CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 7 septembre 2004

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Pellonpää ,   Mrs   V. Strážnická ,   Mr   J. Casadevall ,   Mr   R. Maruste ,   Mr   L. Garlicki ,   Ms   L. Mijović, judges , and Mrs F . Elens-Passos , Deputy Section Registrar , Having regard to the above application lodged on 3 March 1999, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The applicants, Mrs Maria Mazurek and Mr Tadeusz Mazurek, are Polish nationals who were born in 1932 and 1927 respectively. They live in Rumia, Poland. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicants shared an apartment with a certain married couple, J.K. and U.K. On 2 November 1992 the applicants requested the Gdynia District Court ( Sad Rejonowy ) to order eviction of J.K. and U.K. (“the defendants”) from the apartment. They claimed that the defendants had no legal title to occupy the premises. On 2 February 1993 the Gdynia District Court gave judgment, in which it ordered eviction of the defendants from the applicants’ apartment. The judgment became final. On 27 April 1993 the District Court issued a writ of enforcement. The case was transferred to the Rumia Municipal Office ( Urzad Miasta Rumia ) which was charged with enforcement of the judgment by providing the defendants with an alternative dwelling ( lokal zastepczy ). On 15 January 1997 the applicants lodged with the Gdańsk Governor ( Wojewoda ) a complaint about the inactivity of the Rumia Municipal Office. The complaint was transferred to the Gdańsk Self ‑ Government Board, which ordered the Rumia Municipal Office to submit the applicants’ case ‑ file. Subsequently, the Rumia Municipal Office informed the Gdańsk Self-Government Board that no decision had yet been made in the case. Following several complaints made by the applicants to the Municipal Office, the MPs and the Ombudsman, on 19 May 1999 the Rumia Mayor informed them that it was not possible to give an exact date when the proceedings would end because the municipality did not have available a sufficient number of alternative dwellings. On 3 January 2001 the applicants turned to the Pomorskie Governor complaining about the inactivity of the administrative authorities. On 5 January 2001 the Pomorskie Governor requested the Rumia Mayor to deal with the case as soon as possible. On 20 February 2001 the Rumia Mayor provided the defendants with an alternative dwelling. B.     Relevant domestic law and practice According to the Law of 2   July   1994 on the Lease of Dwellings and Housing Allowances ( Ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych ), enforcement of a final court’s judgment concerning the provision of an alternative dwelling should be dealt by the municipalities in accordance with the provisions of the Code of Administrative Procedure. Article 35 of the Code of Administrative Procedure lays down time ‑ limits ranging from 1 month to 2 months for dealing with a case pending before an administrative authority. If those time-limits have 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. Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures be applied to prevent future such delays. Until 1 October 1995, under Article 216 of the Code of Administrative Procedure, a party to administrative proceedings could, at any time, lodge with the Supreme Administrative Court a complaint about the fact that an administrative authority had failed to issue a decision. On 1 October 1995, when a new Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) took effect, Article 216 of the Code of Administrative Procedure was repealed. Under section 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint against inactivity on the part of an authority obliged to issue an administrative decision. Section 26 of the Law provides: “When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.” Moreover, the Court notes that pursuant to section 30 of the Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question. Pursuant to section 31 of the Law, a party to the proceedings who sustains damage as a result of a failure of the administrative body to act in compliance with the judgment of the Supreme Administrative Court given under Article 17 of the Act, is entitled to claim compensation from the administrative authority concerned, according to principles of civil liability as set out in the Civil Code. Such a claim should be first lodged with that authority. A decision on the compensation claim should be taken by that administrative authority within three months. If the authority concerned fails to give a ruling in this respect within this time ‑ limit, or if the party is not satisfied with the compensation granted, a compensation claim against the administrative body can be lodged with a civil court. Section 34 of the 1995 Act sets out the requirement of the exhaustion of available remedies before lodging a complaint with the Supreme Administrative Court. Accordingly, a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level, pursuant to the above ‑ mentioned