CASE OF BORYSIEWICZ v. POLAND
Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1947 and lives in Pabianice. She owns a semidetached house located in a residential area. A tailoring workshop employing about 20 people was located in the other half of the building. 6. On 14 September 1993 the applicant made an application to the City Council for a ban on the operation of the workshop or at least for measures to be taken to reduce the level of noise it generated. 7. On 11 June 1994 the Director of the Pabianice District Office, to which the application of 14 September 1993 must have been transferred, issued a decision in which it found that the workshop was operating without the required permission. He obliged the owner of the workshop to take steps to remedy the situation, inter alia by obtaining an environmental impact assessment of the workshop and by carrying out adaptation works. 8. On 30 January 1995 the Governor of Łódź approved a “[t]echnical project on protection of the environment against noise”, and obliged the owner to comply with the project and to submit an evaluation of the noise level. 9. On 7 February 1995 the Governor of Łódź approved the location of the workshop on condition that the owner complied with the requirements set out in the decision of 30 January 1995. 10. On 15 March 1995 the Director of the Construction Supervision Department of the Town Office gave instructions as to the way in which the works to adapt the workshop should be conducted. The applicant appealed. 11. On 4 April 1995 the applicant lodged an appeal with the Governor of Łódź in which she complained that she had not been allowed to participate in the proceedings. She submitted that she should have been treated as a party to them and that she had not received an answer to her application of 14 September 1993. 12. On 11 May 1995 the applicant made an application to the Minister of Environment for the proceedings – which must have been discontinued on an unspecified earlier date – to be reopened in order to enable her to participate as a party to the proceedings in order to have her arguments taken into consideration. 13. On 17 May 1995 the Governor of Łódź stayed the appeal proceedings against the decision of 15 March 1995 until the request for reopening of 11 May 1995 had been considered. The workshop’s owner appealed. 14. On 7 August 1995 the General Inspector of Construction Supervision quashed the decision of 17 May 1995. 15. On 20 October 1995 the Governor of Łódź stayed the appeal proceedings against the decision of 15 March 1995. The workshop’s owner appealed. 16. On 15 December 1995 the General Inspector of Construction Supervision upheld the decision of 20 October 1995. The applicant appealed. 17. On 25 February 1997 the applicant made an application to the Governor of Łódź requesting, inter alia, that the decisions of 7 August 1995 and 15 December 1995 be quashed and that the operation of the workshop be stayed until a decision was made on the merits of her request of 1993. 18. On 14 November 1997 the Minister of Environment quashed the decisions of 7 August 1995 and 30 January 1995. In the written grounds he stated that the noise pollution inside the applicant’s home was not a matter of environmental protection, so that there was no legal basis for the proceedings to be instituted. The applicant appealed to the Supreme Administrative Court. 19. In a letter of 12 January 1998 to the Director of the Pabianice District Office the applicant requested that the appeal proceedings against the decision of 15 March 1995 be stayed until the appeal against the decision of 14 November 1997 lodged with the Supreme Administrative Court had been decided. On 30 January 1998 the Governor of Łódź, to whom this request must have been transmitted, stayed the proceedings as requested. The applicant’s neighbour appealed. 20. On 18 March 1998 the General Inspector of Construction Supervision quashed the decision of 30 January 1998 and remitted the case for reconsideration. 21. On 26 August 1998 the Governor of the Town of Łódź upheld the decision of 15 March 1995 and set a new time-limit for the workshop’s owner to comply with the imposed obligations. 22. On 25 November 1998 the Director of the Pabanice District Office granted permission for the operation of the workshop. The applicant appealed. On 23 March 1999 the Governor of Łódź quashed the decision of 25 November 1998 and remitted the case for reconsideration. The workshop’s owner appealed. 23. On 13 November 2001 proceedings were instituted to determine whether the operation of the workshop was lawful. On the same day the applicant was informed that on 13 December 2001 an inspection of the building would be carried out. On the same day the Supreme Administrative Court dismissed the owner’s appeal against the decision of 23 March 1999. 24. On 29 November 2001 the Mayor of Pabianice stayed the proceedings concerning the granting of permission until the Pabianice District Inspector of Construction Supervision had given a decision as to whether the operation of the workshop complied with the applicable legal requirements. The applicant appealed. 25. On 8 March 2002 the Mayor of Pabianice issued an operation permit for the workshop. The applicant appealed. On 26 April 2002 the Governor of Łódź informed the applicant that the time-limit set by law to decide on her appeal had been extended because of the need for checks to be done by the building inspection authorities. 