(Application no. 22531/05)
6 November 2007
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 Bugajny and Others v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Mr J. Casadevall, President,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mrs F. Aracı, Deputy Section Registrar,
Having deliberated in private on 9 October 2007,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings before the administrative authorities
“did not so much limit the scope of roads to which that provision was applicable, but was only intended to make more precise the intentions of the lawmaker regarding [the application ] of this Act”.
It concluded that that the contested decision was in conformity with the law.
2. The civil proceedings
“Obviously, there was also another legal problem in the case. The conduct of the city in the present case had caused a situation in which the owner could not use his land freely, as provided for in Article 140 of the Civil Code. At the same time, the property serves one of the purposes [road construction] which normally should be ensured by the local municipality; what is more, it is the owner who bears the costs of achieving of this purpose.
It can be argued that a situation worse even than a so-called de facto expropriation obtains in the present case. This is so because under Article 1 of Protocol No. 1 to the Convention the term “expropriation” covers not only formal expropriation or restriction of ownership carried out in proper expropriation proceedings. The case law of the Strasbourg Court also distinguishes a category of de facto expropriation, namely such acts by the public authorities which lead to a practical deprivation of possessions or to restrictions on their use (Papamichalopoulos and Others v. Greece, 1993).”
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Relevant constitutional provisions and case-law
“1. The Republic of Poland shall protect property and a right to inherit.
2. Expropriation is allowed only in the public interest and against payment of just compensation.”
“Freedom of the person shall be legally protected.
Everyone shall respect the freedoms and rights of others. No one shall be compelled to do anything which is not required by law.
Any limitation upon the exercise of constitutional freedoms and rights may by imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
The Constitutional Court observed that the nature of expropriations carried out in this context did not differ from expropriations effected for the purposes of public use, regardless of the fact that an expropriation was effected in proceedings different from ordinary expropriation proceedings. Hence, the provisions of the Constitution as they stood at that time and insofar as they provided for the protection of the right to the peaceful enjoyment of possessions were applicable to such expropriations. The Constitution allowed for the expropriation of private properties only for the purposes of public use and only against compensation. Compensation, in order to comply with constitutional requirements, had to be just and fair. The notion of fair compensation, including for expropriation carried out at the request of the owner and in his or her interest, had to be in the amount corresponding to the value of the expropriated property. Only compensation satisfying these conditions was in compliance with the nature and purpose of the obligation of the public authorities to compensate an owner whose property was expropriated. Any restrictions on the right to a fair compensation, including by way of reductions of its amount, was in breach of constitutional principles.
2. Relevant provisions of the land expropriation legislation
3. Changes in the relevant provisions of the Land Administration Act 1997
1. Plots of land designated for the construction of roads in an administrative decision on the division of property shall be expropriated ex lege on the date on which such a division decision becomes final. (...)
3. The compensation due for such plots shall be established by way of negotiation between the expropriated owner and the relevant public authority; if negotiations fail, compensation shall be determined according to the principles applicable in respect of land expropriation.
39. On 15 February 2000 amendments to this Act came in force. Following these amendments, the text of subsection (1) read as follows:
“1. Plots of land designated in a decision on the division of property for the construction of public roads, such as municipal, county, regional and national roads shall be expropriated ex lege on the date on which such a division decision becomes final. (...) “
40. In a legal opinion of 29 May 2003, prepared for a different case from that of the applicants', the Central Urban Development Office stated that section 78 of the Land Administration Act in its version applicable until 15 February 2000 was a legal basis for the expropriation ex lege of all land designated for road construction purposes under decisions on the division of properties, regardless of whether these roads were of a public character or were to be considered internal roads, on the date when such decisions became final.
I. 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.”
1. The Government's submissions
This approach was later specified in the amendment of February 2000 to that Act. In addition, the Supreme Administrative Court had also held, in its judgment of 16 October 2001 (see paragraph 17 above) that the roads on the applicants' land were not public because they had not been provided for in the local land development plan. Had that been the case, they would have been expropriated and compensation would have been paid.
The applicants' case could not be likened to the case of Papamichalopoulos v. Greece as in that case the applicants had lost all ability to make use of their property, to sell, bequeath, mortgage or make a gift of it. In the present case the applicants could use and dispose of the land concerned and no public authority had ever deprived them of possession of it.
2. The applicants' submissions
3. The Court's assessment
(a) Whether there was interference with the peaceful enjoyment of “possessions”
The Court therefore concludes that there was indeed an interference with the peaceful enjoyment of the applicants' possessions.
(b) Whether the interference was “in the general interest”
63. In the present case the Court considers that the measures complained of pursued the legitimate aim of protecting the financial stability of the municipal budget. 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. v. Spain, (dec.), no. 50924/99, 12 December 2000; Chapman v. the United Kingdom, no. 27238/95, § 82, ECHR 2001 I).
(c) Whether the interference was “provided for by law”
(d) Proportionality of the interference
III. APPLICATION OF 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.”
(i) PLN 946,566 in respect of the surface area of 5,843 square metres, covered by the plot of land currently being used as roads, the average price of 1 square metre of the estate being estimated on the basis of a report prepared by a certified expert submitted to the Court and dated February 2003, at PLN 152,07. The expert referred to the characteristics of the land in the area concerned and to the conditions obtaining on the local real estate market in 2003. He noted that there was a period of stagnation on the market, linked to the general conditions in the national economy. However, the area offered attractive conditions and many transactions had been concluded, thus bringing the prices slightly above the average in the city.
(ii) PLN 73,422.50 in respect of the costs and expenses incurred in the proceedings before the civil courts during which the applicants had sought to prevent the violation of their right to the peaceful enjoyment of their possessions.
The Court further notes that the Government have challenged neither the method used by the expert nor the overall amount.
The Court is therefore of the view that it has been shown that the amount claimed by the applicants is reasonably related to the value of the land concerned and to the amount of compensation which would have been paid to the applicants had their land been expropriated by the administrative authorities under the provisions of the Land Administration Act.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, 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:
(a) EUR 247,000 (two hundred and forty-seven thousand euros) in respect of pecuniary damage;
EUR 18,725 (eighteen thousand seven hundred and twenty five euros) in respect of costs and expenses;
(b) that from the expiry of the above mentioned three months until settlement simple interest shall be payable on the above amounts 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 6 November 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Josep Casadevall
Deputy Registrar President