CASE OF MATCZYŃSKI v. POLAND
(Application no. 32794/07)
15 December 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Matczyński v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
András Sajó, President,
Vincent A. De Gaetano,
Boštjan M. Zupančič,
Gabriele Kucsko-Stadlmayer, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 17 November 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 32794/07) 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 a Polish national, Mr Zbigniew Matczyński (“the applicant”), on 25 July 2007.
2. The applicant was represented by Mr J. Paśko, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agents, initially by Mr J. Wołąsiewicz and subsequently by Ms. J. Chrzanowska of the Ministry of Foreign Affairs.
3. The applicant complained under Article 1 of Protocol No. 1 to the Convention that the restrictions imposed on the exercise of his property rights breached his right to the peaceful enjoyment of his possessions.
4. On 17 March 2010 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1951 and lives in Suwałki.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
A. Background information
7. On 24 June 1975 the applicant bought his first agricultural property of 4.79 hectares consisting of 6 plots situated in Gawrych Ruda, in the municipality of Suwałki, between lakes Długie, Okrągłe and Wigry. Three wooden buildings - a house, a barn and a pigsty - were situated on one of the plots, no. 31/1.
8. On 12 January 1976 the Wigry Landscape Park (Park Krajobrazowy) was created.
9. On 9 October 1979 the applicant bought further property extending over 7.5 hectares in Gawrych Ruda, consisting of three plots classified as farmland, nos. 30/3, 30/4 and 30/5. There were no buildings situated on these plots.
10. On 27 June 1988 an ordinance by the Council of Ministers created the Wigry National Park. The applicant’s land was incorporated into the area covered by the park.
11. The applicant submitted that he had not been informed about this incorporation at the time and had not had any means of challenging this measure, either immediately following the action or after 10 October 1994, when Protocol No. 1 to the Convention entered into force in respect of Poland.
12. The applicant divided his land into 64 smaller plots, sold some of them to third parties and gave some of them to various members of his family. He currently owns plots Nos. 142/9, 30/12, 30/13, 30/14, 30/16, 30/17, 30/18, 30/19, 30/20, 30/23, 30/24, 30/25, 30/26, 30/27, 30/28, 30/29, 30/30, 30/31, 30/33, 30/34, 30/36 and 31/36.
13. In 1994 a new local land development plan was adopted by the local municipality. Under this plan the applicant’s plots could not be used for construction purposes.
14. On 21 September 1999 the Director of the Park informed the applicant that his property was located in the zone of the Lakes Wigry and Długie in the Wigry National Park and that the local development plan prohibited any construction for purposes other than maintaining the water reserves of harbours and beaches.
15. On 19 October 1999 the Director of the Park responded to a proposal from the applicant to sell his properties in Gawrych Ruda, comprising a total surface area of 123,300 square metres, to the Park. The Director asked the applicant to reassess the price, arguing that the proposed price had been based on the assumption that the plots concerned would be suitable for construction purposes, whereas they in fact consisted exclusively of forest and farmland. The applicant was also informed that, since his plots were situated between two lakes, they fell within the protection zone which extended 200 metres out from the shore of each lake and within which no construction was allowed.
16. The applicant submitted that from 1999 to 2004 four dwellings had been built on plots in the immediate vicinity of his land. The Government submitted that the Director of the Wigry National Park had given consent only with regard to the expansion of existing dwellings (supplementation of the existing farm buildings).
17. In 1999 and 2000 the applicant divided plot No. 31/1 on which the farm dwelling (siedlisko) was located and sold it to two third parties. The new owners requested and were granted permits to develop the buildings which already existed on the acquired property.
18. On 30 December 2003 the local land development plan adopted in 1994 expired.
B. The applicant’s attempts to obtain compensation following the adoption of the 1994 local land development plan
19. On 25 January 2003 the applicant asked the Mayor of Suwałki to inform him of the designation of his property according to the 1994 local land development plan.
20. On 20 February 2003 the Mayor informed the applicant that his land was situated within the limits of the Wigry National Park, falling partly within the lake protection zone and that there was no provision for construction thereon. According to the local land development plan, the applicant’s property consisted of forest area and farmland on which further afforestation was recommended.
21. On 16 February 2003 the applicant asked the Mayor of Suwałki to pay him compensation amounting to 149,040 Polish zlotys (PLN) for amendments made to the local land development plan which had excluded the possibility of any construction on his property.
22. On 7 March 2003 the Mayor replied that the applicant’s request was ill-founded because the plan in question, which had been adopted by resolution of the Suwałki Municipal Council on 10 November 1994, had not changed the designation of the applicant’s property. The previous binding development plan did not provide for any construction on the applicant’s land, which was situated on agricultural areas with recommended afforestation.
C. The applicant’s attempts to obtain a preliminary construction permit
1. As regards plots nos. 30/17 and 30/19
23. On 21 May 2002 the applicant requested that a preliminary construction permit (warunki zabudowy i zagospodarowania terenu) be granted in respect of plots nos. 30/17 and 30/19.
