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PIETRZAK v. POLAND - 38185/02 [2008] ECHR 16 (8 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/16.html
Cite as:
[2008] ECHR 16
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FOURTH
SECTION
CASE OF PIETRZAK v. POLAND
(Application
no. 38185/02)
JUDGMENT
STRASBOURG
8
January 2008
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 Pietrzak v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Josep
Casadevall,
Giovanni Bonello,
Kristaq Traja,
Stanislav
Pavlovschi,
Lech Garlicki,
Ljiljana Mijović, judges,
and
Fatoş Aracı, Deputy Section Registrar,
Having
deliberated in private on 4 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 38185/02) 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 Polish nationals, Mr Wiesław Pietrzak and
Mrs Halina Pietrzak (“the applicants”), on 30
September 2002.
The
applicants, who had been granted legal aid, were represented by Mr J.
Weinberger, a lawyer practising in Gdańsk. The Polish Government
(“the Government”) were represented by their Agent, Mr J.
Wołąsiewicz of the Ministry of Foreign Affairs.
The
applicants alleged that their right to the peaceful enjoyment of
their property had been breached since the land which they owned had
been designated for expropriation at some undetermined future date.
Under domestic legislation they were not entitled during the relevant
period to any compensation for the interference with their ownership
rights resulting from the future expropriation.
On
4 May 2006 the Court decided to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
first applicant, Mr Wiesław Pietrzak (“the first
applicant”), was born in 1943. The second applicant, Mrs Halina
Pietrzak (“the second applicant”), was born in 1951. They
are married and live in Gdańsk.
The
first applicant owns a plot of land and a house situated on it
located in the suburbs of Gdańsk. The major part of his property
is classified as agricultural land. There are some other houses in
the area, but a significant part of it is used for allotments.
A. Facts prior to 10 October 1994
It
appears that the first applicant's father acquired the property in
question in 1972. At that time, the property was classified as
agricultural land and lay outside the perimeters of Gdańsk.
Subsequently, with the enlargement of the city, the property became
located in the vicinity of a residential and allotments area.
In
1973 and 1977 the first applicant's father was twice refused planning
permission on the ground that the plot had not been designated for
construction of a house.
In
April 1975 a local development plan for the area was adopted. The
first applicant's plot was designated for the construction of a road.
On
an unspecified later date the first applicant acquired the property
at issue.
On
28 May 1988 the Gdańsk Municipal Council adopted a local
development plan which stipulated that a road was to be constructed
on the first applicant's plot.
On
24 December 1987 and 15 November 1991 the Gdańsk Municipality
informed the first applicant that his property was designated in the
relevant local development plan for the building of a new road.
Accordingly, the property could not be used for the purposes of
constructing a new house or planting an orchard.
On
12 February 1992 the first applicant requested the Mayor of Gdańsk
to acquire his property as it had been designated for the building of
a road. On 22 June 1992 the Mayor transmitted that request to the
Head of the Gdańsk District Office (Kierownik Urzędu
Rejonowego) which was competent to decide on it. It appears that
the request was never examined.
On
an unspecified date in 1992 the first applicant petitioned the
Ombudsman. On 14 July 1992 the Ombudsman informed him that, following
a number of similar complaints concerning the legal status of
so-called “frozen properties” (i.e. properties which were
designated in a local development plan for public use at an
undetermined future date), he had requested the Minister of Local
Planning and Construction to adopt a general solution to the problem.
In particular, the Ombudsman called for a provision in the local
planning bill which would impose an obligation on the local
authorities to acquire “frozen properties” or offer an
alternative plot to the owners concerned.
On
29 June 1993 the Gdańsk Municipal Council adopted a general
local development plan. The plan maintained the provision that a road
was to be constructed on the applicant's plot. Prior to the adoption
of the new plan, the Minister of Agriculture and the Gdańsk
Governor had authorised the change of use of agricultural land for
non-agricultural purposes.
On
20 August 1993 the applicant inquired with the Gdańsk
Municipality about the conditions for construction of a temporary
building (zabudowa tymczasowa) on his property. On 6 October
1993 he was informed about the relevant conditions for properties
designated in local development plans for future public use. He was
also informed that he could continue using the property for
agricultural purposes or, alternatively, he could construct a
temporary storehouse. The municipality further explained that the
planned road would not be constructed in the foreseeable future. The
applicant was invited to submit concrete proposals for consideration
by the municipality and informed that any temporary buildings would
have to be removed at his own expense when the planned road was
constructed. It appears that the first applicant did not submit any
proposals to the municipality.
