- Judgment date: 2009-09-15
- Communication date: 2016-09-19
- Application number(s): 32992/13
- Country: RUS
- Relevant ECHR article(s): 3, 5, 5-1, 5-3, 6, 6-2
Violation of Article 6 - Right to a fair trial
- Result: Violation SEE FINAL JUDGMENT
- Probability: 0.802774
- Prediction: Violation
Communication text used for prediction
The applicant, Mr Aleksey Sergeyevich Sovetov, is a Russian national who was born in 1975 and is currently detained in Cherepovetsk remand prison no.
The facts of the case, as submitted by the applicant, may be summarised as follows.
Events of 31 October and 1 November 2011 3.
The applicant occupied the post of head of the Cherepovetsk inter‐district department of the Federal Service for Drug Control (“the drugs police”) in the Vologda Region.
Before the events described below regular medical checkups by a doctor, surgeon, neuropathologist, ophthalmologist and otolaryngologist conducted on 1 December 2009, 1 November 2010 and 28 April 2011 had shown that he was healthy.
He successfully participated in sporting competitions in October 2009 (lifting weights of 140 kg) and 2011 (billiards).
On 31 October 2011 the Vologda regional Investigative Committee, assisted by the Vologda regional department of the Federal Security Service (“the FSB”), carried out a search of the offices of the drugs police in connection with a criminal case against one of the applicant’s subordinates and other officers in the department, whose identity had not been established, on suspicion of alleged involvement in the ill-treatment of a detainee and of committing fraud against another detainee.
F., a deputy head of the investigative committee’s division for the investigation of particularly important cases, was in charge of the case.
According to the official record, between 10.50 a.m. and 2.10 p.m. an investigator, G., and two FSB officers carried out a search of the applicant’s office.
Some items, including a green substance and another powdery substance, were seized.
The applicant, who participated in the search, stated that the substances had been planted.
Between 3.10 p.m. and 3.17 p.m. another investigative committee investigator, M., carried out a strip search of the applicant, as ordered by F. Between 3.30 p.m. and 3.38 p.m. the applicant’s coat was seized as evidence.
All those investigative actions were carried out in the applicant’s office.
According to statements by the investigator G. and an FSB officer, K., after the investigative actions in the offices of the drugs police the applicant was handed over to the FSB officers for transfer to their building for further investigative measures.
According to K., at the FSB office the applicant was asked by the investigative committee officials to stay for further investigative actions which required his personal participation.
According to statements by Officers V.K.
and O. of the FSB, who participated in the search of the drugs police offices and then took the applicant to the FSB building, they handcuffed the applicant during his transfer.
That action had been in accordance with the law regulating the use of handcuffs on suspects because a substance resembling drugs had been found in the applicant’s office, which had given grounds to suspect him of a criminal offence.
The applicant might also have resisted arrest or tried to escape.
In the FSB building K. allegedly instructed one of the officers on duty not to register the applicant’s arrival in the official records.
He also allegedly told officers in balaclava masks to kick the applicant so that he would “start talking”.
They started beating, kicking, insulting and threatening him.
Between 4.26 p.m. and 4.57 p.m. the investigator F. questioned the applicant as a witness in the offices of the FSB.
She issued an order for a search of the applicant’s flat as a matter of urgency.
Her order stated that according to expert report no.
1585 of 31 October 2011 the green substance found in the applicant’s office was marijuana.
Another powdery substance had also been found there and there were sufficient reasons to believe that instruments of a crime and items of evidentiary value for the criminal case could be found in the applicant’s flat, which therefore needed to be searched without delay.
After his questioning by F. the applicant’s ill-treatment allegedly continued.
Investigator M. allegedly struck him twice in the area of the left kidney.
FSB officers allegedly kicked him on his legs.
G., another suspect in the case, witnessed them kicking the applicant and later confirmed that in his statements.
The applicant was interviewed until 3 a.m. in various FSB offices, beaten and threatened in order to force him to give incriminating testimony against himself and his colleagues.
