CASE OF KARASINSKA v. POLAND
Violation of Article 6 - Right to a fair trial
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
4. The applicant was born in 1952 and lives in Poznań. 5. The applicant lives in a rented flat in a house in Poznań. 6. In 1995 a certain M.W. converted an attic above the applicant's flat into a flat and, without the required permit, moved in. She failed to carry out the necessary soundproofing work and, as a result, the applicant could be heard from her flat and is disturbed by noise coming from the flat above her. 7. In 1995 the applicant instituted administrative proceedings. She sought a demolition order in relation to the unauthorised flat. 8. On 28 June 1998 the mayor of Poznań gave a decision ordering the compulsory demolition “of the constituent elements of the flat” and imposing on the co-owners of the building an obligation to restore the attic to its former condition (przywrócenie stanu poprzedniego). 9. On an unspecified date the co-owners of the building and M.W. appealed against that decision. 10. On 24 September 1998 the Poznań Governor (Wojewoda Poznański) quashed part of the challenged decision in so far as it imposed obligations on the co-owners of the building and upheld the remainder of the decision. 11. On an unspecified date M.W. lodged a complaint with the Supreme Administrative Court. She requested that both decisions be declared null and void. 12. On 25 May 1999 the Supreme Administrative Court (Naczelny Sąd Administracyjny) gave judgment and, for procedural reasons, quashed part of the challenged decision in so far as it had set aside the first-instance decision. The court dismissed the remainder of the complaint, with the result that the coowners of the house became obliged to carry out the demolition and to restore the attic to its previous condition. 13. The obligations arising from the final judgment of the Supreme Administrative Court were not performed by the co-owners. 14. In November 1998 the administrative enforcement authority, namely the Poznań Local Inspector of Construction Supervision (Powiatowy Inspektor Nadzoru Budowlanego), sent a reminder to the co-owners to perform their obligations imposed by the final and enforceable decision of the Poznań Governor. The reminder remained ineffective. 15. In September 1999 another reminder, also ineffective, was sent to the debtors. 16. On 12 October 1999 the Poznań Local Inspector of Construction Supervision imposed a fine on the co-owners for non-performance of their obligations (grzywna w celu przymuszenia). The fine was subsequently enforced but, as the co-owners had appealed against the decision imposing the fine and the Supreme Administrative Court quashed it, the amount paid had to be returned to the debtors. 17. On 18 August 2000 the applicant's lawyer complained of the inactivity of the administrative authorities to the Regional Inspector of Construction Supervision. He relied on the newly amended section 54(2) of the 1966 Administrative Enforcement Proceedings Act (ustawa o postępowaniu egzekucyjnym w administracji), which allowed creditors to lodge complaints about the excessive length of administrative enforcement proceedings. It appears that the applicant's lawyer's complaint remained ineffective. 18. On 21 March 2002, relying on the same ground as previously, the applicant's lawyer again complained about the excessive length of the administrative enforcement proceedings to the Regional Inspector of Construction Supervision. 19. On 30 April 2002 the Regional Inspector of Construction Supervision dismissed the complaint, finding that the enforcement proceedings had been carried out properly and without undue delay. The Regional Inspector mentioned the Supreme Administrative Court's judgment, according to which the “necessity of enforcing the demolition order cannot lead to the carrying out of unlawful activities”. 20. On 7 March 2003 the applicant's lawyer lodged a further complaint about the excessive length of the administrative enforcement proceedings with the Regional Inspector of Construction Supervision. 21. This complaint was not examined within the statutory time-limit. Therefore, on 6 May 2003, the applicant lodged an appeal with the Chief Inspector of Construction Supervision, complaining that the administrative case had not been examined within the prescribed time-limit. 22. On 21 May 2003 the Chief Inspector of Construction Supervision ordered the Regional Inspector to examine the complaint. 23. On 22 May 2003 the Regional Inspector of Construction Supervision dismissed the complaint. 24. On 2 June 2003 the applicant appealed against that decision. 25. On 9 July 2003 the Chief Inspector of Construction Supervision upheld the decision. 26. On 4 August 2003 the applicant lodged a complaint against that decision with the Supreme Administrative Court. 27. Following the reform of the administrative courts in Poland, the complaint was transferred to the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny). 28. On 28 January 2005 the Warsaw Regional Administrative Court gave judgment and dismissed the complaint. The court found that the decisions of the administrative authorities at first and second instance dismissing the applicant's complaint about the excessive length of the enforcement proceedings had been given in accordance with the relevant provisions. It further found that the administrative authorities had conducted the proceedings “without undue delay” and that the enforcement could not be performed because M.W. still lived in the flat in question and had refused to leave it. Therefore, the persons responsible for enforcement of the final decision had to institute civil proceedings for termination of the lease agreement with M.W. and the proceedings were still pending, which constituted an objective obstacle to enforcement. 29. Irrespective of the official complaints about the excessive length of the enforcement proceedings lodged in accordance with the 1966 Administrative Enforcement Proceedings Act, the applicant sent reminders and letters to the administrative authorities, urging them to act (letters of 13 March 2003, 30 May 2003 and 17 November 2003). These letters, however, remained unanswered. 30. Section 54(2) of the 1966 Administrative Enforcement Proceedings Act (ustawa o postępowaniu egzekucyjnym w administracji) provides, in its relevant part, that a complaint about the excessive length of enforcement proceedings may also be lodged by a creditor who is not the administrative authority responsible for conducting the enforcement proceedings. 31. Section 48(1) of the Construction Act of 7 July 1994 (Prawo budowlane), as applicable at the material time, provided, in so far as relevant, as follows: “The relevant authority 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 contrary to the building permit...”