SELIGMAN v. POLAND
Inadmissible
Georg Ress
The applicant is a Polish citizen, a farmer residing in Świerczyny. A. By an administrative decision of 9 April 1991 the applicant was obliged to re-establish the previous state of the waterflow through his property, as he had executed works which altered it. On 23 May 1991 the Toruń Governor upheld this decision. The applicant filed an appeal with the Supreme Administrative Court. In its judgment of 24 October 1991 the court established that water relations on the applicant’s lands and neighbouring farms had been severely disturbed in 1984, which caused frequent flooding of certain plots. Following requests from farmers, in 1985 the local municipality had carried out certain drainage works. However, they had proved ineffective in that the facilities had repeatedly been repaired, to no avail. The court considered that the administrative authorities had failed to establish, in particular by calling an expert, what measures should be taken in order to improve the overall situation, including that on the applicant’s property. Accordingly, the court quashed the contested decisions and ordered the case to be reconsidered, as the administrative bodies had failed to establish correctly the facts relevant for their decisions. Reconsidering the case, on 16 June 1992 the Brodnica Regional Office established inter alia that following the ineffective drainage works carried out in 1985, the applicant had blocked the gravitational flow of rain water through his land. As a result, a road nearby, used by many farmers, had been damaged. Subsequently, a ditch had been dug along this road in order to remedy problems caused by the works done by the applicant. The applicant had reacted by building a stone dam, which had blocked the flow of water along the edge of the road. In 1988 the inhabitants of the village had agreed to reinstate the status quo ante. It was, in the opinion of the administrative body, the only possible solution, as another remedy, consisting of further costly drainage works, had not been accepted by the local community. The applicant was therefore ordered to re-establish the status quo ante in order to restore natural gravitational flow of rain and ground waters on his land by demolishing a dam he had constructed. On 16 July 1992 J.S., the owner of a farm adjacent to the applicant’s, was ordered to re-establish the status quo ante by liquidating a ditch by which water had been directed toward the applicant’s land.  On 12 August 1992 the Toruń Regional Office quashed the decision of 16 June 1992 and ordered that the case be reconsidered. By a decision of the Brodnica District Office of 22 January 1993 the applicant was again obliged to restore the previous state of waterflow on his property, by demolishing the dam and by digging a ditch along the local road going through his land. The applicant appealed to the Toruń Governor, who on 24 March 1993 upheld the contested decision. On 14 October 1993 the Supreme Administrative Court dismissed the applicant’s further appeal and upheld the contested administrative decisions. The court established that the drainage works carried out by the local municipality in the 1980s had proved ineffective. Subsequently the applicant, trying to block rain and ground waters flowing onto his property from higher located neighbouring properties, had constructed a stone dam on the border between his plot and that belonging to his neighbour. This had rendered the natural gravitational flow of rain and ground water impossible and had severely disturbed existing waterflow in that the water had repeatedly been flooding the municipal road nearby, thus making difficult the access to the fields in the vicinity, belonging to 16 farmers. The court had regard to Article 50 of the Water Code providing that an owner of property could not alter the waterflow on his or her ground, existing for at least five years, if such change could negatively affect neighbouring properties. The court observed that the drainage facilities made in 1985 by the municipality were so defective that it was not economically viable to repair them. Moreover, the owners of the farms concerned, including the applicant, had refused to bear the cost of any further drainage facilities. The court also noted the decision of 16 July 1992 by which the applicant’s neighbour J.S. had likewise been compelled to take measures in order to re-establish the status quo ante on his plot. Consequently, it was only the demolition of the dam constructed by the applicant that could restore the status quo ante and also minimise damage caused by the fact that the drainage works had proved unsuccessful, and by further alterations made by the applicant. On 18 February 1994 the applicant was served with a reminder to carry out the works ordered by the decisions. On 21 October 1994 the applicant was served with a decision of 10 October 1994 to proceed to the enforcement of the decisions by an authorised company. He filed a complaint against the enforcement decision, which was subsequently dismissed. The applicant lodged a further appeal against the decision taken in the enforcement proceedings with the Supreme Administrative Court. In December 1994 a drainage ditch was dug on the applicant’s land, in enforcement of the relevant administrative decisions. On 25 January 1996 the Supreme Administrative Court dismissed the applicant’s appeal against the enforcement decisions. The court recalled that its jurisdiction in administrative enforcement proceedings was limited to examining whether the enforcement decisions were in compliance with the provisions of the Administrative Enforcement Act of 1966. The court had regard to its considerations expressed in its judgment of 14 October 1993, namely that in the absence of any wish of the owners of the lands concerned to bear costs of new drainage facilities, the solution contested by the applicant was the only feasible one. This judgment and the decisions on the merits contested by the applicant remained valid. It was not in dispute that the applicant had failed to take the steps indicated in these decisions. In these circumstances, the applicant’s objections against the enforcement decisions aimed in fact at having the case reconsidered on the merits. This could not be done in the enforcement proceedings. In so far as the applicant called into question the manner in which the company had carried out the works on his land in December 1994 in order to secure compliance with the final decision on the merits, it remained open to him to submit relevant pecuniary claims, if any, in separate proceedings. 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 of the Code 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 Pursuant to Article 26 of the Administrative Enforcement Act of 1966 the administrative enforcement proceedings are instituted at the request of the creditor who is obliged to submit a valid enforcement title to the enforcement authority. In cases in which the enforcement authority is at the same time the creditor, the proceedings are instituted ex officio on the basis of an enforcement title issued by this authority. Article 27 of the Act provides that the enforcement title should identify the creditor and the debtor, specify the contents of the obligations subject to enforcement and its substantive legal basis. Further, the legal basis for conducting administrative enforcement proceedings in respect of the obligation should be indicated. If the obligation is of a pecuniary character, the exact sums must be itemised. The title must also contain the date at which it was issued, together with the name and rank of the person who issued it. A copy of a reminder to ensure compliance with the administrative decision, served on the debtor, must be attached to the title.