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FOURTH
SECTION
CASE OF MAZUREK v. POLAND
(Application
no. 41265/05)
JUDGMENT
STRASBOURG
11
January 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Mazurek v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Ján Šikuta,
President,
Lech Garlicki,
Vincent A. de Gaetano,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 6 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 41265/05) 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 Jadwiga Mazurek (“the applicant”),
on 20 October 2005.
- The
applicant was represented by Mr T. Rutowski, a lawyer practising in
Poznań. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- On
14 September 2009 the
President of the Fourth Section decided to communicate the complaint
concerning the length of the proceedings.
- In
accordance with Protocol No. 14, the application was allocated to a
Committee of three Judges. The Government objected to the examination
of the application by a Committee. After having considered the
Government's objection, the Court rejects it.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Warszawa.
1.
Administrative proceedings concerning a building permit
- The
applicant is a co-owner of a plot of land in Poznań and a
building situated on that plot. On 4 February 2000 the Poznań
Mayor issued a building permit for spouses P., her neighbours and
co-owners of that building, concerning an extension to it.
- On
12 June 2000, shortly after the construction works had started, the
applicant requested the Mayor to have the works stopped, submitting
that spouses P. had made changes to the original construction plans
which had served as a basis of the building permit and of her
agreement which had been a necessary condition for having the permit
granted. The Mayor regarded her application as a request for the
re-opening of the proceedings and refused it. The applicant appealed,
submitting that the building permit had not been served on her
properly and that, as a result, she had not been properly informed
about the manner in which the future construction would affect the
use of her property.
- On
29 August 2000 the Wielkopolski Governor quashed the Mayor's refusal
and remitted the case, noting that the applicant had not been
properly informed about the conditions of the permit which affected
her situation. Spouses P. complained about this decision to the
Poznań Administrative Court which dismissed their appeal by a
judgment of 10 October 2001. The court noted that the applicant and
spouses P. were co-owners of the building concerned. Therefore the
fact that the applicant had not been properly informed about details
of the building project had to be taken into account by the
second-instance authority when deciding on her request to have the
proceedings re-opened.
- Subsequently,
by a decision of 5 June 2002 the Mayor refused to reopen the
proceedings in which spouses P. had been granted the building permit,
because the construction works had already been finished. The
applicant appealed.
- On
26 July 2002 the Wielkopolski Governor quashed the Mayor's refusal
and remitted the case, finding that the extension erected by spouses
P. should have complied with an agreement which the applicant had
concluded with them before they had applied for the permit.
- On
22 January 2003 the applicant lodged a complaint about inactivity on
the part of the Mayor. On 5 February 2003 the Wielkopolski Governor
found that the complaint about the inactivity was well-founded and
ordered the Mayor to issue a decision on the merits of the case
within one month.
- In
the meantime, on 28 January 2003 the Mayor refused to set aside the
building permit. The applicant appealed. On 27 March 2003 the
Wielkopolski Governor allowed the appeal. He noted that it had not
been properly established in the proceedings whether spouses P. had
informed the applicant about the technical conditions of the building
project and whether the alterations made in the building on the basis
of that project did not excessively affect the applicant's unhindered
use of the property.
- On
28 April 2003 spouses P. appealed to the Poznań Regional
Administrative Court.
- On
13 April 2005 the Poznań Regional Administrative Court dismissed
their appeal. It observed that throughout the proceedings the
applicant had been submitting that she had accepted the project on
the basis of information provided by spouses P. that the roof of the
planned extension of the building would be flat, while ultimately
they had a sloping roof built. The applicant had reiterated that this
had made impossible for her to proceed with her own extension plans.
The court held that it had not been shown whether during the original
proceedings which had led to the issuance of the building permit the
applicant had indeed been properly informed about the technical
details of the project.
- In the meantime, on 7 April 2005 the applicant lodged
a complaint with the Supreme Administrative Court under section 5 of
the Act of 17 June 2004 on complaints about a breach of the
right to a trial within a reasonable time (“the 2004 Act”).