Article   37 of the Code of Administrative Procedure. COMPLAINT The applicants complained, without invoking any Article of the Convention, about the length of the proceedings. THE LAW The applicants’ complaint relates to the length of the proceedings, which began on 2 November 1992, when the applicants initiated civil proceedings, and ended on 20 February 2001 when the defendants were provided with an alternative dwelling. The proceedings therefore lasted eight years and three months, out of which a period of over seven years and nine months falls within the Court’s jurisdiction ratione temporis . The Government submitted that the applicants had failed to exhaust domestic remedies, as required under Article 35 § 1 of the Convention. This Article, in its relevant part, provides: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...” In this respect, the Government underlined that the applicants did not attempt to pursue all effective domestic remedies with respect to their complaint about the length of the proceedings. The Government acknowledged that the applicants had lodged on two occasions appeals with the higher authority under Article 37 § 1 of the Code of Administrative Procedure. However, under Article 17 of the 1995 Act they could have further lodged a complaint with the Supreme Administrative Court, since, by complaining first to the higher administrative authority, they had fulfilled a requirement under section 34 of the 1995 Act. The applicants claimed that they had made many complaints to various institutions. On 15 January 1997 they lodged a complaint with the Gdańsk Governor alleging inactivity on the part of the Rumia Municipal Office. Moreover, on 3 January 2001 they lodged another complaint with the Pomorski Governor. They submitted that the last complaint had been successful as the Rumia Mayor had subsequently provided the defendants with the alternative dwelling. The Court reiterates that the purpose of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford Contracting States an opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. In that way Article 35 § 1 obliges the applicant to try available remedies that relate to the breach alleged by him (see, among other authorities, Selmouni v.   France [GC], §§   74-76, ECHR 1999-VII; Bukowski v.   Poland (dec.), no.   38665/97, 11   June   2002). The Court recalls 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). The Court first notes that this case originated in a civil action for eviction and concerned the length of enforcement of the District Court’s judgment of 2   February 1993. The enforcement of that judgment was dependent on the relevant administrative authority providing the defendants with an alternative dwelling. Accordingly, as regards the period within the Court’s jurisdiction ratione temporis, the impugned proceedings were recognised by the domestic law as administrative and were governed by the Code of Administrative Procedure (see Relevant Domestic Law above). Examining the instant case in the light of these criteria, the Court notes that in Poland a party to administrative proceedings may lodge an appeal under Article 37 of the Code of Administrative Procedure in order to urge the relevant authority to issue a decision within the time-limits fixed in Articles   35 and 36 of that Code. In cases where an authority continuously fails to do so, a party still has an opportunity to obtain – through the expedited procedure laid down in section 26 of the 1995 Act – a ruling on his rights or obligations directly from the Supreme Administrative Court. Furthermore, if the Supreme Administrative Court’s decision ordering the authority to put an end to its inactivity is not complied with, a new legal channel opens for a party who has sustained damage as a result. The party to the proceedings is then entitled to compensation from the authority concerned. The Court observes that the applicants failed to lodge a complaint with the Supreme Administrative Court against the inactivity of the administrative authorities. Having regard to the criteria laid down in its case-law, and more particularly to the Kudła judgment cited above, the Court concludes that the combination of the remedies advanced by the Government, remedies which are designed to accelerate the process of obtaining an administrative decision, could have enabled the applicant to put the issue of the length of the proceedings in question before the national authorities and to seek a decision terminating those proceedings “within a reasonable time” (see Bukowski v.   Poland , cited above and Marcinkowscy v.   Poland (dec), no.   39262/98, 13 November 2003). Having regard to the criteria laid down in its case-law, the Court holds that the Government’s objection should be allowed. It follows that the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4. For these reasons, the Court by a majority Discontinues the application of Article 29 § 3 of the Convention; Declares the application inadmissible.   Françoise Elens-Passos   Nicolas Bratza Deputy Registrar   President