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FOURTH
SECTION
CASE OF WÓJCICKA-SURÓWKA v. POLAND
(Application
no. 33017/03)
JUDGMENT
STRASBOURG
27
November 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 Wójcicka-Surówka v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr K. Traja,
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 6 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 33017/03) 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 a Polish national Ms M. Wójcicka-Surówka (“the
applicant”) on 29 September 2003. The applicant was represented
by Mr Z. Cichoń, a lawyer practising in Kraków.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
13 December 2005 the
Court declared the application partly inadmissible and decided to
communicate the complaints concerning the length of two sets of
proceedings. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the remainder of
the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1936 and lives in Kraków.
1. Main proceedings
- On
10 June 1997 the Mayor of the City of Kraków (Prezydent
Miasta Krakowa) issued a building permit to the
applicant's neighbour. The applicant appealed, submitting that,
according to the construction project, the proposed building would
encroach on her land. She also requested that the construction work
be stopped.
- On
22 August 1997 the Kraków City Office instituted
administrative demarcation proceedings at the applicant's request in
order to establish a boundary between the two properties.
- On
28 July 1997 the Governor of the Kraków Region (Wojewoda
Krakowski) upheld the decision of 10 June 1997. On 28
August 1997 the applicant appealed to the Supreme Administrative
Court.
- On
5 September 1997 the Construction Supervision Department of the
Kraków City Office (Wydział Nadzoru Budowlanego Miasta
Krakowa) conducted an inspection on the applicant's neighbour's
building site.
- On
12 December 1997 the administrative demarcation proceedings were
discontinued by the Kraków City Office as the parties had not
reached a settlement as to the boundary in dispute.
- On
2 April 1998 an inspection on the applicant's neighbour's building
site was again conducted by the Construction Supervision Department
of the Kraków City Office.
- On
3 April 1998 the applicant's neighbour was summoned to appear at the
Kraków City Office on 9 or 14 April 1998. The applicant's
neighbour failed to appear on the dates indicated. He eventually
appeared at the Kraków City Office on 4 May 1998.
- On
28 April 1998 the Supreme Administrative Court quashed the decisions
of 10 June 1997 and 28 July 1997 as it found that the building permit
had been issued contrary to the law and that it was necessary to
establish the disputed boundary before deciding on whether to grant a
permit.
- On
5 March 1998 the applicant informed the Kraków Regional Office
(Urząd Wojewódzki w Krakowie) that, in spite of
the Supreme Administrative Court judgment of 28 April 1998, the
construction work was being carried out on the disputed land.
- On
28 May 1998 the applicant lodged a complaint with the Kraków
Regional Office, claiming that no steps had been taken by the
authorities to prevent the construction work being carried out by her
neighbour.
- On
30 July 1998 the Kraków Regional Office informed the applicant
that it had not been obliged to stop the construction work prior to
the Supreme Administrative Court's judgment. The applicant was also
informed that following the judgment, failure by her neighbour to
comply with it would result in the Kraków City Office being
obliged to take appropriate measures.
- On
2 September 1998 the Kraków City Office decided to stay the
proceedings concerning the applicant's neighbour's construction work
in view of the fact that the issue of the boundary between the lands
had not yet been settled.
- The
proceedings concerning the suspension of the construction work are
still pending.
2. Proceedings concerning a complaint about the
excessive length of the main administrative proceedings
- On
4 October 2002 the applicant lodged with the Supreme Administrative
Court a complaint, under section 17 of the Supreme Administrative
Court Act of 11 May 1995, about inactivity on the part of
administrative organs. She submitted that, in spite of the Supreme
Administrative Court judgment, the Kraków Regional Office had
taken no steps to halt the construction work on the disputed land.
- On
2 June 2004 the Kraków Regional Administrative Court (which
had taken over the jurisdiction of the Supreme Administrative Court)
rejected the complaint as it found that the applicant had not
exhausted relevant remedies, of which she should have availed herself
prior to lodging the complaint (namely, she had not lodged a
complaint with the competent minister).
- On
14 September 2004 the applicant lodged a cassation appeal with the
Supreme Administrative Court against this decision.
- On
23 March 2005 the applicant lodged with the Supreme Administrative
Court a complaint under the Law of 17 June 2004 on complaints about
breaches 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”), in respect of the
proceedings instituted on 4 October 2002.
- On
6 April 2005 the Supreme Administrative Court dismissed the
applicant's complaint. In reasoned grounds it stated that the length
of the proceedings had been a consequence of the court's heavy
workload and that the State was not responsible for that delay. It
stated as follows:
“(...) the order of examination of cases is
established according to the date on which the application is lodged
with the court. The number of cases lodged with the court explains
why a plaintiff has to wait for the first hearing. (...). Having
regard to the above, the Supreme Administrative Court considers that
in these circumstances any excessive length of the proceedings cannot
be attributed to the State.”