24. On 24 October 2002 the Mayor of Suwałki refused to grant the permit requested. It was found that the planned development, consisting of the construction of a house and an outbuilding, would have been situated too close to the lake shore, in an area in which no construction was allowed according to local land development plan. Moreover, the Director of the Wigry National Park had voiced a negative opinion as regards the planned development.
25. The applicant appealed to the Suwałki Self-Government Board of Appeal (Samorządowe Kolegium Odwoławcze). He complained, among other things, that he had been treated in a discriminatory manner because owners of the adjacent plots had obtained building permits and had been able to develop their land.
26. On 20 December 2002 the Board upheld the challenged decision. The Board confirmed that the development was inadmissible taking into consideration the provisions of the 1994 local land development plan which expressly prohibited construction of any new buildings in the area concerned. As regards the allegedly discriminatory treatment, the Board found that the owners of some plots situated in the neighbourhood had indeed obtained building permits. However, some buildings had previously existed on their property, so the permits relied on by the applicant were not ones that concerned new constructions. The Board did not find any discriminatory treatment because the applicant’s situation had been legally and factually different from that of his neighbours. As regards the two building permits granted to the other persons living in the vicinity, the Board further noted that proceedings had been instituted as a matter of course to declare the respective decisions null and void.
27. The applicant lodged a complaint against this decision with the Supreme Administrative Court (Naczelny Sąd Administracyjny).
28. On 17 April 2003 the Supreme Administrative Court dismissed the applicant’s complaint. The Court endorsed the reasoning of the Self-Government Board of Appeal’s decision and found no breach of law in the administrative proceedings complained of.
2. As regards plots nos. 30/12, 30/13, 30/16, 30/26 and 30/29
29. In January 2003 the applicant submitted four applications requesting that the municipality issue preliminary construction permits with regard to plots nos. 30/12, 30/13, 30/16, 30/26 and 30/29. On 10 February 2003 the Mayor of Suwałki ordered the applicant to rectify some shortcomings in his applications. The applicant failed to do so and, consequently, they were not processed.
3. As regards plots nos. 30/12, 30/13 and 30/17
30. In February 2004 the applicant requested that the municipality issue preliminary construction permits in respect of plots nos. 30/12, 30/13 and 30/17. The applicant sought permission to develop his property by constructing a new residential building, an outbuilding, a septic tank and a well, with access to public road no. 142.
31. The municipality invited the Park Director to state his position with regard to the applicant’s request. The Director declined to give his consent to the applicant’s project.
32. The applicant appealed to the Environment Minister (Minister Środowiska), who quashed the decision and ordered that the case be re-examined. It was noted that the contested decision had been based on the Conservation of Nature Act of 2004, while it should have been based on the earlier Act of 1991.
33. On 14 February 2005 the Director again refused to give his consent to the applicant’s request. The Director emphasised the historical and landscape values of the area in question and was of the opinion that any construction there would have a negative influence on the unique values on the landscape which the National Park had to protect.
34. On 18 February 2005 the Director rectified the basis for his previous decision.
35. On 22 February 2005 the applicant appealed to the Environment Minister.
36. On 9 September 2005 the Environment Minister upheld the challenged decision.
37. The applicant lodged an appeal against this decision with the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny).
38. On 9 May 2006 the Warsaw Regional Administrative Court gave judgment, quashing both the challenged decision and the preceding decision of 14 February 2005, finding that the administrative authorities concerned had relied on the wrong legal basis. The Court went on to say that the first-instance decision had not been consistent with the second-instance decision. The first refused the applicant permission because the land in question had not been developed and “had never been intended for construction purposes” and the second contained in its reasoning the statement that “there were already other buildings in the vicinity, which did not justify granting further construction permits”.
39. On 3 September 2006 an inspection of the plots 30/12, 30/13 and 30/17 took place.
40. On 28 September 2006 the Director of the Wigry National Park again refused to give his consent to the planned development. He considered that the planned construction failed to fulfil at least one of the requirements laid down in Section 36 of the 1991 Act on Conservation of Nature, namely “it was not consistent with the aims of the Park” (nie służy celom parku), because of its commercial purpose, amongst other things, given that the applicant was intending to run a guesthouse there. The Director admitted that there were buildings in the close vicinity of the applicant’s property and that they had recently been developed. However, the applicant intended to build on previously undeveloped land some 500 metres wide which, in the Director’s view, would negatively affect the landscape and the lakeshore.
41. The applicant appealed to the Environment Minister.
42. On 29 September 2006 a new local development plan was adopted, which came into force on 30 November 2006. According to the plan, no construction of any buildings on the applicant’s property was allowed.
43. Additionally, on 25 October 2006 the Environment Minister replied to the parliamentary query (interpelacja poselska) made on behalf of the applicant by J.Z., a member of the Polish Parliament. The Minister confirmed, among other things, that the local land development plan for the Suwałki Municipality, in force before the 1994, had excluded any new construction on the applicant’s plots nos. 30/12, 30/13 and 30/17.
44. On 27 December 2006 the Mayor of Suwałki discontinued the administrative proceedings taking the view that the entry into force of the new local development plan rendered continuation of the proceedings pointless since, even if a decision on the merits were to be given, it would have to be declared ineffectual (stwierdzenie wygaśnięcia decyzji).