Between 3.17 a.m. and 4.50 a.m. on 1 November 2011 an FSB investigator B. and three FSB officers carried out a search of the applicant’s flat in the presence of the applicant.
His wife and daughter, a minor, were present.
According to statements by V.K.
and O., who took the applicant to his home for the search, the applicant was handcuffed during his transfer and the search.
Afterwards he was taken back to the FSB office, where his ill‐treatment allegedly continued.
According to statements by K. and other FSB officers, talks (беседы) were conducted with the applicant until 11 a.m. on 1 November 2011.
On 1 November 2011 an examination by an expert identified the powdery substance seized in the applicant’s office as containing methylenedioxypyrovalerone.
At 11 a.m. a criminal case against the applicant was opened in connection with the illicit procurement and storage of drugs in large quantities, punishable under Article 228 § 1 of the Criminal Code.
At 12.10 p.m. a record of the applicant’s arrest was drawn up.
The record stated that M., the investigator with the investigative committee, had placed the applicant under arrest as a suspect at 12.10 p.m. on 1 November 2011 in the offices of the FSB Vologda regional department.
The applicant made an entry in the record that he had actually been detained since 8.30 a.m. on 31 October 2011, had been deprived of food and sleep, and had not been involved in the imputed crime.
Between 1.10 p.m. and 1.50 p.m. the applicant was questioned as a suspect by M. in the FSB’s office.
From 3.00 p.m. to 4.15 p.m. he participated in a search of his car.
After the search he was taken back to the FSB’s office.
FSB officers D., K., P., M. and two others in balaclava masks allegedly started kicking him on his legs and then tied a rope around his head and tightened it, pressing on his eyes.
Over the following five hours they allegedly twisted the applicant’s hands, tightened the rope around his head, kicked him and struck him on the head while wearing gloves, demanding that he make self-incriminating statements.
The applicant allegedly fainted several times and twice vomited.
They allegedly tried to inject him with a drug.
He resisted, keeping his hands underneath him while lying on the floor.
He felt a sharp pain in the shoulder and fainted.
He regained consciousness while being dragged across the floor by the rope that was around his head.
At about 9 p.m. the FSB officers took him to a temporary detention facility (IVS) in Vologda, striking him on the head on the way.
The applicant was placed in the IVS at 11.45 p.m. B.
Subsequent events and the applicant’s complaints 18.
The first time he was given food after the search of his office was the morning of 2 November 2011.
He had also allegedly been deprived of water and sleep for all that time.
According to a medical assistant at the IVS, when examined on 2 November 2011 the applicant complained about a pain in his chest.
According to a record of the applicant’s examination by a doctor at a drug rehabilitation clinic on the same day, the applicant complained about a pain in the joint of his right shoulder.
The applicant had allegedly been insulted, had his arms twisted and had been struck on the way to the clinic.
At a hearing at the Vologda Town Court on 3 November 2011 to examine the investigator’s request to detain the applicant on remand, the applicant, who was assisted by a lawyer, complained that he had actually been detained since 8.30 a.m. on 31 October 2011, and that he had been deprived of food for two days.
His complaint was not dealt with in the decision delivered by the Town Court on the above date.
On 5 November 2011 the Town Court held another hearing in the presence of the applicant and his lawyer.
It ordered that the applicant be detained on remand.
On the same date the applicant was placed in Vologda remand prison (SIZO) no.
A medical examination was not carried out on his arrival.
He was placed in solitary confinement for two weeks.
He allegedly suffered from a strong pain in his shoulder.
His requests for medical assistance were disregarded.
On 1 December 2011 a medical examination was carried out for the first time (the belated medical examination was confirmed in a letter of 20 February 2013 from the Vologda regional department of the Federal Prison Service).
No injuries or complaints were noted, but according to the applicant the medical staff refused to record them.
On 26 December 2011 the applicant lodged a criminal complaint with the prosecutor’s office of the Vologda Region.
He complained that he had been unlawfully deprived of his liberty on 31 October and 1 November 2011, had suffered deprivation of water, food and sleep and physical ill‐treatment.