- On
19 May 2005 the Supreme Administrative Court dismissed the
applicant's cassation appeal against the Kraków Regional
Administrative Court's decision of 2 June 2004.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Inactivity of administrative authorities
- The
relevant domestic law concerning remedies for the inactivity of
administrative authorities is set out in the case of Koss v.
Poland (no 52495/99, 28 March 2006).
B. Length of proceedings
- The
relevant domestic law and practice concerning remedies for the
excessive length of judicial proceedings are set out in the Court's
decisions in the cases of Charzyński v. Poland (no
15212/03 (dec.), §§ 12-23, ECHR 2005-V) and Ratajczyk v.
Poland (no 11215/02 (dec.), ECHR 2005-VIII).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant 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.
A. The proceedings concerning the applicant's
neighbour's building permit
1. Period to be taken into consideration
- The
proceedings began on 10 June 1997 and have not yet ended. They have
thus lasted to date ten years and three months for three levels of
jurisdiction.
2. The Government's preliminary objections on
non-exhaustion
(a) The Government's arguments
- The
Government submitted that the applicant had not exhausted the
remedies available under Polish law.
- They
maintained that the applicant had failed to avail herself of a remedy
provided for by section 37 § 1 of the Code of Administrative
Procedure, namely a complaint to a superior administrative authority
(in this case the competent minister).
- The
Government further maintained that as the Code of Administrative
Procedure did not provide any time-limit for lodging a complaint
about inactivity, the applicant could have lodged such a complaint
with a competent authority even after her complaint had been rejected
by the Kraków Regional Administrative Court's judgment of
2 June 2004. They also maintained that the applicant had failed
to avail herself of any domestic remedies in the period between 1998
and 2002.
(b) The applicant's arguments
- The
applicant contested the Government's arguments. She reiterated that
on 28 May 1998 she had lodged her complaint with the Kraków
Regional Office. She claimed that if the Kraków Regional
Office had considered that it was not competent to examine her case,
it should have transferred her complaint to a competent authority.
- As
to the Government's argument that she could have availed herself of
further remedies to complain about inactivity, the applicant stated
that, in the light of the Court's jurisprudence, it sufficed to have
recourse to one available remedy in order to satisfy the requirement
of exhaustion of domestic remedies.
(c) The Court's assessment
- The
Court recalls that the aim of the rule of exhaustion of domestic
remedies referred to in Article 35 § 1 of the Convention is to
afford Contracting States an opportunity to put matters right through
their own legal system before having to answer for their acts before
an international body. However, although Article 35 § 1 requires
that the complaints intended to be brought subsequently before the
Court should have been made to the appropriate domestic body, it does
not require that recourse should be had to remedies that are
inadequate or ineffective (see Egmez v. Turkey,
no 30873/96, ECHR 2000-XII, §§ 65 et seq.).
- The
Court reiterates that, in the context of Article 13 and remedies for
excessive length of proceedings, it has already held that such a
remedy, or the aggregate of remedies, in order to be “effective”
must be capable either of preventing the alleged violation of the
right to a “hearing within a reasonable time” or its
continuation, or of providing adequate redress for a violation that
had already occurred (see, mutatis mutandis, Kudła v.
Poland, [GC], no. 30210/96, § 158 et seq. ECHR
2000-X).
- Examining
the instant case in the light of these criteria, the Court notes that
the domestic courts are better placed to interpret national law;
therefore the Court sees no reason to disagree with the Kraków
Regional Administrative Court's ruling of 2 June 2004 that the
applicant should have lodged a complaint with a competent minister.
However, the Court further notes that it took the domestic courts
over two years (from 4 October 2002 to 19 May 2005) to examine the
applicant's complaint about the inactivity of the administrative
organs. Consequently, the said complaint could not have prevented, in
the Court's opinion, the alleged violation of the right to a “hearing
within a reasonable time” and as a result was not effective in
the applicant's case.
- It
follows that the Government's plea of inadmissibility on the ground
of non-exhaustion of domestic remedies must be dismissed.
- The
Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
3. Merits
(a) The submissions before the Court
- The
Government submitted that the applicant had significantly contributed
to the length of the proceedings, in particular, by failing to bring
a civil action for demarcation of land.
- As
regards the conduct of the domestic authorities, the Government
maintained that they had acted with due diligence and that the
District Court had “made efforts to ensure that the process of
obtaining evidence followed its proper course”.
- The
applicant submitted that the case was a simple
one. She argued that the domestic courts were solely to blame for the
delay. She submitted that she had been under no obligation to bring a
civil action for demarcation of land and that, in fact, Polish law
did not allow such actions unless the remedies available under
administrative law had been exhausted.
(b) The Court's assessment
- 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 criteria established by its case-law,
particularly the complexity of the case, the conduct of the applicant
and of 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, and
Humen v. Poland
[GC], no
26614/95, § 60, 15 October 1999).
- The
Court considers that the case involved a certain degree of
complexity. However, the overall length of the proceedings cannot be
explained by their complexity.
- As
regards the conduct of the applicant, the Court finds that the
applicant did not remain passive as she had requested demarcation of
the land in administrative proceedings, which, however, did not
result in any decision.