D. The applicant’s attempts to challenge the local planning policy guidelines adopted in 2005
45. In the meantime, by resolution of 29 June 2005 - before the local development plan was drawn up - the Municipal Council of the Suwałki Municipality adopted framework local planning policy guidelines (studium kierunków i uwarunkowań zagospodarowania przestrzennego gminy) which provided that the plots belonging to the applicant were to become forest land and that no construction could be carried out on them.
46. On 22 November 2005 the applicant requested that the municipality rectify a breach of legal order in so far as the guidelines had reflected the National Park’s Director’s position that a ban on all construction projects should be imposed on his plot. He submitted that this measure amounted to de facto expropriation without any entitlement to compensation and consequently breached the Constitution in so far as the latter guarantees the right to the peaceful enjoyment of one’s possessions.
47. As the municipality refused to grant his request, he submitted a complaint to the Regional Administrative Court in Białystok, contesting the lawfulness of the local planning policy guidelines. He argued that the guidelines directly affected his situation. Not only had they made it impossible for him to pursue any construction projects, they also seriously restricted his ownership rights to such an extent that they became illusory. The guidelines inflicted a serious disadvantage on him in that he was unable to build a shed and had to rent storage space from his neighbours. The restrictions did not correspond to any pressing social need as his farm was not located in virgin territory. There were six farms in the vicinity, all of them with dwellings and sheds, the land was being used for agricultural purposes, there was a road and a power supply, and the installation of a sewage system was planned in the future.
48. By a judgment of 6 July 2006 the Białystok Regional Administrative Court dismissed his appeal. The court first addressed the municipality’s argument that the policy guidelines were not an individual administrative measure addressed to a particular individual, and capable of affecting his legal interests, and which therefore could not be challenged before an administrative court. The court found that, despite being essentially a policy instrument addressed primarily to other municipal bodies and guiding them in the implementation of local planning policy, they affected the applicant’s legal situation to a degree sufficient to hold that he had a legal interest in challenging their lawfulness in judicial proceedings. This was so because the adoption of such guidelines would necessarily influence the outcome of future proceedings in which individuals might seek the adoption of measures falling within the scope of the local planning policy.
49. The court further stated that the municipality’s authority to impose on individuals restrictions regarding the exercise of their property rights was determined by the applicable laws, including those regulating environmental protection. This authority was not absolute, however, as the municipality was also obliged to respect the public interest, to weigh it against the relevant private interests in the process of land planning and development, to act rationally and to respect the principle of proportionality.
50. In the present case, the Law on Nature Conservation of 2004 provided for an obligation for the municipality - when adopting the guidelines - to take due note of the position of the Director of the National Park which, in so far as it concerned plots of land situated within the limits of national parks and their nearest neighbourhood (otulina), was binding on the municipality.
51. The court noted that the applicant had never had a right to develop his property, meaning that the adoption of the framework local planning policy guidelines had not deprived him of any rights. The plan adopted in 1994 did not provide for the applicant’s land to be used for construction purposes. It only provided for the owners to maintain their buildings in good technical condition.
52. In the present case the restrictions imposed on the applicant were in compliance with the applicable laws and did not breach the applicant’s individual rights. In so far as he had referred to construction projects on neighbouring plots, this issue did not fall within the ambit of the present case, in which only the lawfulness of the measures imposed on him could be examined.
53. The applicant lodged a cassation against this judgment with the Supreme Administrative Court. He essentially argued that the measures complained of were in breach of Article 64 § 3 of the Constitution (see paragraph 59 below) and that they amounted to an excessive restriction of his ownership rights.
54. On 2 February 2007 the Supreme Administrative Court dismissed his cassation appeal. Firstly it held that the lower court’s view that the municipality was obliged to ascertain the Director’s position, and was bound by it, was correct.
55. It further noted that the applicant had erred in arguing that the lower court had failed to apply Article 64 § 3 of the Constitution to the circumstances of the case. Even though that court did not expressly refer to this provision, it was apparent from the written grounds of its judgment that it had been taken into consideration. Its conclusion that the municipality, when restricting the exercise of the applicant’s rights, had acted in compliance with the applicable laws, was correct. The manner in which the municipality had exercised its powers did not go beyond the limits defined by the constitutional protection of property. This conclusion was reinforced by the fact that the applicant’s plots were in any event not already subject to construction under the plan adopted in 1994.
The court went on to state:
“However, the court shared the conclusions of the cassation appeal that solutions adopted in the planning policy guidelines are capable of breaching the applicant’s legal interest, given that he had expressed his wish to change the use to which his plots had hitherto been put by pursuing construction projects on them. The fact that under the previous planning instruments concerning his land the applicant was also prevented from building on it can demonstrate only that his legal situation has not changed, but is not tantamount to saying that his interest as an owner has not been breached, given that he cannot bring his projects to fruition.”
