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FOURTH
SECTION
CASE OF GIZA v. POLAND
(Application
no. 48242/06)
JUDGMENT
STRASBOURG
13 July
2010
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 Giza 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 22 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 48242/06) 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, Mr Józef
Giza (“the applicant”), on 22 November 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- On
17 November 2008 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Bystra Podhalańska.
- In
1995 the applicant's neighbours, K.G. and J.G., constructed a sawmill
on a plot of land adjacent to his property without the required
building permit. The applicant informed the authorities about the
illegal construction.
- On
22 November 1995, the Nowy Targ District Office ordered the
applicant's neighbours to demolish part of the building by 30 April
1996.
- On
a motion lodged by the applicant, on 29 September 1997 the Director
of the Nowy Targ District Office ordered K.G. and J.G. to demolish
the building by 30 January 1998 as it had been built without the
appropriate permit. That decision was upheld on appeal by the Nowy
Sącz Regional Office on 4 December 1997.
- On
24 June 1998 the District Office fined K.G. and J.G. for failure to
comply with the decision of 4 December 1997. Upon a further appeal,
on 25 August 2000 the Supreme Administrative Court declared part
of the decision of 4 December 1997 null and void in so far as it
related to the time limit for carrying out the demolition.
- On
20 November 2002 part of the sawmill burned down. It appears that,
subsequently, the applicant's neighbours reconstructed the destroyed
part of the building without the required building permit.
- On
an unknown date in 2004 the applicant complained to the Małopolski
Regional Inspector of Construction Supervision, alleging that the
length of the enforcement proceedings had been excessive.
- In
its decision of 12 October 2004 the Regional Inspector considered
that the applicant's complaint was well-founded and ordered the Nowy
Targ District Office to take the necessary measures in order to
enforce the decision of 29 September 1997 within one month. The
Regional Inspector's decision was subsequently upheld on 4 December
1997.
- On
27 January 2005 the applicant filed a complaint with the Supreme
Administrative Court, alleging that the length of the enforcement
proceedings had been excessive. He further stressed that the illegal
construction and the operation of the sawmill constituted a
significant nuisance. The complaint was referred to the Cracow
Regional Administrative Court.
- On
25 May 2006, in response, the Cracow Regional Administrative Court
delivered a judgment. It ordered the Sucha Beskidzka District
Inspector of Construction Supervision to take all the necessary
measures with a view to enforcing the decision of 29 September 1997,
as upheld by the decision of 4 December 1997, within one month of the
date on which it received the case file.
- On
7 June 2006 the Sucha Beskidzka District Prosecutor instituted an
investigation into the non-enforcement of the decision of
29 September 1997.
- On
4 October 2006 the Małopolski Regional Inspector of
Environmental Protection informed the Mayor of Such Beskidzka that
the sawmill operated by the applicant's neighbours created excessive
noise during the daytime.
- On
18 December 2006 the Mayor of Sucha Beskidzka gave a decision
and established that the maximum noise level caused by the sawmill
should not exceed 55dB during daytime and 45dB at night. It further
held that that decision was without prejudice to the legality of the
construction of the building located on the plot in question.
- On
28 April 2008 the Sucha Beskidzka District Prosecutor filed an act of
indictment against the Sucha Beskidzka District Inspector of
Construction accusing him of breach of duty concerning the
non enforcement of the administrative decision of 29 September
1997. The proceedings are pending.
- It
appears that the decision of 29 September 1997 has not been enforced
yet.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The relevant domestic law concerning inactivity on the
part of administrative authorities is set out in the Court's
judgments in the cases of Kaniewski v. Poland,
no. 38049/02, §§ 22-28, 8 February 2006;
Koss v. Poland, no. 52495/99, §§ 21-25,
28 March 2006; and Grabiński v. Poland,
no. 43702/02, §§ 60-65, 17 October 2006.
THE LAW
I. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION
UNDER ARTICLE 37 OF THE CONVENTION
- On
25 May 2009 the Government submitted a unilateral declaration similar
to that in the case of Tahsin Acar v. Turkey ((preliminary
objection) [GC], no. 26307/95, ECHR 2003-VI) and informed
the Court that they were ready to accept that there had been a
violation of the applicant's rights under Article 6 § 1 of the
Convention as a result of the unreasonable length of the
administrative enforcement proceedings in which the applicant had
been involved. In respect of non-pecuniary damage, the Government
proposed to award the applicant 15,000 Polish zlotys (PLN) (the
equivalent of approximately 3,750 euros (EUR)). The Government
invited the Court to strike out the application in accordance with
Article 37 of the Convention.
- The
applicant in principle agreed with the Government's proposal but
maintained that the Government should also undertake to enforce the
administrative decision in question and set a time-limit within which
the impugned building would be demolished.
- The
Court observes that, as it has already held on many occasions, it may
be appropriate under certain circumstances to strike out an
application under Article 37 § 1 (c) of the Convention on the
basis of a unilateral declaration by the respondent Government even
if the applicant wishes the examination of the case to be continued.
It will depend on the particular circumstances whether the unilateral
declaration offers a sufficient basis for finding that respect for
human rights as defined in the Convention and its Protocols does not
require the Court to continue its examination of the case (see
Tahsin Acar, cited above, § 75; and Melnic v.
Moldova, no. 6923/03, § 22, 14 November
2006).
