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FOURTH
SECTION
CASE OF OLESIŃSKI v. POLAND
(Application
no. 12550/02)
JUDGMENT
STRASBOURG
18
December 2007
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 Olesiński v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 27 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 12550/02) 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 two Polish nationals, Mr Zdzisław Olesiński and
Mrs Helena Olesińska (“the applicants”), on 28
March 2001.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- On
19 January 2006 the
President of the Fourth Section of the Court decided to communicate
the complaint concerning the length of the proceedings to the
Government. Under the provisions of Article 29 § 3 of
the Convention, it was decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1925 and 1927, respectively, and live in
Lublin, Poland.
- On
21 May 1993 the applicants' neighbours were granted a permission to
construct a shop on the ground floor of their house. The applicants
appealed but the decision was upheld on 19 July 1993.
- On
an unspecified date in 1994 the applicants applied to have the
decision declared null and void. They submitted that the decision had
been issued in violation of the local zoning plan and that the shop
had been causing them nuisance.
- On
11 April 1994 the Minister of Planning (Minister Gospodarki
Przestrzennej i Budownictwa) dismissed their application. The
applicants appealed.
- On
22 February 1995 the Chief Building Inspector (Główny
Inspektor Nadzoru Budowlanego) allowed the appeal and quashed the
impugned decision.
- The
Chief Building Inspector informed the applicants in his letters of 30
December 1995, 30 January, 28 February and 26 March 1996 that the
proceedings could not be terminated yet and that he had fixed new
time-limits. The Inspector explained that the main reason for the
delay had been the necessity to obtain an expert opinion, which had
been ultimately submitted on 9 April 1996.
- On
18 April 1996 the Chief Building Inspector refused to annul the
decision of 21 May 1993. The Inspector informed the applicants that
the decision was final and that they could lodge a complaint with the
Supreme Administrative Court (Naczelny Sąd Administracyjny).
- On
4 June 1996 the first applicant lodged a complaint against the
decision with the Supreme Administrative Court.
- On
23 April 1998 the Supreme Administrative Court held a hearing and
rejected the applicant's complaint as it had been lodged in breach of
procedural requirements. The court established that the applicant
should have first lodged an appeal with the Chief Building Inspector
asking him to reconsider the case. The court further advised the
applicant that since the procedural mistake had occurred due to his
being wrongly advised by the Inspector in the decision of 18 April
1996, he could apply for leave to appeal out of time.
- On
25 May 1998 the first applicant appealed to the Inspector to
reconsider the case and applied for leave to lodge an appeal out of
time.
- On
4 June 1998 the Chief Building Inspector granted leave to appeal out
of time, examined the appeal, and upheld his decision of 18 April
1996.
- On
30 September 1998 the first applicant lodged a complaint with the
Supreme Administrative Court against the decision of 4 June 1998.
- On
5 October 2000 the Supreme Administrative Court dismissed the
complaint.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Under
Article 35 of the Code of Administrative Procedure (“the Code”)
of 1960 an administrative authority should give a decision on the
merits of a case within two months. If this time-limit has 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.
- A
party to administrative proceedings may make a complaint under
Article 37 of the Code in order to urge the relevant administrative
authority to issue a decision within the time-limits fixed in the
Code. Moreover, in cases where an authority persistently failed to do
so, a party could lodge, under sections 17, 26 and 30 of the
Supreme Administrative Court Act 1995 (“the 1995 Act”) as
in force at the material time, a complaint with the Supreme
Administrative Court against the authority's failure to give a
decision.
- In
cases where allegations of inactivity were well-founded, the Supreme
Administrative Court could oblige that authority to issue a decision.