His complaint was dealt with by the military investigative division of the Vologda Garrison.
On 29 December 2011 the Vologda Town Court extended the applicant’s detention on remand.
The applicant reiterated his complaint that he had been unlawfully detained on 31 October and 1 November 2011.
He also complained that he had been subjected to violence by FSB officers.
Relying on the official record of his arrest, the Town Court held that the applicant had been taken before an investigator, who had been authorised by law to detain him as a suspect, on 1 November 2011, and that the applicant’s participation in investigative actions on the night of 31 October to 1 November 2011 could not be considered as actual detention.
The applicant’s complaint concerning his alleged ill-treatment was not examined.
On 19 January 2012 the Town Court’s decision of 29 December 2011 was upheld on appeal by the Vologda Regional Court.
According to the medical records of SIZO no.2, on 13 January 2012 the applicant complained about a pain in his right shoulder joint.
He was told he needed an X-ray and a consultation with a surgeon owing to suspected strained or torn ligaments in the right shoulder.
On 16 January 2012 an X-ray was performed.
No traumatic changes of the bones of the right shoulder joint were detected.
On 23 January 2012 the applicant was examined by a surgeon who noted that the applicant complained about a sharp pain in the front part of the right shoulder joint.
The surgeon detected a small protrusion of muscle fibres at that place, diagnosed the applicant as suffering from the consequences of a strain or tear of the ligaments of the right shoulder joint and recommended an examination by a traumatology doctor.
As the remand prison did not provide such an examination, the applicant’s brother agreed with a specialist from Vologda regional hospital no.
1, L., and on 5 March 2012 he took him to the remand prison so that he could examine the applicant.
It appears from the handwritten record of the visit that the applicant said that the trauma of the right shoulder had been caused on 1 November 2011.
The traumatology doctor found an old injury of the ligaments in the applicant’s right shoulder, diagnosed him with subacute post-traumatic periarthritis, and prescribed treatment.
On 8 June 2012 the traumatology doctor was interviewed during an inquiry into the applicant’s complaints.
According to a record of the interview prepared by an investigator, K., of the investigative committee, the doctor stated that he had diagnosed the applicant with an old injury of the right shoulder joint, for which no surgery had been required, and that it had been impossible to determine when the injury had happened.
A person with such an injury usually had a lot of pain and needed to consult a doctor in the first few days after receiving it.
The traumatology doctor also stated that a partially torn chest muscle which the applicant had also had was clearly old and could have been received any time between six to eight months and several years beforehand.
It was a type of injury that was common among athletes who lifted weights or did arm wrestling and could not be received as a result of lifting one’s hands behind one’s back.
The applicant did not receive the treatment prescribed by the traumatology doctor until his family provided him with the necessary medication.
It was used for inpatient treatment from 21 to 30 March 2012, and his subsequent outpatient treatment.
The applicant’s criminal complaint was dismissed as unfounded and investigators with the military investigative division of the Vologda Garrison issued refusals to open a criminal case.
Those refusals were set aside as unlawful and unsubstantiated by the investigators’ superiors.
In particular, in a decision of 30 November 2012, the head of the military investigative division of the Vologda Garrison annulled a decision of 3 September 2012, noting shortcomings in the pre-investigation phase.
It was not before 19 December 2012 that the investigator in charge of the inquiry into the applicant’s complaints ordered a forensic medical examination, which was carried out without the applicant being seen in person.
On 27 December 2012 experts at the Ivanovo centre for forensic medical and criminal expert examinations of the Ministry of Defence issued report no.
219/12, which was based on documents submitted by the investigator (the applicant’s medical records from the detention facilities, statements by FSB officers, the traumatology doctor and other people collected in the course of the inquiry, and two witness statements).
The experts concluded that there was no causal connection between the applicant’s health issues and the injury to his right shoulder or with his alleged ill-treatment, and that the applicant could have received the shoulder injury in a weightlifting competition in 2009.
The shoulder injury was qualified as moderately harmful to his health.