- The
applicant challenged the building permit granted to her neighbour
and, as a result, the decision granting this permit was quashed by
the Supreme Administrative Court judgment of 28 April 1998. In the
reasoned grounds for this judgment the court found that the building
permit had been issued contrary to the law. Having regard to the
information given to her on 30 July 1998, she could have reasonably
expected that proper measures would be taken by the authorities to
secure her legitimate interests by suspending the work being carried
out on the strength of the unlawful building permit.
- The
applicant attempted to expedite the proceedings in many ways: on 5
March 1998 she complained to the Kraków Regional Office; on
28 May 1998 she lodged a formal complaint with the Kraków
Regional Office; on 4 October 2002 she lodged a complaint about
inactivity with the Supreme Administrative Court; on 14 September
2004 she lodged a cassation appeal against the Kraków Regional
Court's decision rejecting her complaint about inactivity; and,
finally, on 23 March 2005 she lodged a complaint under the 2004 Act.
- In
view of the above, the Court finds that the applicant did not
contribute to the length of the proceedings.
- With
regard to the conduct of the domestic authorities, the Court notes
that the applicant's complaint about inactivity on the part of the
administrative authorities was examined by the domestic court for
over two years. Moreover, the applicant's complaint under the 2004
Act was not successful in expediting the proceedings. Notwithstanding
all the steps taken by the applicant, the suspension of the
construction work has not yet been ordered. The
Court notes that the Government did not provide any explanation for
this delay.
- Consequently,
the Court considers that, in the particular circumstances of the
instant case, a period of ten years and three months cannot be
regarded as a reasonable time.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
B. The proceedings before the Kraków Regional
Administrative Court concerning the inactivity of an administrative
organ
1. Period to be taken into consideration
- The
proceedings began on 4 October 2002 and ended on 19 May 2005. They
thus lasted two years and seven months, of which one year and eight
months before the Kraków Regional Administrative Court.
2. Admissibility
- The
Court reiterates that according to its case-law, Article 6 of the
Convention is applicable to the present case (see Pelli v. Italy
(dec.), no 19537/02, 13 November 2003).
- The
Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
3. Merits
(a) The submissions before the Court
- As
to the criterion of “what is at stake for the applicant”
the Government indicated that the applicant's dispute was of a purely
pecuniary nature and as such could not be regarded as exceptionally
important for her material status.
- The
Government further submitted that the applicant had failed to claim
before the Kraków Regional Administrative Court that there had
been reasons to justify a priority examination of her case.
- As
regards the conduct of the domestic authorities, the Government
maintained that they had acted with due diligence. The Government
also pointed out that, precisely during the examination of the
applicant's case, a reform of the administrative judiciary was taking
place which could have slightly contributed to the overall length of
the proceedings before the Kraków Regional Administrative
Court.
(b) The Court's assessment
- 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 criteria established by its case-law,
particularly the complexity of the case, the conduct of the applicant
and of 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, and
Humen v. Poland
[GC], no
26614/95, § 60, 15 October 1999).
-
The Court finds that the case was not complex.
-
Concerning the applicant's conduct, the Court finds that no periods
of delay are imputable to her.
60. On the other hand, the Court notes that there are
substantial delays attributable to the authorities. It observes, in
particular, that there was a 20 month period of inactivity in
the proceedings before the Regional Administrative Court between the
date the applicant lodged her complaint about inactivity on the part
of administrative organs and the date of adoption of the decision.
The Court can accept that some delays in the procedure before the
Regional Administrative Court could be explained by the fact that at
the material time a reform of the administrative judiciary was taking
place and the Regional Administrative Court had to deal with an
increased workload (see, Kępa v. Poland
(dec.), no 43978/98, 30 September 2003).
Nevertheless, in the present case the applicant's cassation appeal
lay dormant in the Regional Administrative Court for 20 months,
which constitutes an unreasonable delay (see Domańska
v. Poland, no 74073/01, § 32, 25 May
2004; a contrario Kepa v. Poland (dec.), no
49978/98, ECHR 30 September 2003).
- Having
regard to the circumstances of the instant case and to what was at
stake for the applicant, the Court considers that the length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement.
-
There has accordingly been a violation of Article 6 § 1 in
respect of these proceedings.
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
applicant claimed 15,000 euros (EUR) in respect of non pecuniary
damage.
- The Government did not comment.
- The
Court awards the applicant EUR 3,600 in respect of non pecuniary
damage.
B. Costs and expenses
- The
applicant claimed EUR 1,000 for lawyer's fees in respect of the
domestic proceedings and EUR 2,000 for lawyer's fees in respect of
the proceedings before the Court.
- The
Government did not comment.
- 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 in
respect of the domestic proceedings and considers it reasonable to
award the sum of EUR 2,000 on account of the lawyer's fees in respect
of 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 remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of both sets of proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,600
(three thousand six hundred euros) in respect of non-pecuniary damage
and EUR 2,000 (two thousand euros) in respect of 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas
Bratza
Registrar President