26. On 7 June 2002 the Governor of Łódź upheld the decision of 8 March 2002. The applicant lodged a complaint with the Supreme Administrative Court. 27. By a decision of 29 October 2002 the Pabianice District Inspector of Construction Supervision authorised the operation of the workshop. The applicant appealed. 28. On 25 February 2003 the Supreme Administrative Court quashed the decision of 7 June 2002 and the preceding decision of 8 March 2002. It observed that noise evaluation tests were necessary for a decision allowing the operation of the workshop. Such tests had already been carried out in the case, but not in an appropriate manner. They should have been carried out during the working hours of the workshop and at different times and should have allowed for the applicant’s involvement to enable her to put forward her arguments to the person conducting the tests. 29. On 18 March 2003 the Pabianice Inspector of Construction Supervision stayed the proceedings concerning the permission to operate the workshop. The applicant appealed and they were resumed at an unspecified later date. 30. On 3 July 2003 the Mayor of Pabianice issued a decision obliging the workshop’s owner to supplement the submitted documentation by, inter alia, submitting an evaluation of the noise level before 30 September 2003. 31. On 29 October 2003 the District Inspector of Construction Supervision gave permission to operate the workshop on the basis of noise evaluation tests carried out by a certain S.K. The applicant appealed, challenging the soundness of the outcome of the tests and the way they had been carried out. 32. On 28 January 2004 the Łódź Regional Inspector of Construction Supervision quashed the decision of 29 October 2003, finding that the applicant had not been given an opportunity to be sufficiently involved in the noise evaluation tests. 33. On 22 October 2004 the applicant lodged a complaint with the Łódź Regional Inspector of Construction Supervision about inactivity on the part of the Pabianice District Inspector of Construction Supervision, to whom the case had been remitted for reconsideration on the strength of the decision of 28 January 2004. 34. On 20 October 2004 the Łódź Regional Inspector of Construction Supervision gave a decision in which it found inactivity on the part of the Pabianice District Inspector of Construction Supervision and obliged him to give a decision by 20 February 2005. 35. On 14 January 2005 the applicant lodged a complaint with the General Inspector of Construction Supervision about the administration’s failure to act in her case. 36. By a decision of 7 March 2005 the General Inspector of Construction Supervision stated that no inactivity on the part of the Łódź Regional Inspector of Construction Supervision had been found. 37. On 18 March 2005 the Pabianice District Inspector of Construction Supervision stayed the proceedings concerning the request for permission to operate, pending the outcome of noise tests to be carried out by the Regional Inspector of Environmental Protection. The applicant appealed. On 23 June 2005 the Łódź Regional Inspector of Construction Supervision allowed her appeal, quashed the decision staying the proceedings and ordered that they should be conducted further. 38. On 27 July 2005 the applicant complained to the administrative court about the District Inspector’s failure to take any steps to have a proper noise evaluation carried out and to give a decision on the merits of the case. In his reply of 25 August 2005 the Regional Inspector summarised the developments in the proceedings since the applicant’s complaint of 22 October 2004 and reiterated that the proceedings were, after its decision of 23 June 2005, pending before the first-instance authority. It noted that the applicant’s appeal against the decision of 18 March 2005 to stay the proceedings was fully justified. 39. By a judgment of 20 October 2005 the Łódź regional administrative court partly allowed the applicant’s complaint and set a one-month timelimit for the District Inspector to give a decision. It summarised the conduct of the proceedings since its judgment of 25 February 2003. It further observed that the proceedings had been conducted exceedingly slowly and that no valid justification for this unreasonable delay had been adduced by the administrative authorities. 40. The proceedings are pending. 41. Under domestic law inactivity on the part of authorities is open to challenge. Firstly, a party to administrative proceedings can make a complaint to a hierarchically higher authority under Article 37 § 1 of the Code of Administrative Procedure in order to urge the relevant authority to issue a decision within the timelimits fixed in that Code. 42. If unsatisfied with the outcome of the proceedings initiated by a complaint under Article 37 of the Code of Administrative Procedure, up to 1 January 2004 a party could have lodged a complaint about inactivity on the part of the administrative authorities with the Supreme Administrative Court under Article 17 of the Act of 1995 on the Supreme Administrative Court. This provision was repealed with effect from 1 January 2004. 43. On 1 January 2004 the 1995 Act was replaced by the Act on Proceedings before Administrative Courts of 30 August 2002, which provides for similar remedies.