CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 11 janvier 2011

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POLAND   (Application no. 26764/08)                       JUDGMENT       STRASBOURG   11 January 2011     This judgment is final but it may be subject to editorial revision. In the case of Gawlik 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 1.     The case originated in an application (no. 26764/08) 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 two Polish nationals, Mr Zbigniew Gawlik (“the first applicant”) and Mrs Ewa Gawlik (“the second applicant”), on 28 May 2008. 2.     The Polish Government (“the Government”) were represented by their Agent, Mr J. Wolasiewicz of the Ministry of Foreign Affairs. 3.     On 17 December 2009 the President of the Fourth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicants are a married couple. The first applicant was born in 1962 and the second applicant was born in 1960. They live in Jelenia Gora. 5.     In 1987 the applicants bought a plot of land with a partially constructed main house and an outhouse. In 2001 they made a few alterations to the outhouse. 6.     On 8 November 2001, on a request of one of the neighbours, the Jelenia Góra District Inspector of Construction Supervision ( Powiatowy Inspektor Nadzoru Budowlanego ) instituted administrative proceedings contesting the legality of the outhouse. 7.     On 3 December 2001 the District Inspector ordered the applicants to stop all alterations to the building in question. 8.     On 9 January 2002 the administrative proceedings were stayed in order to verify whether the works were carried out in accordance with the local development plan. 9.     On 8 May 2002 the District Inspector gave a decision and ordered the applicants to carry out certain works in order for the building to be considered legal. The applicants were to do these works within a time-limit of one month. 10.     On 24 June 2002 the District Inspector quashed its previous decision. 11.     On 8 August 2002 the District Inspector gave another decision ordering the applicants to carry out extensive alterations to the outhouse. The applicants appealed. 12.     On 24 October 2002 the Wrocław Regional Inspector of Construction Supervision ( Dolnoslaski Wojewódzki Inspektor Nadzoru Budowlanego ) quashed the first-instance decision and remitted the case. 13.     On 1 April 2003 a viewing of the site was held. 14.     On 9 June 2003 the applicants submitted an expert's opinion relating to the legality of the building in question. 15.     On 18 November 2003 the District Inspector informed the applicants that the expert's opinion was not complete. They submitted the relevant document on 20 December 2003. 16.     On 13 April 2004 the District Inspector informed the applicants that the proceedings were pending and the legality of the building was being considered. 17.     On 1 December 2004 the District Inspector gave a decision and ordered the applicants to demolish the outhouse. The applicants appealed. On 14 March 2005 the Regional Inspector of Construction Supervision again quashed the first-instance decision and remitted the case. 18.     On 15 December 2005 the District Inspector again ordered the applicants to demolish the building in question. On the applicants' appeal, on 21 February 2006 the Regional Inspector upheld the first-instance decision. 19.     On 19 October 2006 the Wrocław Regional Administrative Court quashed both decisions and remitted the case to the first-instance authority. 20.     On 27 July 2007 the applicants lodged a complaint under Article 37 § 1 of the Code of Administrative Procedure with the Regional Inspector (about the delay in the proceedings). 21.     On 22 August 2007 the Regional Inspector replied that the District Inspector was thoroughly examining the case in order to avoid any errors. While indeed the proceedings were conducted slowly, at this stage of the procedure he did not see any reason to intervene. 22.     On 11 September 2007 the District Inspector asked the applicants to submit an expert's opinion on the technical conditions of the outhouse. The opinion was submitted on 26 October 2007. Subsequently, the District Inspector on several occasions asked the applicants to submit additional information in particular as regards the expert's qualifications. They submitted the required documents on 31 December 2007 and maintained that there was no need for any additional information. 23.     On 15 April 2008 the District Inspector ordered an expert's opinion at the applicants' expense. 24.     On 3 July 2008, in reply to the applicants' complaint the Regional Inspector confirmed that there had been a delay in the proceedings and ordered the District Inspector to proceed with the case within the time-limit of 14 days. 25.     On 15 September 2008 the expert submitted his opinion. The District Inspector also conducted a viewing of the site. 26.     On 17 September 2008 the District Inspector informed the parties that an administrative decision would be delivered and they could acquaint themselves with the evidence collected. 27.     On 2 October 2008 the applicants requested the District Inspector to comply with the instructions given by the Warsaw Administrative Court in its earlier judgment of 19 October 2006. 