Subsequently investigators issued new refusals to institute criminal proceedings linked to the applicant’s alleged deprivation of liberty and ill‐treatment.
All those decisions were annulled, apart from the last one, on 21 February 2013, which was found lawful by the courts in a review under Article 125 of the Code of Criminal Procedure (a decision by the Vologda Garrison Military Court of 11 April 2013, upheld by the Leningrad Circuit Military Court on 20 June 2013).
The courts considered that the investigator’s decision had been based on a comprehensive and thorough investigation.
As regards the alleged unlawful detention, the courts held that the applicant had participated in investigative actions and after the search in his home had stayed at the FSB building because he had wished to do so.
A total of eight refusals to institute criminal proceedings linked to the applicant’s complaints were issued.
The investigators established that between 8.35 a.m. on 31 October 2011 and 12.20 p.m. on 1 November 2011 the applicant had been in the offices of the drugs police and the FSB in order to participate in investigative actions on the instructions of his superior and because his personal participation had been required.
The investigators found that that situation had been lawful, as was the applicant’s handcuffing during his transfer from the drugs police building to the FSB building on 31 October 2011.
The latter finding was made on the basis of statements by the FSB officers K. and O.
They stated that they had handcuffed the applicant in accordance with regulations governing the use of handcuffs on suspects as there had been grounds to suspect the applicant of a criminal offence in view of the fact that substances resembling drugs had been seized in his office and because he had behaved aggressively.
He had also been well developed physically and could have resisted arrest or tried to escape.
The same officers also stated that they had handcuffed the applicant when he had been taken to his flat for the search.
In dismissing as unsubstantiated the applicant’s allegations that he had been deprived of water, food and sleep and had suffered physical ill-treatment that had led to the shoulder injury, investigators relied on statements given by the investigator Ms G. and FSB officers, who denied any wrongdoing and explained that that they had had a talk with the applicant at the FSB building.
A statement by Mr G. that he had seen the applicant being kicked by FSB officers at the FSB building on 31 October 2011 was rejected as unreliable because G. was the applicant’s co-accused and former subordinate.
The investigators also relied on the forensic medical experts’ report of 27 December 2012.
Based on explanations by the applicant’s former colleagues that the applicant had torn his chest muscle when lifting weights at a competition in May 2009, the investigators concluded that the shoulder injury could have been sustained on that occasion.
The applicant brought civil proceedings for damages, in particular on account of his alleged unlawful detention and ill-treatment.
On 4 June 2014 the Vologda Town Court dismissed his claim, relying, in respect of the alleged physical ill-treatment, on the investigator’s refusal of 15 May 2012 to institute criminal proceedings and the forensic medical report of 27 December 2012.
On 2 September 2014 the Vologda Regional Court upheld the judgment on appeal.
The Vologda Regional Court and the Supreme Court examined his cassation appeals and refused, on 15 December 2014 and 2 February 2015, respectively, to refer the case for consideration by those courts.
C. Conditions of the applicant’s detention on remand 32.
Since August 2013 the applicant and eleven other defendants have been standing trial at the Cherepovetsk Town Court on multiple charges of abuse of office and drug-related offences.
The applicant has been held continuously in detention on remand owing to the gravity of the charges, and the risks of his absconding, reoffending or interfering with the course of justice.
Some court decisions referred to the applicant’s status as a former police officer familiar with the methods of the investigation of crimes.
According to the applicant, the courts did not rely on any specific facts to justify his continued detention, and had since the beginning of the trial issued decisions about the group as a whole without examining his individual situation.
The applicant reiterated his complaints concerning his unlawful detention on 31 October and 1 November 2011 and of ill‐treatment at court hearings that extended his detention on remand throughout 2012-2015.
Between 6 April 2012 and 30 April 2013 the applicant was held in solitary confinement in cell no.
27 at SIZO no.2 measuring 12 sq.
m. Two daylight lamps with two bulbs each were left on around the clock.
The cell had no night lamp.
The applicant’s sleep was disturbed, he had headaches and pains in his eyes, his eyesight deteriorated and he had nervous breakdowns.