56. In so far as the applicant argued that the measure complained of was not justified because a number of dwellings had been constructed on neighbouring plots, the court noted that this objection went to the substance of the position formulated by the Director of the National Park. It could not be examined in the proceedings as they were concerned only with the lawfulness of the framework guidelines.
E. Events after the judgment of the administrative court
57. On 8 April 2009 the applicant wrote to the Director of the National Park, proposing that the situation be settled by way of the sale to the Park of four of his plots (Nos. 30/28, 30/29, 30/30, 30/31) on the Wigry lake shore, for a price to be determined by an expert, in return for the Director’s agreement to change the guidelines.
58. In a letter of 23 April 2009 the Director rejected the applicant’s proposal. He referred to the planning history of his plots and the planning regulation which designated the applicant’s land for afforestation. He reiterated that even on the basis of the 1994 plan, which had expired on 31 December 2003, no construction had been allowed on plots no. 30/12 and 30/13. The situation did not change after adoption of the new plan. As regards the applicant’s proposal to sell some of his plots to the Park, the Director submitted that the Park was generally interested in buying up plots on its territory and did so as long as its financial means allowed. However, he stated that it was not possible to buy the plots in return for amendments to the local development plan.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant provision of the 1997 Constitution
59. Article 64 of the Constitution reads:
“1. Everyone shall have the right to ownership, other property rights and the right of succession.
2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession.
3. The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right.”
B. Provisions concerning the conservation of nature
60. At the time in question, Section 13 (3) of the 1991 Conservation of Nature Act, as amended on 7 December 2000, provided as follows:
“The creation of a national park or the classification as nature reserves of properties which are not owned by the State Treasury shall be carried out with the owner’s consent, and if there is no consent, in the form of expropriation against compensation.”
61. This provision was not applicable to properties which had been included within the National Park areas before the entry into force of the Act, that is to say before 7 December 2000. The owners of properties which were included in the National Parks before that date had no claim to any compensation.
62. On 1 May 2004 a new Act on the Conservation of Nature (“the 2004 Act“) came into force, replacing the 1991 Act.
63. Section 7 of the 2004 Act provides that the creation or expansion of a national park is to be understood to be carried out for reasons of public interest within the meaning of the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami - “the 1997 Land Administration Act”).
64. Pursuant to Article 7 (2) of the 2004 Act, the creation or expansion of a national park on or by land owned by persons or entities other than the State Treasury shall be carried out with the owner’s consent; if no such consent has been given, the provisions of the 1997 Land Administration Act concerning expropriation shall apply.
65. Article 10 (6) of the 2004 Conservation of Nature Act reads:
“Adoption of framework local planning policy guidelines for municipalities, local land development plans for municipalities (...) in their part concerning national parks and their immediate neighbourhoods shall be adopted whilst taking due note of the position formulated by directors of the parks in so far as the provisions of these [plans and guidelines] can negatively affect the conservation of nature within the area of the park.”
66. Article 10 (5) of the 2004 Act provides that the national parks have a pre-emption right in respect of all privately-owned plots situated within their limits.
C. Provisions concerning expropriation and compensation
67. On 1 January 1998 the 1997 Land Administration Act entered into force. Pursuant to section 112 of that Act, expropriation consists in the removal, by means of an administrative decision, of ownership or other rights in rem. Expropriation can be carried out where measures that are in the public interest cannot be achieved without the restriction of these rights and where it is impossible to acquire these rights by means of a civil law contract.
68. Under Section 113 an expropriation may be carried out solely for the benefit of the State Treasury or the local municipality.
69. Under Section 128 § 1 of that Act, expropriation may be carried out against payment of compensation corresponding to the value of the property right concerned. Under section 130 § 1 of that Act, the amount of compensation must be fixed, regard being had to the status and value of the property on the day on which the expropriation decision was given. The value of property shall be estimated on the basis of an opinion prepared by a certified expert.
70. Section 131 of that Act provides that a replacement property can be awarded to the expropriated owner, with his or her agreement.
D. Provisions concerning local planning
71. Section 36 of the Local Planning Act of 7 July 1994 (Ustawa o planowaniu i zagospodarowaniu ptrzestrzennym) provided that if, following adoption of a new local land development plan, use of a property in the manner provided for by a previous plan has become impossible or has been restricted, the owner may claim compensation from the municipality or request that the municipality buy the plot or exchange it for another plot.
72. However, this obligation and the corresponding claims on the part of the owners applied only to plans adopted after the Act had entered into force, that is to say, to plans adopted by local municipalities after 1 January 1995.
73. On 11 July 2003 the new Local Planning Act of 27 March 2003 (Ustawa o planowaniu i zagospodarowaniu ptrzestrzennym) came into force. As regards compensation related to the entry into force of a local land development plan, it contains a similar provision to that in 1994 Act, in Section 36.
