CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 novembre 2008

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s52E4ED8D { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF8DCB537 { width:16.53pt; display:inline-block } .s25347E17 { width:182.43pt; display:inline-block } .s92A1A400 { width:0.97pt; display:inline-block } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 31419/03 by Zdzisław JASNOWSKI and Zdzisława JASNOWSKA against Poland The European Court of Human Rights (Fourth Section), sitting on   13   November 2008 as a Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Ljiljana Mijović,   David Thór Björgvinsson,   Ján Šikuta,   Päivi Hirvelä,   Mihai Poalelungi, judges, and Lawrence Early, Section Registrar , Having regard to the above application lodged on 11 September 2003, 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, Mr Zdzisław Jasnowski and Zdzisława Jasnowska, are   Polish nationals who were born in 1941 and 1942 respectively. They both live in Nowa Sól, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of   Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as   follows. The applicants own a semi-detached house in Nowa Sól. In 1997 their house was considerably damaged by flooding. Subsequently, the applicants intended to build an extension to their house. Under the domestic law they were required to obtain a planning permission and subsequently a   construction permit. They instituted administrative proceedings with   a   view to obtaining these decisions. 1.     Proceedings concerning a planning permission On 20 January 1998 the applicants applied to the Mayor of Nowa Sól ( Prezydent Miasta ) for a planning permission ( decyzja o warunkach zabudowy i zagospodarowania terenu ) for the intended extension of their house. On 21 January 1998 the Mayor granted them the permission. The   applicants’ neighbour appealed against that decision. On 27 March 1998 the Zielona Góra Self-Government Board of Appeal ( Samorządowe Kolegium Odwoławcze ) quashed the Mayor’s decision and remitted the case. On 22 May 1998 the Mayor granted the applicants a one year valid planning permission. The applicants’ neighbour appealed. On 7 July 1998 the Self-Government Board of Appeal upheld the Mayor’s decision. The   applicants’ neighbour filed an appeal against that decision with   the   administrative court. On 24 August 1999 the Supreme Administrative Court quashed the Board of Appeal’s decision of 7 July 1998 and remitted the case. On 7 October 1999 the Board of Appeal re-examined an appeal lodged by the applicants’ neighbour. It found that the appeal proceedings were devoid of purpose since the planning permission had meanwhile lost its validity. The applicants’ neighbour again filed an appeal against that   decision with the administrative court. On 6 February 2001 the Supreme Administrative Court quashed the   Board of Appeal’s decision of 7 October 1999 and remitted the case. On 13 April 2001 the Board of Appeal quashed the Mayor’s decision of   22 May 1998 and remitted the case. The applicants and their neighbour lodged appeals against that decision with the administrative court. On 6 March 2002 the Supreme Administrative Court dismissed the   appeal lodged by the applicants’ neighbour. On 26 April 2002 it   discontinued the proceedings in respect of the applicants’ appeal since they had withdrawn it. In the meantime, on 11 March 2002 the Nowa Sól Mayor issued a new planning permission for the applicants. The permission remained valid until 31 March 2004. On 18 April 2002 the Local Government Board of Appeal upheld the Mayor’s decision. The applicants’ neighbour filed an appeal against that decision with the administrative court. On 25 August 2004 that the Poznań Regional Administrative Court ( Wojewódzki Sąd Administracyjny ) quashed the Board of Appeal’s decision of 18 April 2002 and remitted the case. On 3 November 2004 the Self-Government Board of Appeal partly quashed part of the Mayor’s decision of 11 March 2002, remitted the case and partly discontinued the proceedings. 2.     Proceedings concerning a construction permit On 31 July 1998 the applicants applied for a construction permit ( pozwolenie na budowę ) for the extension of their house. On   9   September   1998 the Head of the Nowa Sól District Office ( Kierownik Urzędu Rejonowego ) granted them the construction permit. The applicants’ neighbour appealed against that decision. On 21 October 1998 the Zielona Góra Governor ( Wojewoda ) quashed the decision and remitted the case. On 19 November 1998 the Head of the Nowa Sól District Office again granted a construction permit to the applicants. The applicants’ neighbour appealed. On 16 December 1998 the Zielona Góra Governor upheld the   District Office’s decision. On 11 January 1999 the applicants’ neighbour filed an appeal against the   Governor’s decision with the Supreme Administrative Court. On   14   January   2000 the Supreme Administrative Court quashed the   decision and remitted the case to the Lubuski Governor. On 7 April 2000 the Lubuski Governor quashed the Head of the Nowa Sól District Office’s decision of 19 November 1998 and remitted the case to   the first-instance administrative authority. On 7 July 2000 the Mayor of the Nowa Sól District ( Starosta Powiatu ) granted the applicants a construction permit. The applicants’ neighbour appealed. However, on 22 August 2000 the Lubuski Governor upheld the   Mayor’s decision. Subsequently, the applicants’ neighbour filed an appeal against that   decision with the Supreme Administrative Court and applied for a stay of   execution. On 24 November 2000 the court decided that the execution of   the Governor’s decision of 22 August 2000 should be stayed. On 25 January 2001 the applicants requested the Supreme Administrative Court to accelerate the examination of the case. On 17 May 2001 the Supreme Administrative Court quashed the   Governor’s decision of 22 August 2000 and remitted the case to   that   authority. On 31 August 2001 the Lubuski Governor upheld the Mayor of   the   Nowa Sól District’s decision of 7 July 2000 granting a construction permit to the applicants. The applicants’ neighbour filed an appeal against that decision with the administrative court. On 27 November 2001 the   Supreme Administrative Court ruled that the execution of   the   Governor’s decision of 31 August 2001 should be stayed. On 14 January 2002 the Lubuski Governor requested the court to   accelerate the examination of the appeal. On 26 April 2002 the Supreme Administrative Court quashed the   Governor’s decision of 31 August 2001. It stressed that the Governor’s decision granting a construction permit to the applicants could not have been issued as the validity of the planning permission had expired in   the   meantime. On 24 June 2002 the Lubuski Governor quashed the Mayor of the Nowa Sól District’s decision of 7 July 2000 and remitted the case. On 20 August 2002 the Mayor of the Nowa Sól District granted a   construction permit to the applicants. On 28   October 2002 the Lubuski Governor dismissed the appeal of the applicants’ neighbour against the   decision of 20 August 2002. On an unspecified date the applicants’ neighbour filed an appeal against the Governor’s decision with the administrative court. Subsequently, the   Poznań Regional Administrative Court became competent to examine the appeal. On 13 May 2005 the Poznań Regional Administrative Court quashed the   Governor’s decision of 28 October 2002 and remitted the case. On 6 October 2005 the Lubuski Governor quashed the Mayor of   the   Nowa Sól District’s decision of 20 August 2002 and remitted the   case. On 29 March 2006 the Mayor of the Nowa Sól District granted a   construction permit to the applicants. The applicants’ neighbour appealed. On 1 June 2006 the Lubuski Governor upheld the decision of the Mayor of the Nowa Sól District. On 25 July 2007, the Gorzów Wielkopolski Regional Administrative Court quashed both decisions (of 29 March and 1 June 2006). It is not clear whether the applicants filed a cassation appeal with the Supreme Administrative Court against this judgment. B.     Relevant domestic law and practice The relevant domestic law concerning inactivity on the part of   administrative authorities is described 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. As regards the remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, they are described 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. COMPLAINT The applicants complained under Article 6 of the Convention about excessive length of administrative proceedings in their case. THE LAW The applicants complained that the length of both sets of administrative proceedings in their case 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 raised a preliminary objection that the applicants had not exhausted domestic remedies available to them under Polish law, as   required by Article 35 § 1 of the Convention. They maintained that the   applicants failed to exhaust a remedy provided by Article 37 § 1 of   the   Code of the Administrative Procedure that is a complaint about an   inactivity of an administrative organ. In addition, in respect of the proceedings before the Poznan Regional Administrative Court and the Supreme Administrative Court, the   Government stressed that the applicants should have exhausted remedies provided for in the 2004 Act. The applicants contested the Government’s submissions. 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, Bukowski v.   Poland (dec.), no. 38665/97, 11   June   2002, and Futro v.   Poland (dec.), no.   51832/99, 3   June   2003). Examining the instant case, the Court notes that the applicants failed to   file a complaint about inactivity in respect of the non-judicial stage of   the   administrative proceedings, they also failed to lodge a complaint under the 2004 Act in respect of the judicial stage thereof. The Court observes that the applicants have not contested the availability of the remedies relied on by the Government. The judicial administrative proceedings in the present case lasted between an unspecified date after October 2002 and 13 May 2005. In   respect of that set of proceedings the applicants could have availed themselves of   the   remedy under the 2004 Act, the more so since the proceedings were of considerable length (over two years and six months). Therefore, the   Court finds that the applicants did not exhaust the available domestic remedies. It follows that the application must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. For these reasons, the Court unanimously Declares the application inadmissible.   Lawrence Early   Nicolas Bratza   Registrar President