SCISLOSKI v. POLAND
Inadmissible
Nicolas Bratza
The applicant is a Polish citizen, living in Ciębłowice Duże, Poland. may be summarised as follows. A. On 21 November 1988 the Tomaszów Mazowiecki District Prosecutor conditionally discontinued criminal proceedings against the applicant instituted on suspicion of his having constructed a building on his farm contrary to the terms of a building permit he had received, considering that the applicant’s offence was of minor importance and that it was not justified to proceed further. On 29 December 1988 the Tomaszów Mazowiecki municipality ordered the applicant to stay the construction works, to draw up an inventory of the works carried out to date and to request the municipality to give an administrative decision allowing for the works to be continued. The municipal authority considered that the applicant had failed to comply with the terms of the building permit in that he had changed the placement of the building on the plot, changed the dimensions of the building, had a basement constructed and had added windows and doors not provided for by the permit. The applicant’s neighbour E.K. appealed against this decision. On 21 January 1989 the municipal office inspected the construction site. On 21 March 1989 the Piotrków Trybunalski Regional Office set the decision of 29 December 1988 aside and ordered that the case be reconsidered. The administrative authority was of the view that the applicable legal provisions required that a building intended to serve for husbandry purposes should be located at least 15 metres from the nearest well. Following the changes effected by the applicant in relation to the building permit, the building was to be situated 9,5 metres from a well located on the adjacent plot of E.K. Moreover, the applicant had enlarged the building and it was planned that it would serve, inter alia, as a pigsty for 30 pigs, instead of 15 as foreseen by the permit. Thus, it was necessary to hold an administrative hearing in order to establish whether the nuisance which these changes could cause to his neighbours would be within the limits prescribed by the construction laws. On 5 May 1989 the Tomaszów Mazowiecki municipality ordered the applicant to partially demolish the building, to bring it into conformity with the original building permit, and to ensure that the distance between the part of the building designed for husbandry and the well on the adjacent plot would be not less than 15 metres. The applicant appealed. On 8 July 1989 the Tomaszów Mazowiecki Regional Office upheld the decision, considering that it was in conformity with the law. On 26 September 1989, the Supreme Administrative Court refused to grant the applicant retrospective leave to appeal against this decision. Apparently the proceedings were reopened later. On 5 March 1991 the Minister of Construction again ordered that the building be demolished. On 6 December 1991 the Supreme Administrative Court upheld this decision. On 23 May 1990, 14 February 1994, 8 April 1994 and 17 January 1995, the Tomaszów Mazowiecki District Office imposed fines on the applicant, in order to compel him to demolish part of the building, in accordance with the decision of 5 May 1989. On 3 October 1994 the Tomaszów Mazowiecki Administrative Offences Board also imposed a fine on the applicant for the regulatory offence of failure to comply with an administrative decision. On 20 January 1995 the Tomaszów Mazowiecki District Office issued an injunction, authorising an outside company to demolish the applicant's building, at the applicant’s expense. The applicant lodged a complaint concerning the enforcement decision with the Regional Office in Piotrków Trybunalski. On 20 February 1995 the decision under appeal was upheld by the Piotrków Trybunalski Regional Office, which first took into consideration the applicant’s failure to comply with the demolition order of 1989. The authority further considered that in view of the fact that the administrative enforcement proceedings had been pending for a long time and that the applicant had not taken any steps to regularise his situation, the administrative authority was justified in ordering the demolition by an authorised company, as provided by the Law on Administrative Enforcement of 1966. The applicant lodged an appeal with the Supreme Administrative Court. On 8 August 1995 the Court refused to entertain the applicant's appeal, considering that under Article 196 § 1 of the Code of Administrative Procedure no appeal to the court lay against an injunction ordering an enforcement of a non-pecuniary administrative obligation, which the party to the proceedings refused to carry out. B. Relevant domestic law 1. Judicial review of administrative decisions Article 196 § 1 of the Code of Administrative Procedure, as applicable at the relevant time, provided that an appeal could be lodged with the Supreme Administrative Court against a second-instance administrative decision on the merits on the ground that the decision was not in conformity with the law. Article 207 § 2 states that the Court could set the decision aside wholly or in part if it established that the decision was issued in breach of substantive law, that the proceedings leading to the decision were flawed with a deficiency which led to the decision being null and void, or if such procedural shortcomings had occurred in the proceedings leading to the decision which would justify their reopening. 2. Enforcement of administrative decisions Chapter III of the Administrative Enforcement Act of 1966 (hereafter “the Act”) sets out the principles of administrative enforcement concerning non-pecuniary obligations. Provisions relating to enforcement by way of imposing fines are contained in Part 2, whereas those concerning injunctions to carry out the obligations on behalf and at the expense of the parties to the proceedings are contained in Part 3. Article 119 § 1 of the Act provides that a fine can be imposed in order to compel a person to comply with an obligation to bear or to desist from certain acts, or to carry out certain acts, particularly acts which, due to their nature, cannot be carried out by other persons. Such fines can be imposed repeatedly. Pursuant to Article 127 of the Act, an injunction to carry out an administrative obligation can be issued when the administrative enforcement proceedings are being conducted in respect of a non-pecuniary obligation which can be carried out on behalf of the party and at its expense. The person against whom administrative enforcement proceedings are being conducted is entitled to lodge a complaint against the decisions given in such proceedings with the organ conducting the proceedings. 3. Relevant provisions of the Law on Construction Article 48 of the Law on Construction of 1974 (repeated in the same form in the Law on Construction of 1994, which entered into force on 10 January 1995) provided, insofar as relevant: “The competent organ shall … order that a building, or part of a building, be demolished if it is under construction or has been constructed without an appropriate permit or notification thereof, or in breach of the terms of the permit…”