FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 33046/03
by Janina and Ryszard KUŁAGA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 12 January 2010 as a Chamber composed of:
and Fatoş Aracı, ,
Having regard to the above application lodged on 25 September 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Janina and Mr Ryszard Kułaga, are Polish nationals who were born in 1927 and 1956 respectively and both live in Tuczępy. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 June 1998 a certain A. P. applied for permission to build a shed for his agricultural tools on his farm.
Earlier, on 7 September 1996 the Tuczępy Village Mayor had given planning permission () for A. P.’s land. In accordance with a local master plan (miejscowy plan zagospodarowania przestrzennego) the permit provided for a shed to be built.
On 6 July 1998 the Tuczępy Village Mayor informed the applicants that he had instituted the proceedings.
On 9 July 1998 the applicants raised an objection against the proceedings.
On 24 July 1998 the Tuczępy Village Mayor informed the parties that he had obtained the evidentiary material in the case.
On 3 August 1998 the applicants raised an objection against the proceedings.
On 31 December 1998 the Tuczępy Village Mayor gave permission for the construction.
On 19 January 1999 the applicants appealed, alleging that as A. P.’s farm bordered theirs, the shed would inevitably block their access to a road. They requested to have the decision of 31 December 1998 declared null and void.
On 22 April 1999 the Świętokrzyski Regional Office (urząd wojewódzki) quashed the decision and remitted the case.
On 18 May 1999 A. P. filed a cassation complaint with the Supreme Administrative Court.
On 6 March 2003 A. P.’s complaint was admitted for examination. The court ruled that the case should be remitted to the first-instance authority for re‑consideration.
On 4 February 2004 the applicants lodged a complaint under Article 37 § 1 of the Code of Administrative Procedure, alleging inactivity on the part of the administrative authorities and that they had not had their case examined within the prescribed time-limits.
On 26 February 2004 the Świętokrzyski Governor (wojewoda) found the applicants’ complaint to be well-founded and fixed a one-month time-limit for the Busko District Municipality (which had taken over the functions of the Tuczępy Village Mayor) to examine their case.
On 31 March 2004 the Busko District Municipality refused to give permission for the construction.
On 24 April 2004 the applicants filed an appeal with the Świętokrzyski Governor against the decision of 31 March 2004.
On 17 May 2004 the applicants withdrew their appeal. In consequence on 26 May 2004 the Świętokrzyski Governor discontinued the appeal proceedings.
B.  Relevant domestic law and practice
1.  Inactivity of administrative authorities
For a presentation of the relevant domestic law see the cases of Kaniewski v. Poland, no. 38049/02, 8 February 2006, and Koss v. Poland, no. 52495/99, 28 March 2006.
2.  Length of proceedings
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII; and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
COMPLAINT
The applicants complained that the length of the administrative proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention.
THE LAW
The applicants’ complaint relates to the length of the proceedings, which began on 22 June 1998 and ended on 26 May 2004. They therefore lasted some five years and eleven months for three levels of jurisdiction.
According to the applicants, the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government raised a preliminary objection that the applicants had not exhausted domestic remedies available to them under Polish law, as required by Article 35 § 1 of the Convention. They maintained that from 17 September 2004, the date of entry into force of the 2004 Act, the applicants had a possibility of seeking compensation for the damage resulting from the excessive length of proceedings before Polish courts, under section 16 of the 2004 Act read in conjunction with Article 417 of the Civil Code.
The applicants in general terms contested that argument.
The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996‑VI, pp. 2275–76, §§ 51–52).
 The Court notes that the applicants successfully filed a complaint of inactivity on the part of the administrative authorities, alleging that they had not had their case examined within the prescribed time-limits, as provided by Article 37 § 1 of the Code of Administrative Procedure of 1960 (see above). It was decided that their case should be examined within a fixed time‑limit. The relevant order was complied with.
However, the Court also notes that on 18 May 1999 the proceedings in question entered their judicial stage (see above). The Supreme Administrative Court rendered its judgment after some four years, namely on 6 March 2003. The Court thereby observes that in the present case the excessive length occurred essentially before the administrative court, the case having earlier been pending for less than one year before the administrative authorities.
Having regard to the above considerations, the Court accepts the Government’s objection that the applicants had the possibility of making use of the remedy referred to by the Government (see above), which when introduced in 2004 had been specifically designed to remedy excessive length of judicial proceedings. It provided the possibility of seeking damages under Article 417 read in conjunction with Article 442 of the Civil Code for the protracted length of judicial proceedings which had terminated less than three years before 17 September 2004, the date on which the 2004 Act entered into force (see Ratajczyk, cited above; Barszcz v. Poland, no. 71152/01, 30 May 2006). The Court notes that the proceedings before the Supreme Administrative Court came to an end on 6 March 2003. Thus, on 17 September 2004, when the 2004 Act came into force, the three-year prescription period provided for in Article 417 of the Civil Code had not yet elapsed and the applicants could have had recourse to the remedy available under section 16 of the 2004 Act.
Accordingly, the Court considers that the applicants failed to exhaust domestic remedies in respect of the judicial stage of the administrative proceedings, the excessive length of which represented the essence of their complaint and therefore their application must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
	Fatoş Aracı	Nicolas Bratza
	Deputy Registrar	President