His complaints to the administration of the remand prison were ignored.
Later, until 19 August 2013, the applicant shared his cell with three other inmates.
Two of them confirmed his description of the conditions of detention in the cell (statements by Z. of 19 August 2013 and by D. of 22 September 2013).
For twenty days, from 14 September 2015, the applicant was held in solitary confinement again, in cell no.
212 at SIZO no.3.
It had a toilet that was not separated from the rest of the cell, one 1 sq.
m of free space and was permanently monitored by a closed-circuit camera.
On the days of hearings at the Cherepovetsk Town Court (more than 200 since the beginning of the trial) the applicant has been transported from his detention facility to the court handcuffed in a prison van in a metal compartment measuring no more than 0.4 sq.
m without any ventilation or safety belts.
The journey one way lasts between one to two hours.
At the court, before and after the hearings and during breaks, that is two to three hours per day on average, he has been held in cells in the basement measuring 1.5-1.7 sq.
m with up to three or more people.
Those cells are filthy, poorly lit, cold in winter and have no ventilation for fresh air.
He appears in the courtroom in a metal cage, although some of his co‐defendants sit outside the cage.
He has to sort through documents needed for his defence on the floor of the cage, in which four people are detained at a time.
There are no daily walks on the days when there are hearings.
Since the beginning of the trial in 2013 the applicant has been subjected to such conditions on more than 200 occasions.
The applicant complains that he was unlawfully detained on 31 October and 1 November 2011, in breach of Article 5 § 1 of the Convention; that he was deprived of water, food and sleep during that time, that he was physically ill‐treated, and that he did not receive medical treatment for the injury to his right shoulder that had been inflicted on him on 1 November 2011, in violation of Article 3 of the Convention.
He also complains under Articles 3 and 13 of the Convention that no effective investigation of his ill‐treatment was carried out.
The applicant also complains under Article 5 § 3 of the Convention that there has been no justification to keep him in detention on remand since 5 November 2011, and that the conditions of his detention on remand – notably solitary confinement for one year in SIZO no.2 and for twenty days from 14 September 2015 in SIZO no.3; the twenty-four-hour use of daylight lamps in cell no.
27 at SIZO no.2 for almost a year and a half, depriving him of sleep; the conditions of detention in cell no.
212 at SIZO no.3; the conditions on the days of court hearings, in particular the conditions of transportation to and from the courthouse, of detention in the courthouse and his placement in a metal cage in the courtroom – are incompatible with Article 3 of the Convention.
CASE OF GIERMEK AND OTHERS v. POLAND
(Application no. 6669/03)
15 September 2009
This judgment may be subject to editorial revision. In the case of Giermek and Others v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,Lech Garlicki,Ljiljana Mijović,David Thór Björgvinsson,Ján Šikuta,Päivi Hirvelä,Mihai Poalelungi, judges,and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 25 August 2009,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 6669/03) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Polish nationals, Kazimiera Giermek (“the first applicant”), Karol Słomka (“the second applicant”), Jadwiga Gawlik (“the third applicant”) and Emil Żak (“the fourth applicant”), on 13 February 2003. 2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. 3. On 21 May 2007 the President of the Fourth Section of the Court decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The first and second applicants were born in 1939, the third applicant was born in 1934 and the fourth applicant was born in 1938. They all live in Zator, Poland. 5. In 1985 T.P., the applicants’ neighbour started a company producing soft drinks, having received the relevant permits. The company was located at number 8 Żwirki and Wigury Street in Zator (at the end of a cul-de-sac). In 1990 and 1992 respectively T.P. extended his activities to include a wholesale and retail food business. In 1991 he was granted a permit to construct an additional warehouse on his property. The applicants live in houses located on the same street and in the direct vicinity of T.P.’s company. 6. On an unspecified date the applicants and other inhabitants of Żwirki and Wigury Street complained to the Mayor of Zator about the heavy traffic and nuisance caused by the wholesale business of T.P. They submitted that according to the local development plan the area in question was intended to be used for housing to the exclusion of obtrusive businesses. 