- On
3 June 2005 the Supreme Administrative Court dismissed her complaint
on the ground that there had been no undue delays in the judicial
proceedings.
- On
31 January 2006 the Poznań Mayor refused to quash the building
permit of 4 February 2000. The applicant appealed. By a decision of
8 March 2006 the Wielkopolski Governor set aside the decision of
the Poznań Mayor, but refused to quash the permit, having
observed that more than five years had elapsed since it had been
issued. Hence, under the applicable laws it was impossible to set it
aside.
2.
The second set of administrative proceedings
- On
13 October 1999 the applicant requested the Poznań Mayor to
issue a decision allowing for an extension of her house to be built.
On 29 April 2003 the Poznań Local Government Board of
Appeal upheld the Poznań Mayor's decision of 31 December 1999
given at the applicant's request.
- On
6 June 2003 the applicant appealed to the Poznań Regional
Administrative Court. On 13 April 2005 the Poznań Regional
Administrative Court dismissed her appeal.
- On
10 May 2005 the applicant lodged with the Supreme Administrative
Court a complaint under the 2004 Act about the excessive length of
judicial proceedings.
- On
24 June 2005 the Supreme Administrative Court allowed her complaint
finding that delays in the proceedings had been attributable to the
Poznań Regional Administrative Court. The court underlined that
the lower court had not scheduled any hearings for over 12 months and
pointed to the fact that the case had not been very complex. The
court awarded her PLN 1,000 as just satisfaction.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the first set of 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...”
A. Applicability of Article 6 § 1 to the
proceedings
- The
Court must first determine whether Article 6 § 1 of
the Convention is applicable to the proceedings concerned.
- The
Government submitted that Article 6 § 1 of the Convention did
not apply to the proceedings in their entirety. According to the
Convention organs' case-law, this provision did not apply to
proceedings in which re-opening of a case terminated by a final
decision was sought (see, e.g., Maksym v. Poland,
no. 14450/02, § 35, 19 December 2006). In the present
case the final decision granting the building permission to the
co-owners of the building had been issued on 4 February 2000. On 12
June 2000 the applicant requested the Poznań Mayor to re-open
the proceedings. However, it had been only on 4 March 2002 that
ultimately the Mayor allowed her request for the proceedings
concerning the building permit to be re opened. Hence, Article 6
had become applicable to the proceedings only on that date.
- The
Court reiterates that Article 6 applies under its “civil head”
if there was a “dispute” (“contestation”)
over a “right” which can be said, at least on arguable
grounds, to be recognised under domestic law. That dispute must be
genuine and serious; it may relate not only to the existence of a
right but also to its scope and the manner of its exercise. The Court
must also be satisfied that the result of the proceedings at issue
was directly decisive for the right asserted (see, among many other
authorities, Rolf Gustafson v. Sweden, judgment of 1 July
1997, Reports of Judgments and Decisions 1997 IV,
p. 1160, § 38).
- The
Court is well aware that guarantees of Article 6 of the
Convention do not apply to proceedings in which the re-opening of
proceedings terminated by a final judicial decision is sought (see,
among many other authorities, Wierciszewska v. Poland,
no. 41431/98, § 35, 25 November 2003).
However, the Court observes that the circumstances of the present
case differ markedly from ordinary civil or criminal proceedings.
Firstly, the non applicability of the procedural guarantees of
Article 6 of the Convention to proceedings in which re-opening of
civil or criminal proceedings terminated by a final judicial decision
is sought, finds its justification in, inter alia, the
essential principle of legal certainty. However, that principle
cannot be said to be applicable with the same force in the context of
administrative proceedings. Indeed, it is their normal feature that
they may be re-opened and conducted again if it becomes necessary in
the light of evolution of circumstances which had led to the original
decision (see, mutatis mutandis, J.S. and A.S. v. Poland,
no. 40732/98, § 52, 24 May 2005).
