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FOURTH
SECTION
CASE OF GRACZYK v. POLAND
(Application
no. 21246/05)
JUDGMENT
STRASBOURG
4 November
2008
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 Graczyk 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,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 7 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21246/05) 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 Joanna Graczyk (“the
applicant”), on 12 May 2005.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołasiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, that the length of the
administrative proceedings had exceeded a reasonable time.
- On
10 January 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1927 and lives in Poznań.
- The
applicant owns a house. In 1980 her neighbours constructed their
house as the other part of the semi-detached house. It appears that
their plumbing system was placed in a wall separating the two houses
without necessary acoustic insulation. The applicant repeatedly
complained about the noise caused by the neighbours' plumbing system.
- On
6 May 1993 the applicant lodged a complaint with the Poznań
Regional Prosecutor, alleging inactivity on the part of the
administrative authorities in dealing with her grievances. On 9 July
1993 the Regional Prosecutor applied to the Poznań District
Office to institute proceedings with a view to determining whether
the plumbing system complied with the applicable legal regulations.
- On
31 January 1994 the Mayor of Poznań, who had assumed the
competences of the District Office, refused to institute proceedings.
On 29 March 1994 the Poznań Governor quashed that decision.
Subsequently, on 18 April 1994 the Mayor of Poznań instituted
proceedings. On 15 July 1994 the Mayor of Poznań
discontinued the proceedings. It found that the applicant's
neighbours' house had been constructed in accordance with the
construction permit and that there had been no need to conduct any
further proceedings. The applicant lodged an appeal against that
decision.
- On
29 September 1994 the Poznań Governor quashed the Mayor's
decision. It held that it was not necessary to determine whether the
plumbing system had been built in accordance with applicable
regulations. The applicant appealed against that decision to the
administrative court.
- On
23 May 1995 the Supreme Administrative Court quashed the Governor's
decision and the preceding decision of the Mayor of Poznań. It
held that the Mayor of Poznań had been obliged to determine by
means of a decision whether the plumbing system in the neighbours'
house complied with the Construction Act and other applicable laws.
- On
1 June 2000 the applicant lodged with the administrative court a
complaint about the inactivity of the Poznań District Inspector
of Construction Supervision. This authority in the meantime had
become competent to issue a decision in the case. The applicant
alleged that the District Inspector had failed to issue a decision as
required by the judgment of 23 May 1995.
- On
11 January 2001 the Supreme Administrative Court gave judgment in
favour of the applicant. It ordered the Poznań District
Inspector of Construction Supervision to issue a decision on the
compatibility of the plumbing system in the neighbours' house with
the applicable regulations within 30 days. It noted that despite its
ruling of 23 May 1995 and the applicant's repeated complaints
the authorities had remained inactive for nearly five years.
- On
5 April 2001 the District Inspector issued a decision. It found that
the plumbing system at issue complied with the relevant regulations.
That decision was quashed on appeal on 13 July 2001.
- On
18 April 2002 the District Inspector ordered the applicant's
neighbours to provide an expert's report on the plumbing system. On
5 November 2003 an expert delivered his opinion, which
revealed certain irregularities in the structure of the plumbing
system.
- The
District Inspector issued another decision on 28 June 2004. It
ordered the applicant's neighbours to carry out works with a view to
making their plumbing system compatible with the applicable
regulations. The applicant's neighbours appealed against that
decision.
- On
5 August 2004 the Regional Inspector of Construction
Supervision upheld the decision on appeal. The applicant's neighbours
lodged an appeal with the Regional Administrative Court.
- On
19 January 2005 the applicant asked the court to accelerate the
proceedings.
- On
6 September 2005 the neighbours complied with the District
Inspector's decision of 28 June 2004.
- The
administrative court dismissed their appeal on 4 April 2006.
- On
14 June 2007 the General Inspector of Construction Supervision
conducted an inspection of the building which did not reveal any
noise caused by the neighbour's plumbing system.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The relevant domestic law concerning inactivity on the
part of administrative authorities is stated in the Court's judgments
in cases Kaniewski v. Poland, no. 38049/02, 8 February
2006, and Koss v. Poland, no. 52495/99, 28 March 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 stated in the Court's
decisions in 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 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
- 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.