7. On 23 September 1993 the Mayor of Zator issued a decision banning T.P. from using certain buildings of his company for a wholesale food business on the ground that he had failed to obtain the relevant permits. The second applicant was a party to those proceedings. On 23 November 1993 the Bielsko-Biała Governor dismissed an appeal by T.P. against that decision. T.P. appealed to the Supreme Administrative Court. On 12 January 1994 the Supreme Administrative Court quashed both decisions. 8. On 6 June 1994 the Mayor of Zator required T.P. to obtain various permits. T.P. unsuccessfully appealed against that decision. On 20 June 1996 the Mayor of Zator issued a decision ordering T.P. to stop using the additional warehouse for his wholesale food business. On 21 February 1997 the Bielsko-Biała Governor quashed that decision and remitted the case to the Mayor. 9. On 14 May 1997, in response to the applicants’ complaints, the Mayor of Zator issued a decision concerning the use of property by T.P. It ordered him to cease using the warehouse for a wholesale beer and food business. The Mayor established that T.P. had opened a wholesale business on his property in contravention of the Construction Act (section 71) and the local development plan. He also noted that heavy traffic was generated by T.P.’s company, causing significant nuisance to his neighbours, including the applicants. T.P. appealed. 10. On 15 July 1997 the Bielsko-Biała Governor upheld the Mayor’s decision. T.P. appealed to the Supreme Administrative Court. On 6 October 1999 the Supreme Administrative Court dismissed his appeal. It found that by virtue of the relevant planning permission T.P. was entitled to use the building in question as an additional warehouse for his soft drinks company. However, he had changed the manner of use of the property by setting up a wholesale food business there without obtaining the relevant permissions. Thus, he had clearly breached the Construction Act and the administrative decisions complained of had been correct. 11. Meanwhile, on 7 September 1999 the applicants unsuccessfully complained to the Małopolski Regional Inspector of Construction Supervision about non‐enforcement of the decision. Their further complaints to other authorities were equally unsuccessful. 12. In a letter of 29 October 1999 the Architecture Department of the Małopolski Regional Office informed the second applicant that his complaint was well-founded. The Regional Office observed that the final administrative decision of the Bielsko-Biała Governor of 15 July 1997 had not been enforced and that no administrative enforcement proceedings had been instituted. It further urged the Municipal Council to transmit the case‐file to the Oświęcim District Inspector of Construction Supervision which was the authority competent to enforce the administrative decisions at issue. 13. On 28 January 2000 the first and the fourth applicants and the second applicant’s wife filed with the Cracow Regional Administrative Court (Wojewódzki Sąd Administracyjny) a complaint about the inactivity of the District Inspector of Construction Supervision. They alleged that the District Inspector had failed to enforce the Mayor of Zator’s decision of 14 May 1997. 14. On 31 October 2000 the District Inspector ordered T.P. to pay PLN 5,000 for failure to stop using the auxiliary warehouse for his wholesale business. On 21 June 2002 the Regional Inspector upheld this decision. On 22 July 2002 T.P. appealed to the Supreme Administrative Court. This was dismissed by the court on 25 February 2003. 15. On 9 July 2004 the Cracow Regional Administrative Court held a hearing. The applicants submitted that T.P. had failed to comply with the obligations imposed on him by the administrative authorities. They emphasised that the continued non-enforcement of the administrative decision of 14 May 1997 had had adverse consequences for them. The District Inspector for his part submitted that the inspectorate had undertaken some measures with respect to T.P. 16. The Regional Administrative Court delivered its judgment on the same date and found for the applicants. It ordered the District Inspector of Construction Supervision to issue a decision or undertake other necessary measures with a view to enforcing the Supreme Administrative Court’s judgment of 6 October 1999 within two months from the date on which it received the case-file. 17. In the meantime, on 20 January 2003 the second applicant complained to the Chief Inspector of Construction Supervision that the decision against T.P. had not been enforced. The complaint was transmitted to the Małopolski Regional Inspector of Construction Supervision, who dismissed the complaint on 10 March 2003. The Regional Inspector established that the Oświęcim District Inspector had formally required T.P. to comply with the decision. The inspectorate had instituted administrative enforcement proceedings against T.P. and had imposed a fine on him in order to make him comply with the decision. Lastly, it had requested the Oświęcim Tax Office to enforce the fine imposed on T.P. However, all those measures had been unsuccessful. On 7 March 2003 the District Inspector had issued a substitute enforcement order (wykonanie zastępcze), i.e. an order requiring enforcement of a decision against T.P. by a third party at the former’s expense. 