- In
this connection, the Court notes that on 4 February 2000 the
applicant's neighbours obtained a building permit and subsequently
started the construction works. Shortly after the works had started,
on 12 June 2000, the applicant requested the Mayor to have the
construction works stopped and the proceedings leading to the grant
of the building permit re-opened because, as she alleged, the
co-owners of the adjacent plot had made changes to the original
construction plans on the basis of which the permit had been granted.
In subsequent proceedings the administrative court, in its judgment
of 10 October 2001, noted that the fact that the applicant had not
been properly informed about the details of the building project had
to be taken into account by the second-instance authority when
deciding on her request to have the proceedings re-opened.
Furthermore, in its judgment of 13 April 2005 the same court observed
that throughout the proceedings the applicant had sought the
re-opening of the original proceedings, submitting that the building
as actually constructed had made it impossible for her to proceed
with her own extension plans.
In
these circumstances, it would be difficult to deny that the
proceedings by which the applicant sought to have the proceedings
concerning the building permit of neighbours re-opened had
indisputable impact on the way in which she could exercise her
ownership rights in respect of the building concerned. That dispute
was therefore genuine and serious enough to bring the proceedings
concerned within the ambit of Article 6 § 1 of the
Convention.
- In
the light of the above, the Court concludes that Article 6 of the
Convention is applicable to the proceedings concerned in the present
case in their entirety.
B. Exhaustion of domestic remedies
- The Government submitted that the applicant had not
attempted to pursue all effective domestic remedies with respect to
her complaint about the length of the proceedings. She had the
following remedies at her disposal: a complaint to the higher
authority under Article 37 § 1 of the Code of
Administrative Procedure; a complaint to the Supreme Administrative
Court under Article 17 of the Law of 11 May 1995 on the Supreme
Administrative Court (“the 1995 Act”) and a complaint
provided for by Article 3 of the 2002 Act on the Proceedings
before Administrative Courts.
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. They relied on Article 417 and, in
respect of the period after 1 September 2004, Article 417¹
§ 3 of the Civil Code as amended by the Law of 17 June 2004 on
Amendments to the Civil Code and Some Other Laws.
- The
applicant submitted that she had lodged a complaint about the
administrative's authority failure to deal with her case within a
reasonable time (see paragraph 11 above) and was successful in that
the governor acknowledged that the proceedings had been protracted
and ordered the Mayor to give a decision on the merits of the case
within one month. Hence, she had recourse to the relevant remedy. As
to the compensatory remedy relied on by the applicant, she submitted
that this was not a remedy necessary for the purposes of exhaustion
of domestic remedies within the meaning of Article 35 of the
Convention. She relied on the Court's judgments in cases of Cichla
v. Poland, no. 18036/03, 10 October 2006 and
Jagiełło v. Poland, no. 59738/00,
23 January 2007)
- The Court reiterates that the obligation to exhaust
domestic remedies requires only that an applicant make normal use of
effective and sufficient remedies that are capable of remedying the
situation at issue and affording redress for the breaches alleged
(see, among other authorities, Selmouni v. France
[GC], §§ 74-76, ECHR 1999-VII).
- The
Court has held in a number of cases against Poland that in order to
comply with the requirement of exhaustion of domestic remedies in the
context of lengthy administrative proceedings it was necessary to
have recourse first to a hierarchical complaint about inactivity of
an administrative authority and if this proved unsuccessful, to a
subsequent complaint to the Supreme Administrative Court (see, e.g.,
Zynger (dec.), no. 66096/01, 7 May
2002; Futro v. Poland (dec.), no. 51832/99,
3 June 2003; Koss v. Poland, no. 52495/99,
28 March 2006; Beller v. Poland, no. 51837/99,
1 February 2005; Karasińska v. Poland,
no. 13771/02, 6 October 2009;
Puchalska v. Poland,
no. 10392/04, 6 October 2009).
