CASE OF SKIBIŃSCY v. POLAND
(Application no. 52589/99)
14 November 2006
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 Skibińscy v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and Mrs F. Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 24 October 2006,
Delivers the following judgment, which was adopted on the last mentioned date:
7. The parties replied in writing to each other’s observations.
I. THE CIRCUMSTANCES OF THE CASE
In June 1992 they obtained a permit under Article 10 of the Land Administration and Expropriation Act 1985 to divide their plot, which was listed in the local land register as plot no. 1/1, into 15 smaller plots suitable for the construction of individual houses (decyzja o zatwierdzeniu projektu podzialu nieruchomości).
II. RELEVANT DOMESTIC LAW
A. Changes in land development legislation during the period concerned
B. Outline of procedure in which local land development plans are adopted
A final plan was adopted by way of a resolution of a local council. The council, when voting on the draft plan, also decided whether and, if so, in what manner, objections and comments submitted by the local public were to be considered.
C. Compensation entitlements of owners to be expropriated in the future
On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995.
D. Relevant provisions of the land expropriation legislation
“(1) an indication of the property to be expropriated, ...
(3) an indication of the party upon whose initiative the property is being expropriated,
(4) an assessment of the amount of compensation,
(5) identification of the persons (name, surname and address) entitled to compensation,
(6) detailed factual and legal grounds,
(7) instructions on appeal procedures.”
E. Relevant provisions of building legislation
1. Before 1 January 1995
Section 4 of that Act read:
“Every person has a right to build on land, provided that he or she possesses a right to use this land for building purposes and that the building project is in compliance with applicable provisions of building laws.”
2. After 1 January 1995
Under this latter provision, such a decision should specify the essential characteristics of the land concerned and of the future construction project, if they differ from the use of that land provided for by the local land development plan.
Under Section 39 of the Building Act, once such a decision has been obtained, the owner can apply for a construction permit (pozwolenie na budowę).
I. PRELIMINARY OBSERVATION
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
“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.
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.”
A. The parties’ submissions
1. The Government’s submissions
2. The applicants’ submissions
B. The Court’s assessment
1. General principles
“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.”
2. Whether there was interference with the peaceful enjoyment of “possessions”
As a result, the applicants could not proceed with the construction. Their plots remained blocked in that way until 31 December 2003 when the 1979 land development plan expired (see paragraph 27 above).
It was only by virtue of section 36 of that Act that local authorities became obliged either to buy plots designated for future expropriation under local land development plans, or to replace those plots by other plots, or to award the owners compensation for damage caused by the fact that their plots were designated for future expropriation. However, the right to compensation applied only to plans adopted after the 1994 Act had entered into force. Consequently, they were not applicable to the applicants’ situation as the plan for the municipality of Częstochowa had been adopted in 1979.
3. Whether the interference was “provided for by law”
4. Whether the interference was “in the general interest”
86. In the present case the Court accepts that already in 1994 the measures complained of pursued the legitimate aim of securing land in connection with the implementation of the local land development plan. This corresponds to the general interest of the community (see, mutatis mutandis, Cooperativa La Laurentina v. Italy, no. 23529/94, § 94, 2 August 2001; Bahia Nova S.A. (dec.), no. 50924/99, 12 December 2000; and Chapman v. the United Kingdom, no. 27238/95, § 82, ECHR 2001-I).
5. Proportionality of the interference
Subsequently, the proceedings concerning the applicants’ request to be granted final construction permits were stayed pending the outcome of these proceedings (see paragraph 17 above). The applicants’ request was eventually refused and in the refusal the authorities made reference to the provisions of the land development plan which provided for the construction of a roadway on the plots owned by the applicants (see paragraph 24 above). The authorities also referred to the future expropriation of the applicants’ plots on the basis of that plan.
Hence, at the time when the applicants’ request to obtain final building permission was pending before the competent authorities, there were no good grounds on which to believe that the land development plan adopted in 1979 and amended in 1994 would be implemented promptly. As a result, the de facto blocking of any construction on the applicants’ property did not serve any immediate or medium-term purpose in the interest of the community.
In the Court’s view, given that it was uncertain whether the plans of the land development would be implemented in the reasonably near future, this state of affairs disclosed a lack of sufficient diligence in weighing the interests of the owners against the planning needs of the municipality.
The Court observes that it is not in dispute that the 1994 Act was intended to improve the situation of owners to be expropriated in the future in that certain right to compensation entitlements were foreseen for them for the first time in Polish law. However, in its assessment of the proportionality of the measures complained of, the Court cannot overlook the fact that, when enacting the 1994 Act, the legislature on the one hand introduced compensatory provisions into law, but at the same time excluded the application of those provisions in respect of plans adopted before 1 January 1995. What is more, the legislature subsequently prolonged this situation on three occasions, for an overall period of nine years. Consequently, until July 2003, the date of entry into force of the Local Planning Act 2003, the applicants could not make any claim for compensation against the municipality in respect of their particular situation.
However, it observes that these provisions started to operate only after the 2003 Act had entered into force and only in respect of local land development plans adopted after that date. It has not been argued or shown that the 2003 Act provides for any retrospective right to compensation for the prejudice suffered by the applicants, before its entry into force, as a result of restrictions originating in a land development plans adopted in the past.
Consequently, the entry into force of the 2003 Act did not alter the applicants’ situation.
The Court is aware that the difficulties in enacting a comprehensive legal framework in the area of urban planning constitute part of the process of transition from a socialist legal order and its property regime to one compatible with the rule of law and the market economy – a process which, by the very nature of things, is fraught with difficulties. However, these difficulties and the enormity of the tasks facing legislators having to deal with all the complex issues involved in such a transition do not exempt the Member States from the obligations stemming from the Convention or its Protocols (see Schirmer v. Poland, no. 68880/01, 21 September 2004, § 38).
III. ARTICLE 41 OF THE CONVENTION
“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.”
1. Damage claimed in the present case
(i) PLN 8,635 in respect of real estate taxes which the applicants had had to pay for the property from 1995 until the end of 2004;
(ii) PLN 9,000 in respect of reimbursement of maintenance costs of the property;
(iii) PLN 100,000 in respect of material damage which the property sustained during the material time;
(iv) PLN 5,000 in respect of damage resulting from repeated burglaries at the property;
(v) PLN 837,884 corresponding to the price which the applicants could have obtained if their plan to have their property divided into smaller construction plots and sold to private parties had been brought to fruition, with the capital thus obtained being paid into their bank account plus interest accruing from February 1995 to July 2003.
2. Costs and expenses
3. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) reserves the said question;
(b) invites the Government and the first applicant to submit, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be;
(a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,647 (one thousand six hundred and forty seven euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable on the above amount;
(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 14 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Nicolas Bratza
Deputy Registrar President
1 Approximately EUR 50,000.