and 1 February 2000. It found the construction unlawful as being in breach of the construction permit.
On 9 April 2002 the applicant lodged a complaint about the inactivity of the District Construction Inspectorate. On 18 April 2002 the Regional Construction Inspectorate issued a decision in which it upheld the complaint.
On 10 May 2002 the District Construction Inspectorate gave a decision in which it found that the sewage system works had manifestly departed from the construction permit and ordered the investor to make the necessary changes to the construction in order to bring it into conformity with the law. The applicant appealed, seeking the demolition of the construction works.
On 10 June 2002 the Regional Construction Inspectorate quashed the decision and remitted the case to a lower authority.
On 9 July 2002 the District Construction Inspectorate issued a decision ordering the investor to demolish the sewage system built on the applicant’s estate. The applicant’s opponent appealed.
On 5 August 2002 the Regional Construction Inspector upheld the decision of 9 July 2002. On 5 September 2002 the applicant’s opponent appealed.
On 1 December 2004 the Regional Administrative Court quashed the judgment of 5 August 2002 and the decision of 9 July 2002. On 20 January 2005 the applicant appealed.
On 28 February 2005 the cassation appeal was rejected as the applicant had failed to pay court fees within the prescribed time-limit.
B. Relevant domestic law
1. Inactivity of administrative authorities
For a description of domestic law, see: Koss v. Poland, no. 52495/99, judgment of 28 March 2006.
2. Length of proceedings [1]
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 zwłok i- “the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings. A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section 2 read in conjunction with section 5(1) of the 2004 Act.
On 18 January 2005 the Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Law produced legal effects as from the date of its entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date, but only when they had not yet been remedied.
COMPLAINTS
The applicant complained under Article 6 of the Convention about the excessive length of proceedings.
On 4 April 2006 the Court received the applicant’s letter in which he also complained about the breach of his property rights under Article 1 of Protocol No. 1 and requested this complaint to be joined to the current application. In particular, he complained that as a result of the administrative proceedings described above, he had been restricted in the enjoyment of his possessions.
THE LAW
1. The applicant’s first complaint relates to the length of the proceedings, which began on 29 March 1999 and ended on 28 February 2005. They therefore lasted 5 years, 11 months and 3 days before three instances.
However, pursuant to 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 ...”.
The Government were of the opinion that the applicant had failed to exhaust domestic remedies in that he had not lodged a complaint under the 2004 Act. The Government noted that the second set of judicial administrative proceedings, which commenced on 5 September 2002, had lasted over two years when the 2004 had entered into force. Therefore, in respect of this set of proceedings the applicant could have availed himself of the remedy provided for by the 2004 Act, but he failed to do so.
The applicant did not address this issue.
The Court notes that although the applicant lodged a complaint about inactivity in respect of the non-judicial stage of the administrative proceedings, he failed to lodge a complaint under the 2004 Act in respect of the judicial stage thereof.
The first set of judicial administrative proceedings in the present case lasted from 12 May 2000 to 23 November 2001; the second one from 5 September 2002 to 28 February 2005. In respect of the second set of proceedings the applicant could have availed himself of the remedy under the 2004 Act, the more so since the proceedings were of considerable length (over two years). Therefore the Court finds that the applicant did not exhaust domestic remedies.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. The second complaint relates to the alleged breach of the applicant’s property rights. As the final decision had been taken on 28 February 2005 and the applicant lodged his complaint on 4 April 2006, he did not comply with the six-month requirement.
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-compliance with the six-month requirement.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Declares the remainder of the application inadmissible.
T.L. Early Nicolas Bratza
Registrar President
[1] For a more detailed presentation of the relevant domestic law see Ratajczyk v. Poland, no. 11215/02, judgment of 18 July 2006; Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005‑…