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
74. The applicant complained that the restrictions imposed on the exercise of his property rights breached his right to the peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1 to the Convention. This provision reads as follows:
“1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
I. The Court’s jurisdiction ratione temporis
(a) The Government’s submissions
75. The Government submitted that, in accordance with the general rules of international law, the provisions of the Convention and its Protocol did not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention and its Protocols with respect to that Party (see Kadiķis v. Latvia (dec.), no. 47634/99, judgment of 29 June 2000). The Court’s temporal jurisdiction was to be determined in relation to the facts constitutive of the alleged interference. The subsequent alleged failure of remedies aimed at redressing that interference could not bring it within the Court’s temporal jurisdiction (see Bleĉiĉ v. Croatia, no. 59532/00, judgment of 8 March 2006, §77). The Convention did not impose on the Contracting States any specific obligation to provide redress for wrongs or damage caused prior to that date (see Kopecký v. Slovakia [GC], no. 44912/98, § 38, ECHR 2004-IX). Any other approach would undermine both the principle of non-retroactivity in the law of treaties and the fundamental distinction between violation and reparation that underlies the law of State responsibility.
76. In the present case the interference complained of consisted in the applicant’s land being incorporated into the area of the national park in 1988. According to the Government, the applicant complained about a single measure which occurred before 10 October 1994, when Poland ratified Protocol No.1 to the Convention. It must therefore be declared inadmissible on account of lack of temporal jurisdiction on the part of the Court.
(b) The applicant’s submissions
77. The applicant submitted that his complaints concerned primarily the resolution adopted by the Municipal Council of the Suwałki Municipality on 29 June 2005 which contained framework local planning policy guidelines. These guidelines provided that plots belonging to the applicant were to become forest land and that no construction could be carried out on them. Therefore his application was compatible ratione temporis with the Convention.
(c) The third-party intervener’s comments
78. The Helsinki Foundation for Human Rights submitted general comments to the administrative practice of the Polish authorities as regards three issues:
- right to information about the planned public investments potentially affecting private property;
- an individual’s right to participate in local planning proceedings, and
- right to seek compensation for de facto expropriation or in case of various forms of control of use of property.
They referred, in particular, to lack of remedy against the excessive length of compensatory proceedings and to a limited nature of the right to compensation.
(d) The Court’s assessment
79. The Court observes that its jurisdiction ratione temporis covers only the period after the date of ratification of the Convention or its Protocols by the respondent State. From the ratification date onwards, all the State’s alleged acts and omissions must conform to the Convention or its Protocols and subsequent facts fall within the Court’s jurisdiction even where they are merely extensions of an already existing situation (see, for example, Almeida Garrett, Mascarenhas Falcão and Others v. Portugal, nos. 29813/96 and 30229/96, § 43, ECHR 2000-I). Accordingly, the Court is competent to examine the facts of the present case for their compatibility with the Convention only in so far as they occurred after 10 October 1994, the date of ratification of Protocol No. 1 by Poland. It may, however, take account of facts existing prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see Hutten-Czapska v. Poland [GC], no. 35014/97, §§ 147-153, ECHR 2006-...).
80. The Court notes that the applicant’s complaint is not directed against a single measure or decision taken before, or even after, 10 October 1994. Instead, it refers to various events and situations - occurring both before and after that date - which originated in the fact that his land had been incorporated into the area of the Wigry National Park, which was created in 1988. Against the background of various measures adopted before 10 October 1994 whose results continued to affect an applicant’s situation after that date, the Court has already examined the scope of its temporal jurisdiction in the context of cases against Poland concerning various restrictions on the effective enjoyment of an applicant’s right to the peaceful enjoyment of his possessions and found that it had jurisdiction to examine such cases (see, for instance, Hutten-Czapska v. Poland, cited above, §§ 147-153; Tarnawczyk v. Poland, no. 27480/02, §§ 62-66, 7 December 2010; Rosiński v. Poland, no. 17373/02, §§ 42-43, 17 July 2007; Skrzyński v. Poland, no. 38672/02, § 45, 6 September 2007; and Potomska and Potomski v. Poland, no. 33949/05, §§ 38-41, 29 March 2011). The Court finds no reason to reach a different conclusion in the present case.
81. The Government’s plea of inadmissibility on the grounds of lack of jurisdiction ratione temporis must accordingly be rejected.
2. Exhaustion of domestic remedies
(a) The Government’s submissions
82. The Government submitted that the applicant had failed to exhaust the relevant domestic remedies in respect of his complaint. He had had recourse to the remedy provided for under Section 101 of the Self-Government Act 1990 and had appealed to the administrative court against the resolution passed by the local municipality for the adoption of the framework local policy guidelines. However, these guidelines had been merely a policy instrument, addressed primarily to other municipal bodies and designated to guide them in the implementation of the local planning policy. Moreover, the administrative courts had dismissed his complaint, finding that the guidelines complied with the law.
83. The Government also submitted that the applicant should have complained about the resolutions by means of which the local development plans had been adopted, but had failed to do so.
(b) The applicant’s submissions
84. The applicant, as noted above (see paragraph 77) submitted that his complaints concerned primarily the resolution adopted by the Municipal Council of the Suwałki Municipality on 29 June 2005 and the administrative proceedings following his appeal against the guidelines. As regards the exhaustion of domestic remedies, the applicant submitted that he had challenged the guidelines and subsequently lodged his complaint with the Regional Administrative Court. The applicant submitted that, since the guidelines in question constitute the basis for all further documents - including the local development plans and preliminary construction permits, which must remain consistent with the guidelines - by challenging the guidelines he had fulfilled the requirement of exhausting the domestic remedies.