18. On 3 March 2005 the first, second and fourth applicants complained in an application to the Cracow Administrative Court that the District Inspector had failed to enforce the judgment of 6 October 1999. 19. On 5 May 2005 the applicants complained to the Governor of the Małopolski Region about the continued inactivity of the Oświęcim District Inspector with regard to enforcement of the decision of 14 May 1997. 20. On 10 July 2005 the first and second applicants complained to the Cracow Regional Inspector of Construction Supervision about the inactivity of the District Inspector and the continued non-enforcement of the administrative decisions. They demanded that concrete measures be taken. 21. On 27 April 2006 the Regional Inspector instructed the applicants that they should lodge a complaint under Section 154 of the Law on Procedure before the Administrative Courts. On 20 and 23 May 2006 the second and fourth applicants asked the District Inspector to execute the decision of 14 May 1997, notifying him that if he did not do so the applicants would lodge a complaint with an administrative court. 22. On 24 June 2006 the second and fourth applicants again complained to the Governor of the Małopolski Region. They informed him of the fact that part of the escarpment located near the house of one of the applicants had collapsed as a result of the operation of T.P.’s company. 23. The applicants filed numerous complaints with the District Inspector urging him to enforce the administrative decision of 14 May 1997. They objected also to the heavy goods vehicle traffic generated by T.P.’s company in their neighbourhood. 24. It appears, however, that the decision has not yet been enforced. II. RELEVANT DOMESTIC LAW AND PRACTICE
25. The relevant domestic law concerning inactivity on the part of administrative authorities is set out in the Court’s judgments in the cases of Kaniewski v. Poland, no. 38049/02, §§22-28, 8 February 2006; Koss v. Poland, no. 52495/99, §§21-25, 28 March 2006; and Grabiński v. Poland, no. 43702/02, §§60-65, 17 October 2006). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION. 26. The applicants complained of a breach of Article 6 § 1 of the Convention on account of the failure to enforce a final judgment and the length of administrative proceedings. In so far as relevant, Article 6 § 1 reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair... hearing within a reasonable time by [a] ... tribunal...”
27. The Court considers that while both complaints concerned the same factual situation the Convention issues are largely different and require separate consideration. A. The Government’s preliminary objections
28. The Government submitted that the third applicant had not exhausted domestic remedies with respect to her complaints, since she had not formally been a party to any of the national proceedings. 29. The applicants did not address this issue. 30. The Court notes that the third applicant did not participate in any proceedings relating to the enforcement of the decision of 15 July 1997. In these circumstances, the Court considers that the application, in so far as it concerns the third applicant, must be rejected for failure to exhaust domestic remedies, pursuant to Article 35 § 4 of the Convention. 31. The Government maintained that the applicants had failed to lodge a compensation claim with a civil court in order to seek redress for the alleged damage which had resulted from the inactivity of the administrative authorities and courts. They cited Article 417 of the Civil Code. They further alleged that the applicants should have filed an application with the Regional Administrative Court under section 154 of the Law on Procedure before the Administrative Courts. They argued that under these provisions the applicants could have claimed compensation for damage sustained as a result of the non-enforcement of the judgment of 9 July 2004. In addition, the Government argued that from 17 September 2004, the date of entry into force of the 2004 Act, the applicants could have sought compensation for the damage resulting from the excessive length of proceedings before Polish courts, under sections 16 and 18 of the 2004 Act read in conjunction with Article 417 of the Civil Code. Lastly, they claimed that the applicants had failed to appeal against some of the decisions given in their cases. 32. The applicants objected. 33. The Court firstly observes that according to Article 4171 § 3 of the Civil Code no claim for damages resulting from the unreasonable length of administrative proceedings may arise unless it has been formally determined that there has been an unlawful failure to issue an administrative decision within the relevant time-limits. The Court also notes that the examples of domestic case-law furnished by the Government do not constitute evidence of a judicial practice which was sufficiently established to make a claim for compensation based on Article 4171 § 3 of the Civil Code an effective remedy and that the Government have thus failed to substantiate their contention (see Grabiński v. Poland, no. 43702/02, § 74, 17 October 2006). It follows that this part of the Government’s objection must be rejected. 