KOLODZIEJ v. POLAND
Inadmissible
Nicolas Bratza
The applicants, Mr Kazimierz Kołodziej and Mrs Teresa Kołodziej, are Polish nationals who live in Toruń, Poland. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants own a flower stall. On 12 February 1992 the Toruń City Board (Zarząd Miasta) ordered them to remove the stall from a public road, where they had located it without the required authorisation. The applicant’s did not obey and, on 9 March 1992, the stall was removed and put into storage. The applicants have not attempted to recover it. On 14 October 1993 the applicants sued the Toruń Municipality before the Toruń District Court (Sąd Rejonowy), seeking compensation for their stall, which had allegedly been damaged. On 17 December 1996 the court dismissed the claim. It found that the applicants had wrongly sued the Municipality, as the party to the proceedings should have been the Toruń Governor (Wojewoda Toruński). On 9 July 1997 the Toruń Regional Court (Sąd Okręgowy) upheld the first instance judgment. Due to the value of the claim, a cassation appeal was not available in this case. On 10 April 1989 the Architect of Toruń (Architekt Miejski) issued a building permit in favour of E.W. and Z.W., the applicants’ neighbours. They were to build an outhouse. On 3 July 1989 the Toruń Governor (Wojewoda Toruński), upon the applicants’ appeal, upheld the contested decision. On 28 December 1989 the Supreme Administrative Court (Naczelny Sąd Administracyjny) remitted the case. The Governor upheld his original decision on 26 June 1990. On 17 October 1990 the Supreme Administrative Court declared that decision null and void. On 18 December 1990 the Governor again upheld his original decision. It was quashed by the Supreme Administrative Court on 14 March 1991. On 14 October 1991 the Toruń District Office ordered that E.W. and Z.W. make temporary arrangements to ensure the safety of the neighbouring house. On 23 December 1991 the Toruń Governor upheld that decision. The applicants appealed on 14 January 1992. On 30 April 1992 the Supreme Administrative Court gave judgment. On 27 August 1992 the Mayor of Toruń (Prezydent Torunia) ordered that the outhouse be demolished. On 19 October 1992 the Toruń Governor upheld the first instance decision. On 15 April 1993 the Supreme Administrative Court dismissed E.W’s and Z.W.’s further appeal. On 15 July 1994 the Minister of Town and Country Planning and Construction (Minister Gospodarki Przestrzennej i Budownictwa) refused the applicants’ neighbours’ application for the annulment of the decisions of 27 August and 19 October 1992. On 7 February 1996 the Supreme Administrative Court dismissed their appeal. On 8 November 1997 the applicants complained to the Toruń Town Office (Urząd Miasta) about the fact that the outhouse had not been demolished. In reply, the Office informed them that enforcement proceedings would be initiated. On 27 April 1998 the applicants complained about inactivity on the part of the Town Office to the Mayor of Toruń. They maintained that the demolition order of 27 August 1992 had not been executed. On 2 June 1998 the Mayor replied that the applicants’ neighbours had been fined for non-compliance with the order, but the relevant authorities had failed to execute that decision. On 7 January 1999 the applicants complained to the Kujawsko-Pomorski Governor (Wojewoda Kujawsko-Pomorski) about the inactivity of the Town Office. On 21 July 1999 the Toruń District Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego w Toruniu) informed the applicants that, since their neighbours had failed to demolish the outhouse, a so-called “vicarious” execution (wykonanie zastępcze) of the demolition order would be carried out. On 18 October 1999 the District Inspector issued a decision ordering the vicarious execution. On 5 November 1999 the Kujawsko-Pomorski Regional Inspector of Construction Supervision (Kujawsko-Pomorski Wojewódzki Inspektor Nadzoru Budowlanego) upheld that decision. On 8 May 2002 the Supreme Administrative Court dismissed E.W.’s and Z.W.’s further appeal. It appears that the demolition has not been carried out to date. At the material time section 54 of the Law of 17 June 1966 on Enforcement Proceedings in Administration (“the 1966 Act”) provided that a creditor had a right to lodge a complaint about excessive length of enforcement proceedings with an authority superior to that carrying them out. On 30 November 2001 section 54 of the 1966 Act was amended. Under §§ 2 and 3 of this provision a person whose legal or factual interest is infringed as a result of non-enforcement of the obligation has a right to lodge a complaint about the length of proceedings. Paragraph 5 provides for an appeal if a complaint is dismissed. On 1 October 1995, the Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) entered into force. Under section 17 of the 1995 Act the Supreme Administrative Court was competent to examine complaints against inactivity on the part of an authority obliged to issue an administrative decision or to carry out enforcement proceedings. Section 26 of the Act provided: “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.” Pursuant to section 30 of the 1995 Act, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity was legally binding on the authority concerned. If the authority did not comply with the decision, the court could, under section 31, impose a fine on it and might itself give a ruling on the right or obligation in question. The 1995 Act was repealed and replaced by the Law of 30 August 2002 on Proceedings before Administrative Courts (“the 2002 Act”) which entered into force on 1 January 2004. Section 3 § 2 of the 2002 Act contains provisions analogous to section 17 of the 1995 Act. It provides that administrative courts examine complaints about inactivity on the part of authorities obliged to issue an administrative decision or to carry out enforcement proceedings. Under section 149, if a complaint is well-founded, an administrative court shall oblige the authority concerned to issue a decision, to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.