(c) The Court’s assessment
85. The rule requiring exhaustion of domestic remedies contained in Article 35 § 1 of the Convention provides that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the alleged breaches. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, § 65 and Vučković and Others v. Serbia [GC], no. 17153/11, §§ 69-71, 25 March 2014).
The aim of the rule is to afford Contracting States an opportunity to put matters right through their own legal system before having to answer for their acts before an international body. However, 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 recourse should be had to remedies that are inadequate or ineffective (see Egmez v. Turkey no. 30873/96, ECHR 2000-XII, §§ 65 et seq).
86. The Court notes that, in accordance with the domestic procedural provisions, the applicant first urged the Municipality to rectify a breach of legal order in the resolution of 29 June 2005 and subsequently lodged a complaint with the Regional Administrative Court and a cassation appeal with the Supreme Administrative Court (see paragraphs 46, 47 and 54 above). The guidelines constituted the legal basis for both the subsequent local development plans and, consequently, the preliminary construction permits.
87. In the Court’s view the applicant was not required to embark on another set of proceedings before the administrative courts which would have served substantially the same purpose. It is not the Court’s task to assess in the abstract whether further administrative proceedings might have been more appropriate for certain aspects of the applicant’s complaints or whether such proceedings would have offered him better prospects of success. The Court finds that, given the nature of the applicant’s complaints, it cannot be said that he chose an inappropriate remedy.
88. The Court notes further that the applicant was also involved in proceedings whereby he tried to obtain a preliminary construction permit. The proceedings were, however, discontinued after the adoption of the new local development plan (see paragraph 44 above).
Taking into account the above considerations the Court concludes that the Government’s plea of non-exhaustion of domestic remedies must be rejected.
3. Conclusion as regards admissibility
89. The Court notes that the present application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
90. The applicant submitted in general terms that the use of his land had become impossible on the basis of an arbitrary decision taken by a Director of the National Park. He maintained that the prohibition of any construction on his land amounted to a de facto expropriation and that the owners of the adjacent plots had obtained construction permits and had built numerous buildings including guesthouses, thus making the authorities’ arguments regarding the conservation of nature absurd.
91. The Government considered that the interference complained of was lawful, pursued a legitimate aim and was proportionate in the circumstances of the case. They submitted that the right to peaceful enjoyment of possessions was not absolute and that certain restrictions were permissible. The restrictions in the present case were based on the general interest, namely protection of the natural environment. The Government further submitted that the property in question had been classified as “farmland” when the applicant bought it and that it had never been designated for construction purposes, even before the creation of the Wigry National Park and the adoption of the local development plan of 1994. Consequently, the Government invited the Court to find the present application manifestly ill-founded.
2. General principles
92. The Court reiterates that, according to its case-law, Article 1 of Protocol No. 1 comprises three distinct rules. The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The three rules are not, however, ‘distinct’ in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, Depalle v. France [GC], no. 34044/02, § 77, ECHR 2010; Skibińscy v. Poland, no. 52589/99, § 73, 14 November 2006; and Potomska and Potomski v. Poland, cited above, § 61).
3. Whether there was interference with the peaceful enjoyment of possessions
93. The Court must first examine whether there was interference with the peaceful enjoyment of the applicants’ possessions.
94. The Court first notes that the applicant was banned from developing his property by virtue of the local development plan which was in force when he acquired the plots and, subsequently, by the plans of 1994 and 2006, according to which no construction of any buildings on the applicant’s property was allowed. A factor of significant relevance as regards the possibility of developing the property in question was the creation in 1988 of the Wigry National Park.
95. The Court further notes that the development plan of 1994 expired on 31 December 2003 (see paragraph 18 above) and that the currently binding plan entered into force on 30 November 2006 (see paragraph 42 above). It follows that between 31 December 2003 and 30 November 2006 there was no local land development plan in force covering the applicant’s property. At this time the applicant tried to obtain preliminary construction permits for plots no. 30/12, 30/13 and 30/17 (see paragraph 30 above) but was refused. However, the relevant proceedings had to be discontinued because of the entry into force of the new local land development plan (see paragraph 44 above).
96. The Court notes that the adoption of the local land development plans and the inclusion of the applicant’s property into the area of the Wigry National Park did not deprive the applicant of his possessions but subjected the use of those possessions to certain restrictions. The inability to develop his or her own property constitutes a limitation of the rights normally enjoyed by a property owner. The Court is therefore of the view that there was interference with the peaceful enjoyment of the applicant’s possessions. The measures complained of did not amount to expropriation. Likewise, they cannot be regarded as a control of the use of property. Accordingly, the interference falls to be examined under the first sentence of Article 1 of Protocol No. 1.
4. Whether the interference was provided for by law
97. The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of someone’s possessions should be lawful (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II).