- The
period to be taken into consideration began on 18 April 1994 at
the latest and ended on 6 September 2005. It thus lasted nearly
eleven years and five months.
A. Admissibility
- The
Government submitted that the applicant had not exhausted the
remedies available under Polish law. Firstly, they stressed that in
respect of the proceedings pending before the Poznan Regional Court
following the neighbours' appeal of 2 September 2004, the applicant
could have made use of the remedies available under the 2004 Act. In
particular she could have lodged a complaint about inactivity or
after the termination of the proceedings, an action for damages
resulting from the length of the proceedings.
- Secondly,
the Government argued that the applicant 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 and the Poznan Regional Administrative
Court. They relied on Article 417¹ § 3 of the Civil Code.
- The
applicant contested the Government's submissions.
- However,
the Court notes that on 1 September 2004 the proceedings in the
applicant's case had already been pending for ten years. It also
observes that prior to that date the applicant resorted to remedies
designed to accelerate the process of obtaining an administrative
decision, such as an appeal under Article 37 of the Code of
Administrative Procedure and a complaint lodged with the Supreme
Administrative Court about the inactivity of the administrative
authorities (see paragraphs 11 and 12 above).
- 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
was formally determined that there had been an unlawful failure to
issue an administrative decision within the relevant time-limits. The
Court also notes that the Government provided no evidence of
established judicial practice to show that a claim for compensation
based on Article 417¹ § 3 of the Civil Code was an
effective remedy and have thus failed to substantiate their
contention (see Grabiński v. Poland, no. 43702/02,
§ 74, 17 October 2006). For these reasons, the Government's
plea of inadmissibility on the ground of non-exhaustion of domestic
remedies must be dismissed.
- The
Court notes that 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.
B. Merits
- The
applicant maintained that the overall length of the proceedings and,
in particular, the almost five-year-long period of inactivity on the
part of the authorities could not be considered a “reasonable
time” within the meaning of Article 6 of the Convention. She
further submitted that there had been a violation of Article 6 §
1 of the Convention.
- The
Government submitted that the case had been very complex as it
involved complicated legal and factual issues. They further agreed
that the applicant had not significantly contributed to the length of
the proceedings. Lastly, in view of the very complicated nature of
the case the authorities had shown due diligence in the proceedings.
- 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, and Beller v. Poland, no. 51837/99, §§
68-70, 1 February 2005).
- The
Court observes that the case involved a certain degree of complexity
on account of the need to establish legal and factual issues dating
back to 1970 when the applicant's neighbours received their
construction permit. However, it considers that this in itself cannot
justify the overall length of the proceedings.
- As
regards the conduct of the applicant, the Court, having regard to the
available evidence, does not find it established that the applicant
contributed to the delays in the proceedings.
- As
regards the conduct of the relevant authorities, the Court notes that
there was a significant period of inactivity between May 1995 and
June 2000 (see paragraphs 10, 11 above).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant's case was not heard within a reasonable
time. 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
applicant did not claim any particular sum in respect of pecuniary
and non-pecuniary damage. However, she requested the Court to grant
her just satisfaction in an amount it considered equitable, given the
detriment suffered by her on account of the length of the proceedings
in her case.
- The
Government objected, submitting that the applicant should have
specified the amount claimed.
- The
Court considers that the applicant has certainly suffered
non pecuniary damage, such as distress and frustration resulting
from the protracted length of the proceedings, which cannot
sufficiently be compensated by the finding of a violation. Taking
into account the circumstances of the case and making its assessment
on an equitable basis, the Court awards the applicant 6,000 euros
(EUR) under that head.
B. Costs and expenses
- The applicant did not claim any amount for the costs
and expenses incurred before the domestic courts and 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 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 applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,000 (six
thousand euros), plus any tax that may be chargeable, 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.
Done in English, and notified in writing on 4 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