- Examining
the instant case, the Court first observes that the applicant lodged
a hierarchical complaint alleging inactivity on the part of the
administrative authorities with the respective higher authority. Her
complaints was found to be well founded and time-limit was fixed
for dealing with the case (see paragraph 11 above). The
applicant also filed a complaint with the administrative court about
the excessive length of the judicial stage of the proceedings (see
paragraph 15 above). The remedies which the applicant used were
therefore adequate and sufficient to afford her redress in respect of
the alleged breach (see, e.g., Rygalski v. Poland,
no. 11101/04, 22 January 2008; Lorenc v. Poland,
no. 28604/03, 15 September 2009).
- The Court further observes that according to Article
417 of the Civil Code and subsequently according to Article 417¹
§ 3 of that Code no claim for damages resulting from the
unreasonable length of administrative proceedings could arise unless
it was been formally determined that there was an unlawful failure to
issue an administrative decision within the relevant time-limits. The
Court also notes that the domestic case law relied on by the
Government does not constitute evidence of a sufficiently established
judicial practice to show that a claim for compensation based on
Article 417¹ § 3 of the Civil Code was an effective
remedy, and they have thus failed to substantiate their contention
(see,e.g., Boszko v. Poland, no. 4054/03,
§ 35, 5 December 2006; Puczyński
v. Poland, no. 32622/03,
§ 40, 8 December 2009).
- Accordingly, the Court concludes that, for the
purposes of Article 35 § 1 of the Convention, the
applicant has exhausted domestic remedies in respect of the
administrative proceedings. 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 complaint 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.
C. Merits
- The
Court finds, having regard to its finding as to the applicability of
Article 6 of the Convention (see paragraph 29 above), that the period
to be taken into consideration began on 12 June 2000 when the
applicant requested that the proceedings leading to the issuance of
the original building permit granted to spouses P. be re-opened and
ended on 8 March 2006. It thus lasted five years and nine months.
- 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).
- 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).
- The
Court further notes that it is relevant for its finding of a
violation that it was solely the lapse of time between the
applicant's request of 12 June 2000 and 8 March 2006 which
made her request unsuccessful as ultimately the authorities were
prevented by law from re-examining the merits of an administrative
decision given more than five years before. Had the proceedings been
conducted speedily, the substance of her request could have been
examined.
- 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.
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.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained that she had no effective remedy to
complain about the length of administrative proceedings. The Supreme
Administrative Court dismissed her length complaint in the first set
of the administrative proceedings, but it found the second set of
judicial proceedings too long, despite the fact that the
circumstances and the time-frame in both cases were almost identical.
She relied on Article 13 of the Convention. The
Government contested that argument.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The Court reiterates that Article 13 guarantees an
effective remedy before a national authority for an alleged breach of
the requirement under Article 6 § 1 to hear a case
within a reasonable time (see Kudła v. Poland [GC],
no. 30210/96, § 156, ECHR 2000-XI). It has already repeatedly
found that the administrative law remedies available under Polish law
were effective in cases in which an applicant complains of excessive
length of administrative proceedings (see, Zynger v. Poland
(dec.), no. 66096/01, 7 May 2002, and Bukowski v. Poland
(dec.), no. 38665/97, 11 June 2002). It further reiterates
that the word “remedy” within the meaning of Article 13
does not mean a remedy which is bound to succeed, but simply an
accessible remedy before an authority competent to examine the merits
of a complaint (see, e.g., Šidlová v. Slovakia,
no. 50224/99, § 77, 26 September 2006). The Court
further reiterates that divergences in case-law are an inherent
consequence of any judicial system which is based on a network of
first- and second-instance courts with authority over the area of
their territorial jurisdiction (see Zielinski and Pradal and
Gonzalez and Others v. France [GC], nos. 24846/94 and
34165/96 to 34173/96, § 59, ECHR 1999-VII).
- 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.
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. Damages
- The
applicant claimed 25,000 euros (EUR) 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 her EUR 1,500 under that head.
B. 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 applicant, within three months EUR
1,500 (one thousand five 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 11 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ján Šikuta Deputy
Registrar President