98. The Court observes that the applicant’s situation was affected by the Resolution of the Council of Ministers of 27 June 1988 on the creation of the Wigry National Park (see paragraph 10 above) and, with the passage of time, by various local land development plans which were adopted in accordance with the relevant statutory provisions (see paragraphs 13 and 22 above). At the time when there was no local land development plan, the refusals to develop the applicant’s property were based on the relevant provisions of the Act of 16 April 2004 on Conservation of Nature (see paragraphs 31-44 above). The parties did not contest the fact that the interference complained of was lawful and the Court sees no reason to hold otherwise.
5. Whether the interference was in the general interest
99. Any interference with a right of property, irrespective of the rule under which it falls, can be justified only if it serves a legitimate public (or general) interest. The Court reiterates that, because of their direct knowledge of their society and its needs, national authorities are in principle better placed than any international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the preliminary assessment as to the existence of a problem of public concern warranting measures that interfere with the peaceful enjoyment of possessions (see Terazzi S.r.l. v. Italy, no. 27265/95, § 85, 17 October 2002, and Elia S.r.l. v. Italy, no. 37710/97, § 77, ECHR 2001-IX).
100. The Court observes that the applicant’s situation was affected by various measures taken with a view to ensuring that the purposes of the conservation of nature and the establishment of a national park were respected.
101. The Court reiterates that in today’s society the protection of the environment is an increasingly important consideration (see Fredin v. Sweden (no. 1), 18 February 1991, § 48, Series A no. 192, cited in Hamer v. Belgium, no. 21861/03, § 79, ECHR 2007-XIII (extracts); Turgut and Others v. Turkey, no. 1411/03, § 90, 8 July 2008; and Rimer and Others v. Turkey, no. 18257/04, § 38, 10 March 2009). It has become a cause that arouses the constant and sustained interest of the public, and consequently of the public authorities. The Court has stressed this point a number of times with regard to the protection of the countryside and forests (see Turgut and Others, cited above, § 90; Köktepe v. Turkey, no. 35785/03, § 87, 22 July 2008; and Şatır v. Turkey, no. 36192/03, § 33, 10 March 2009) and, more recently, with regard to the protection of the natural state of the seashore, coastal areas and in particular beaches, which are “a public area open to all” (see Depalle v. France, cited above, § 81).
102. The Court therefore considers that the interference pursued a legitimate aim that was in the general interest, namely to promote environmental protection by creating specially protected areas.
6. Proportionality of the interference
103. It therefore remains to be determined whether the measures complained about were proportionate to the aim pursued.
104. According to well-established case-law, the second paragraph of Article 1 of Protocol No.1 is to be read in the light of the principle enunciated in the first sentence. Consequently, any interference must achieve a “fair balance” between the demands of the general interest of the community and the requirement of protecting the individual’s fundamental rights. The search for this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole, and therefore also in the second paragraph thereof: there must be a reasonable relationship of proportionality between the means employed and the aim pursued. In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 75, ECHR 1999-III). The requisite balance will not be achieved if the person concerned has had to bear an individual and excessive burden.
105. The Court has, moreover, often reiterated that regional planning and environmental conservation policies, where the community’s general interest is pre-eminent, confer on the State a margin of appreciation that is greater than when exclusively civil rights are at stake (see, mutatis mutandis, Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 70, ECHR 2004-III; Alatulkkila and Others v. Finland, no. 33538/96, § 67, 28 July 2005; Valico S.r.l. v. Italy (dec.), no. 70074/01, ECHR 2006-III; and Fägerskiöld v. Sweden (dec.), no. 37664/04, 26 February 2008). Nevertheless, in exercising its power of review, the Court must determine whether the requisite balance was maintained in a manner consonant with the applicant’s right to property (see, mutatis mutandis, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 69, Series A no. 52).
106. With reference to the interference with proprietary rights, the State has a wide margin of discretion as to what is “in accordance with the general interest”, particularly where environmental and cultural heritage issues are concerned (see, mutatis mutandis, Beyeler v. Italy [GC], no. 33202/96, § 112, ECHR 2000-I; Kozacıoğlu v. Turkey [GC], no. 2334/03, § 53, 19 February 2009; and Yildiz and Others v. Turkey (dec.), no. 37959/04, 12 January 2010). Property, including privately-owned property, also has a social function which, given the appropriate circumstances, must be included in the equation to determine whether a “fair balance” has been struck between the demands of the general interest of the community and the individual’s fundamental rights. Consideration must be given in particular to the question of whether the applicant, on acquiring the property, knew - or should have reasonably known - about the restrictions on the property, or possible future restrictions (see Allan Jacobsson v. Sweden (no. 1), 25 October 1989, §§ 60-61, Series A no. 163, and Łącz v. Poland (dec.), no. 22665/02, 23 June 2009), the existence of legitimate expectations with respect to the use of the property or acceptance of the risk on purchase (see Fredin v. Sweden (no. 1), 18 February 1991, § 54, Series A no. 192), the extent to which the restriction prevented use of the property (see Katte Klitsche de la Grange v. Italy, 27 October 1994, § 46, Series A no. 293-B, and SCEA Ferme de Fresnoy v. France (dec.), no. 61093/00, ECHR 2005-XIII (extracts)) and the possibility of challenging the need for the restriction (see Phocas v. France, 23 April 1996, § 60, Reports of Judgments and Decisions 1996-II, and Papastavrou and Others v. Greece, no. 46372/99, § 37, ECHR 2003-IV).