- According to the Court's case-law, the amount
proposed in a unilateral declaration may be considered a
sufficient basis for striking out an application or part thereof. The
Court will have regard in this connection to the compatibility of the
amount with its own awards in similar length of proceedings cases,
bearing in mind the principles which it has developed for determining
victim status and for assessing the amount of non-pecuniary
compensation to be awarded where it has found a breach of the
reasonable time requirement (see Cocchiarella v. Italy
[GC], no. 64886/01, §§ 85 107, ECHR
2006 ...; Scordino v. Italy (no.1) [GC],
no. 36813/97, §§ 193-215, ECHR-2006-...; and
Dubjakova v. Slovakia (dec.), no. 67299/01, 10 October
2004).
- On the facts and for the reasons set out above, in
particular the amount of compensation proposed and the applicant's
insistence on the enforcement of the final decision of 4 December
1997, the Court finds that the Government have failed to provide a
sufficient basis for concluding that respect for human rights as
defined in the Convention and its Protocols does not require it to
continue its examination of the case (see, conversely, Spółka
z o.o. WAZA v. Poland (striking out), no. 11602/02, 26 June
2007).
- This
being so, the Court rejects the Government's request to strike the
application out of its list of cases under Article 37 of the
Convention and will accordingly pursue its examination of the
admissibility and merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained of a breach of Article 8 of the Convention on
account of the failure to enforce a final judgment and the length of
the administrative proceedings. The Court considers that these
complaints fall to be examined under Article 6 § 1, which, in so
far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal ...”
A. The Government's preliminary objections
- The
Government submitted 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 courts. They cited Article 417 of
the Civil Code. In addition, the Government argued that from 1
January 2004, the date of entry into force of the Law of 30 August
2002 on procedure before the Administrative Courts, the applicant
could have sought compensation for damage resulting from the
administrative authority's failure to act in compliance with the
judgment of an administrative court.
- The
applicant objected to the Government's submissions in general terms.
- The Court firstly 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 also notes that the
examples of domestic case-law furnished by the Government do not
constitute evidence of a judicial practice which was sufficiently
established to make a claim for compensation based on Article 417¹
§ 3 of the Civil Code an effective remedy and that the
Government have thus failed to substantiate their contention (see
Grabiński v. Poland, no. 43702/02,
§ 74, 17 October 2006). It follows that this part of the
Government's objection must be rejected.
- The
Court further notes that the applicant lodged numerous complaints
alleging inactivity on the part of the administrative authorities. He
further filed complaints about the District Inspector's failure to
enforce the decision in question (see paragraphs 10 and 12). However,
these complaints were to no avail.
- 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 himself of some of the possibilities available to him within
the administrative procedure system, the applicant was not required
to embark on another attempt to obtain redress by bringing civil
proceedings or another form of administrative action for
compensation.
- For
these reasons, the Government's plea of inadmissibility on the ground
of non-exhaustion of domestic remedies must be dismissed. The Court
further notes that this part of the application 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
1. The alleged failure to enforce a final decision
- The
Government did not submit observations on the merits of the
application.
- The
Court reiterates that a delay in the execution of a judgment or
a final decision may be justified in certain circumstances, but
the delay may not be such as to impair the essence of the right
protected under Article 6 § 1 (see Burdov
v. Russia, no. 59498/00, § 35, ECHR 2002-III).
- The
Court observes that the decision of the Nowy Sacz Regional
Construction office of 4 December 1997 ordered K.G and J.G –
the applicant's neighbours – to demolish the illegally
constructed sawmill (see paragraph 7). On 25 May 2006
the Cracow Regional Administrative Court imposed on the District
Inspector of Construction Supervision the duty to undertake all
necessary measures with a view to enforcing its decision of 1997.
- The
Court further observes that the decision of 4 December 1997 has still
not been enforced, more than twelve years after its delivery.
- Having
regard to the above, the Court considers that the facts of the case
do not demonstrate any justification for the failure to enforce the
decision of 4 December 1997.
- There
has therefore been a violation of Article 6 § 1 of the
Convention in that respect.
2. The length of the proceedings
- Having
regard to its reasoning and conclusion on the earlier complaint, the
Court does not find it necessary to rule separately on the length of
proceedings complaint.
II. ALLEGED VIOLATION OF
ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant further complained that the length of the proceedings
complained of had infringed his right to the peaceful enjoyment of
his possessions, as guaranteed by Article 1 of Protocol No. 1.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to its finding under Article 6 § 1
(see paragraph 38 above), the Court considers that it
is not necessary to examine whether, in this case, there has been a
violation of Article 1 of Protocol No. 1 (see Zanghì v.
Italy, judgment of 19 February 1991, Series A no. 194-C, p. 47,
§ 23).
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
applicant claimed 30,000 Polish Zlotys in respect of non pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards award him the full
sum claimed EUR 7,200 (seven thousand two hundred euros) under that
head.
B. Costs and expenses
- The
applicant did not make any claims for 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
- Rejects the Government's request to strike the
application out of its list;
2. Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the non-enforcement of the
final decision in the applicant's favour;
- Holds that there is no need to examine
separately the complaint under Article 6 § 1 of the Convention
(length of the administrative proceedings);
- Holds that there is no need to examine
separately the complaint under Article 1 of Protocol No. 1 to 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 7,200
(seven thousand two hundred 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 13 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