28.     On 9 March 2009 the District Inspector ordered the applicants to submit yet another expert's opinion as, allegedly, the opinions already submitted were not correct. 29.     On 10 June 2009 the District Inspector ordered an expert's opinion at the applicants' expense. On 22 June 2009 the applicants appealed. They stressed that they had already submitted several extensive expert opinions and that the administrative authority had all the necessary evidence to deliver a decision. 30.     The proceedings are pending before the District Inspector. II.     RELEVANT DOMESTIC LAW AND PRACTICE 31.     The relevant domestic law and practice concerning remedies for the excessive length of administrative proceedings, in particular the applicable provisions of the Code of Administrative Procedure and the Act on Proceedings before Administrative Courts, are described in the cases of Grabiński v.   Poland no.   43702/02, §§   60-65, 17   October 2006, Koss   v.   Poland , no.   52495/99, §§   21-25, 28   March 2006, and Kaniewski v.   Poland, no. 8049/02, §§   22-28, 8   November 2005. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 32.     The applicants complained that the length of the administrative 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...” 33.     The Government contested that argument. 34.     The period to be taken into consideration began on 8   November   2001 and has not yet ended. A.     Admissibility 35.     The Government raised a preliminary objection that the applicants had not exhausted domestic remedies available to them under Polish law. They underlined that the applicants did not attempt to pursue all effective domestic remedies with respect to their complaint about the length of the administrative proceedings. 36.     The Government stressed that applicants had only on one occasion lodged an appeal with the higher authority under Article 37 § 1 of   the Code of Administrative Procedure. They maintained that under Article 17 of the Law of 11 May 1995 on the Supreme Administrative Court the applicants could have further lodged a complaint with the Supreme Administrative Court. The Government further submitted that after 1   January   2004, that is after the date of the entry into force of the Law of   30   August 2002 on Proceedings before Administrative Courts, which replaced the 1995 Act, the applicants could have made use of Section 3 § 2 of the 2002 Act which contains provisions analogous to Section 17 of the 1995 Act. Finally, they argued that the applicants 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 Articles 417 and 417¹ § 3 of the Civil Code. 37.     The applicants claimed that they had exhausted all available domestic remedies. 38.     The Court notes the applicants lodged a complaint about inactivity on the part of the administrative authorities (see paragraph 20 above). The competent supervision body found the complaint well-founded and ordered the proceedings to be accelerated (see paragraph 24). In these circumstances the Court does not consider that the applicants should have lodged a further complaint with the Supreme Administrative Court in order to fulfil their obligation under Article   35 § 1. 39.     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 has been formally determined that there has been an unlawful failure to issue an administrative decision within the relevant time-limits. 40.     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 themselves of some of the possibilities available to them within the administrative procedure system, the applicants were not required to embark on another attempt to obtain redress by bringing civil proceedings or another form of administrative action for compensation. 41.     Accordingly, the Court concludes that in the circumstances of the case seen as a whole the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. 42.     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. B.     Merits 43.     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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 44.     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). 45.     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. 46.     There has accordingly been a breach of Article 6 § 1. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 47.     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 48.     The applicants claimed 70,000 Polish zlotys in respect of non ‑ pecuniary damage and PLZ 1,800 in respect of pecuniary damage. 49.     The Government contested these claims. 50.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicants EUR 3,600 in respect of non ‑ pecuniary damage. B.     Costs and expenses 51.     The applicants did not make any claims for the costs and expenses. C.     Default interest 52.     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 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention;   3.     Holds (a)     that the respondent State is to pay the applicants, within three months, EUR 3,600 (three thousand six hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, 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;   4     Dismisses the remainder of the applicants' 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