34. The Court further notes that the applicants lodged numerous complaints alleging inactivity on the part of the administrative authorities (see paragraphs 13, 19 and 20). They further filed several complaints about the District Inspector’s failure to enforce the decision in question (see paragraphs 11, 17, 18 and 23). They also filed a complaint with the District Inspector asking him to execute the decision and putting him on notice of their intention of filing a complaint with the administrative court, if he failed to do so, under Article 154 of the Law on Procedure before the Administrative Courts (see paragraph 23). However, these complaints were to no avail. 35. The Court reiterates that, although Article 35 § 1 requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, it does not require that, in cases where the national law provides for several parallel remedies in various branches of law, the person concerned, after an attempt to obtain redress through one such remedy, must necessarily try all other means (see, Kaniewski, cited above, § 37). The Court considers therefore that, having availed themselves of some of the possibilities available to them within the administrative procedure system, the applicants were not required to embark on another attempt to obtain redress by bringing civil proceedings or another form of administrative action for compensation. 36. For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. The Court further notes that this part of the application is not manifestly ill‐founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. The alleged failure to enforce a final judgment
37. The Court reiterates that a delay in the execution of a judgment may be justified in particular circumstances. But the delay may not be such as to impair the essence of the right protected under Article 6 § 1 (see Burdov v. Russia, no. 59498/00, § 35, ECHR 2002-III). 38. The Government refrained from submitting observations on the merits of the application. They nevertheless stressed, that the domestic authorities undertook numerous measures in order to enforce the decision of the Zator Mayor of 14 May 1997. 39. The Court observes that the Cracow Regional Administrative Court’s judgment of 9 July 2004 imposed on the District Inspector of Construction Supervision the duty to issue a decision or undertake other necessary measures with a view to enforcing the Supreme Administrative Court’s judgment of 6 October 1999 within two months. 40. The Court further observes that the judgment of 9 July 2004 has not been enforced nearly five years after its delivery. 41. Having regard to the above, the Court considers that the facts of the case do not demonstrate any justification for the failure to enforce the judgment of 9 July 2004. 42. There has therefore been a violation of Article 6 § 1 of the Convention in that respect. C. The length of the proceedings
43. 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, 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...”
44. The Government refrained from submitting observations on the merits of the application. 45. The period to be taken into consideration began on 6 October 1999 and has not yet ended. It has thus already lasted nearly 10 years. 46. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 47. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above). 48. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 49. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 50. There has accordingly been a breach of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
51. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
52. The applicants claimed 16,000 Polish zlotys each in respect of non‐pecuniary damage. 53. The Government contested these claims. 54. The Court considers that the applicants must have sustained non‐pecuniary damage. Ruling on an equitable basis, it awards EUR 3,900 each to the first, second and fourth applicants. B. Costs and expenses
55. The applicants did not make any claim for costs and expenses. C. Default interest
56. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the first, second and fourth applicants’ complaints admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the non-enforcement of a final judgment;
3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the administrative proceedings;
(a) that the respondent State is to pay the first, second and fourth applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,900 (three thousand nine hundred euros) each in respect of non‐pecuniary damage to be converted into Polish Zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 15 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıNicolas BratzaDeputy RegistrarPresident