B. Facts after 10 October 1994
On
1 January 1995 the Law of 7 July 1994 on Local Planning (“the
1994 Act”) entered into force.
On
11 February 2000 the first applicant's lawyer sent a letter to the
Mayor of Gdańsk, inquiring about his unanswered request of 1992
for the acquisition of the property.
On
30 March 2000 the first applicant was informed that due to the
dissolution of the district offices it was not possible to establish
the reasons as to why the Gdańsk District Office had not taken
any decision on his request. He was further informed that the local
development plan of 28 May 1988, which had specified that a
new road would pass through the first applicant's property, was still
in force. Furthermore, the municipality's investment plan for the
years 2000-2003 did not foresee the construction of the road in
question. Accordingly, the first applicant could use his land as
previously. In addition, the first applicant was informed that
according to the 1994 Act the municipality could not acquire his
property since the relevant local development plan had been adopted
prior to 1995 and that his use of the property had not become
unfeasible. Consequently, his request could not be granted.
The
applicants appealed against that decision to the Gdańsk Local
Government Board of Appeal. On 14 September 2000 the Board of Appeal
ruled that the appeal was inadmissible in law. It observed that in
accordance with the Code of Administrative Procedure an appeal could
be lodged only against an administrative decision. However, the Board
of Appeal noted that the provisions of the 1994 Act (section 36)
excluded the possibility of adopting an administrative decision in
respect of the applicants' request for the acquisition of their
property by the municipality. Thus, the letter of the Mayor of Gdańsk
of 30 March 2000 could not be considered as an administrative
decision.
The
applicants appealed against that decision to the Supreme
Administrative Court, relying, inter alia, on Article 1 of
Protocol No. 1 to the Convention.
On
8 May 2002 the Supreme Administrative Court dismissed their appeal.
On
25 February 2003 the Gdańsk Municipality informed the first
applicant that according to the local development plan which would
remain valid until 31 December 2003 his property had been designated
for a future thoroughfare.
On
5 August 2003 the Gdańsk Municipality informed the first
applicant that the old local development plan designating his
property for the construction of a road would remain valid until the
end of 2003. In addition, he was informed that the municipal
investment plan for the years 2004-2008 did not foresee the
construction of the road in question. He was also informed that a new
local development plan was being drafted and that he was entitled to
lodge his objections in that respect.
On
11 July 2003 the Law of 27 March 2003 on Local Planning (“the
2003 Act”) entered into force on 11 July 2003. It repealed the
1994 Act.
On
31 December 2003 the old local development plan expired.
On
31 May 2005 the first applicant requested the municipality to provide
him with information as to the future development of his land.
On
8 June 2005 he was informed that pursuant to the 2003 Act until the
adoption of the new local development plan the manner of development
of a particular property was to be determined by means of planning
permission. However, such permission could only be granted if a
number of conditions specified in section 61 of the 2003 Act were
met, including that the property at issue did not have to be
reclassified from agricultural to non-agricultural land. In
connection with the last requirement, the first applicant submitted
that he was prevented from developing his property until such time as
the new local development plan had been adopted.
It
appears that as of December 2005 the Municipality of Gdańsk had
not yet adopted a new local development plan in respect of the first
applicant's land. According to the preliminary draft plan, the
applicants' property will be designated in the major part for housing
purposes and in the remaining part for housing and services purposes.
The property will adjoin the planned road, but the road will not pass
through the applicants' property.
As
of 11 September 2006 the applicant had not yet applied for planning
permission.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Changes in land development legislation during the period
concerned
From
1 January 1985 to 31 December 1994 questions of land development were
governed by the Law of 12 July 1984 on Local Planning. Under this law
owners of properties to be expropriated in the future were not
entitled to any form of compensation for damage resulting from
restrictions on the use of their property or the reduction in its
value originating in expropriations to be carried out at an
undetermined future date.
On
7 July 1994 a new Law on Local Planning Act was enacted (“the
1994 Act”). It entered into force on 1 January 1995.
Section
36 of the 1994 Act created for local authorities a number of
obligations towards owners whose properties were designated for
expropriation at an undetermined future date under land development
plans adopted by the competent municipal authorities. The
municipalities were obliged to buy such property, replace it with
other land within six months of an owner's request, or provide
compensation for the damage caused by the designation.
However,
pursuant to section 68 § 1 of the 1994 Act, these obligations
and the corresponding claims of the owners applied only to plans
adopted after the 1994 Act had entered into force, i.e. to plans
adopted by local authorities after 1 January 1995.