Pursuant to section 30 of the Act, the decision of the Supreme
Administrative Court ordering an authority to put an end to its
inactivity was legally binding on the authority concerned. If the
authority did not comply with the decision, the court could, under
section 31 of the 1995 Act, impose a fine on it. It also could itself
give a ruling on the merits of the administrative case.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS
- The
applicants complained that the proceedings in their case had been
unfair. They relied on several Articles of the Convention. However,
this complaint falls to be examined under Article 6 § 1 of the
Convention which, in its relevant part, reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The
Court reiterates that, according to Article 19 of the Convention, its
duty is to ensure the observance of the engagements undertaken by the
Contracting Parties to the Convention. In particular, it is not its
function to deal with errors of fact or law allegedly committed by a
national court unless and in so far as they may have infringed rights
and freedoms protected by the Convention. Moreover, while Article 6
of the Convention guarantees the right to a fair hearing, it does not
lay down any rules on the admissibility of evidence or the way it
should be assessed, which are therefore primarily matters for
regulation by national law and the national courts (see García
Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I,
with further references).
- In
the present case the applicants did not allege any particular failure
to respect their right to a fair hearing on the part of the relevant
authorities. Indeed, their complaints are limited to a challenge to
the result of the proceedings. Assessing the circumstances of the
case as a whole, the Court finds no indication that the impugned
proceedings were conducted unfairly.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNREASONABLE LENGTH OF THE 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
Court notes that the exact date on which the applicants initiated the
proceedings in the instant case is unspecified. The Government failed
to clarify this issue and they submitted that the proceedings had
started when the applicants had initiated the proceedings for
annulment of the 1993 decision. Thus, in the particular circumstances
of the case, the Court considers that the period to be taken into
consideration began on 11 April 1994, the date on which the Minister
of Planning dealt with the applicants' motion to declare the impugned
decision null and void. The proceedings ended on 5 October 2000 when
the Supreme Administrative Court gave a final decision in the case.
The
period to be taken into consideration thus lasted 6 years and almost
6 months.
A. Admissibility
- The
Government raised a preliminary objection that the applicants had not
exhausted domestic remedies available to them under Polish law, as
required by Article 35 § 1 of the Convention. They maintained
that it was open to the applicants to make use of the usual remedies
to counteract inactivity of the authority obliged to give an
administrative decision in the case. They relied on Article 37 of the
Code of Administrative Procedure and on Articles 16 and 17 of the
Supreme Administrative Court Act 1995, submitting that the applicants
could lodge complaints about the inactivity of the relevant
administrative body, first with the higher authority and,
subsequently, with the Supreme Administrative Court.
- The
applicants contested these arguments.
- The
Court first notes that the remedies relied on by the Government can
be used against the inactivity of an authority obliged to give an
administrative decision, as provided for by Article 35 of the Code.
However, in the present case the inactivity, and the substantial
delay thus caused, occurred not before an administrative authority
but on two occasions before the Supreme Administrative Court. It
occurred first between 4 June 1996 and 23 April 1998, and, on
second occasion, between 30 September 1998 and 5 October
2000. The Court observes that the Government did not point to the
existence of any domestic remedy that could be regarded, at the
material time, as an effective remedy for delays occurring before the
Supreme Administrative Court.
- It
follows that 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
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 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. In
particular, the Court notes that the case lay dormant before the
Supreme Administrative Court on one occasion for over 21 months and
on a second one for 24 months. No explanation has been provided by
the Government for such substantial delays. 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.
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 40,000 Polish zlotys (PLN) in respect of pecuniary
damage and PLN 50,000 for non-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 considers that the applicants must have sustained
non-pecuniary damage. Ruling on an equitable basis, the Court awards
the applicants 3,500 euros (EUR) under the head of non-pecuniary
damage.
B. Costs and expenses
- The
applicants also claimed PLN 10,000 for the costs and expenses
incurred both before the domestic courts and before the Court.
- The
Government contested the claims and submitted that only costs
actually incurred by the applicant before the Court should be taken
into consideration.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were 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 and considers it
reasonable to award the applicants, who were not represented before
the Court by a lawyer, the sum of EUR 100 for the proceedings
before the Court.
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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,500
(three thousand five hundred euros) in respect of non-pecuniary
damage and EUR 100 (one hundred euros) for costs and expenses, to be
converted into Polish zlotys at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 18 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