107. The Court has already held that it lacks the temporal jurisdiction to examine facts prior to 10 October 1994, when Article 1 of Protocol No. 1 was ratified. It may, however, take account of facts existing prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see paragraphs 75-81 above).
108. Turning to the circumstances of the present case, the Court observes that the applicant bought his first plots in Gawrych Ruda in 1975 and further plots in 1979. The property acquired by the applicant was classified as farmland. In 1976 the Landscape Park was created. In 1988 the Council of Ministers created the Wigry National Park. The corresponding resolution of the Council came into force on 1 January 1989. The applicant’s property was incorporated in the area of the Park, however he was not deprived of his possessions and he retained the property rights to his land. In particular, he was free to divide his property and to dispose of it, which he did on several occasions (see paragraphs 12 and 17 above).
109. The restrictions preventing the development of the property were already in existence when the applicant acquired it. The Court considers that the applicant knew or should have reasonably known that under the local land development plan in force at the time when he bought the land in question, the property was classified as farmland. He thus could not reasonably have expected that he might obtain a permit to develop it, in particular to construct on it, and must already have accepted the risk on purchase. As is apparent from the documents submitted by the applicant, even before the entry into force of the 1994 local land development plan, the previously binding plan for the Suwałki Municipality excluded the possibility of any new construction on the applicant’s plots in the vicinity of the Wigry Lake (see paragraphs 22 and 43 above). The local land development plan of 1994 did not change the designation of the applicant’s property, which was still classified as farmland with recommended afforestation. Moreover, the plan adopted in 2006 included a “prohibition of any construction” on the applicant’s land (see paragraph 42 above). The classification of the applicant’s property has not changed since.
110. On the basis of the information submitted by the parties it is impossible to assess whether the applicant could reasonably have predicted that a national park would be created and that his land would be included therein. However, the Court notes that when the applicant acquired the second part of his property, a landscape park already existed there.
111. As regards the possibility of challenging the necessity of the restriction, the Court notes that there was no procedure available to landowners to challenge the creation of a national park or otherwise make their views and possible objections known to the authorities. The importance of this kind of procedural guarantee of the owners’ rights was later highlighted by the fact that on 7 December 2000 the 1991 Conservation of Nature Act was amended and the authorities were then expressly obliged to seek the consent of owners if they wanted to incorporate their property into the national park (see paragraphs 60 and 61 above). Similar provisions are contained in the currently binding 2004 Conservation of Nature Act (see paragraph 64 above). Nonetheless, these provisions do not extend these procedural rights to owners of land included in parks created prior to their entry into force.
112. Although the applicant had no statutory claim to demand that the Wigry National Park buy his property, the Court notes that the Director of the Park, following the applicant’s proposal, at least twice expressed interest in buying his plots. In his letter of 19 October 1999 the Director drew the applicant’s attention to the fact that the property in question was exclusively farmland or forests and estimated its value at PLN 351,800. The applicant was also informed that he could not demand for the property a price calculated on the basis of land designated for construction purposes (see paragraph 15 above). In 2009 the applicant again offered to sell his property to the Park, apparently in return for certain amendments to the local land development plan. In his letter of 23 April 2009 the Director of the Park expressed an interest in buying the plots but informed the applicant that it was not possible to amend the plan (see paragraph 58 above). The applicant has failed to show that he ever entered into any negotiations with the Park as regards the sale of his land.
113. It is apparent that the restrictions on the development of the applicant’s property were not imposed as a result of the creation of the Wigry National Park but already existed beforehand, on the basis of the previously adopted local land development plan (see paragraph 13 above). The provisions providing compensation for a decrease in the value of a property caused by the adoption of a local land development plan entered into force on 1 January 1995 (see paragraph 72 above). It follows that the applicant could not make use thereof. However, even if these provisions had applied to his situation from the temporal point of view, compensation was available only to owners whose property had changed its classification as a result of the adoption of a new local land development plan. As noted above, this was not so in the applicant’s case: his land was acquired and remained classified as “farmland”. It follows that the compensation would not in any event have been available to the applicant.
114. As regards the applicant’s submissions that his neighbours were granted construction permits and were able to develop their property, the Court notes that these arguments have been properly addressed and examined by the domestic authorities, which observed that the construction permits granted to the owners of the property in the applicant’s vicinity applied solely to the development of already existing buildings and equipment, whereas the applicant’s requests concerned entirely new construction on previously undeveloped land (see paragraphs 38 and 40 above).
115. Having regard to all the foregoing factors, the Court finds that a fair balance was struck between the protection of the applicant’s possessions and the requirements of the general interest and the applicant did not therefore have to bear an individual or excessive burden.
There has accordingly been no violation of Article 1 of Protocol No. 1 to the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention.
Done in English, and notified in writing on 15 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı András Sajó
Deputy Registrar President