Pursuant
to the 1994 Act, plans adopted before its entry into force were to
expire on 31 December 1999. In 1999 an amendment to the 1994 Act
was adopted under which the validity of such plans was extended for a
further two years until 31 December 2001. Again, on
21 December 2001, Parliament passed a law amending the 1994
Act which extended until the end of 2002 the validity of the land
development plans adopted before 1 January 1995.
On
27 March 2003 a new Law on Local Planning was enacted (“the
2003 Act”). It entered into force on 11 July 2003 and repealed
the 1994 Act. Under section 87 of the 2003 Act, all local plans
adopted before 1 January 1995 remained valid, but not
beyond 31 December 2003.
Compensation
entitlements for owners, provided for by the 1994 Act, were in
essence maintained by the 2003 Act. Pursuant to section 36 of the
latter Act, when, following the adoption of a new local land
development plan, the use of property in the manner provided for by a
previous plan had become impossible or had been restricted, it was
open to the owner to claim compensation from the municipality, or to
request the municipality to buy the plot. Any litigation which might
arise in this respect between local authorities and owners could be
pursued before the civil courts. It would appear that the operation
of section 36 is not retroactive, thus limiting the scope of any such
claims to the period after the adoption of the 2003 Act.
Section
59 of the 2003 Act provides, subject to certain conditions, for a
possibility of developing a plot of land by way of planning
permission in the absence of a local development plan.
Other
relevant legislative provisions are extensively set out in the
Court's judgment of 14 November 2006 in the case of Skibińscy
v. Poland (no. 52589/99, §§ 28 – 53, 14 November
2006).
B. Judgment of the Constitutional Court (case no. K
6/95)
In
its judgment of 5 December 1995, the Constitutional Court examined
the Ombudsman's request to determine the compatibility with the
Constitution of section 68 § 1 of the 1994 Act insofar as it
excluded the application of section 36 of that Act to land
development plans adopted before 31 December 1994. The Constitutional
Court referred to its established case-law to the effect that the
right to property could not be regarded as ius infinitivum.
Consequently, its exercise was restrained by many legal and practical
considerations, including the necessity of balancing the owners'
interests against those of other persons. Local land development
plans were to be regarded only as a practical expression of
restraints originating in numerous statutes regulating the lawful
exercise of property rights. In particular, owners of properties
“frozen” for the purpose of future expropriations as a
result of the adoption of such plans could normally continue to use
their properties as they had been using them prior to the adoption of
such plans. This did not amount to such an interference with property
rights that it could be regarded as being incompatible with their
constitutional protection.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
The
applicants alleged that their right to the peaceful enjoyment of
their possessions had been breached. They relied on Article 1 of
Protocol No. 1 to the Convention, which reads as follows:
“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.”
The
Government contested that argument.
A. Admissibility
1. Incompatibility ratione temporis with the provisions
of the Convention
The
Government argued that they could not be held responsible for any
consequences stemming from the local development plan adopted before
10 October 1994, the date on which Poland ratified Protocol No. 1 to
the Convention. The plot at issue had been classified as agricultural
land even before it had been acquired by the first applicant's father
in the 1970s. The use of the first applicant's plot had been
determined by the provisions of law and the local development plan
long before 10 October 1994. On that date the first applicant had not
possessed, in particular, the right to build other houses on his
plot. After 10 October 1994 no provision of law and no act of the
domestic authority had limited any property rights of the applicants.
Consequently, the Government submitted that the application should be
declared incompatible ratione temporis with the Convention.
Alternatively, they maintained that in respect of the Court's
temporal jurisdiction only the period after 11 February 2000 should
be taken into consideration by the Court as only on that date had the
applicant submitted his grievances to the authorities
The
applicants disagreed.
The
Court observes that the applicants' complaint is not directed against
a single measure or decision taken before, or even after,
10 October 1994. It rather refers to continuous
restrictions imposed on the exercise of their ownership and arising
from various legal measures, adopted both before and after that date.
In this respect, the Court considers that it cannot be said that the
restrictions at issue which had had their origin in the period prior
to 10 October 1994 remained unchanged after that date. It further
observes that the 1994 Act, which entered into force on
1 January 1995, maintained the impugned restrictions and
extended their effects until 31 December 2003. Furthermore,
the Court notes that the arguments raised by the Government are the
same as those already examined and rejected by the Court in previous
cases against Poland (see Rosiński v. Poland,
no. 17373/02, §§ 42-43, 17 July 2007) and
the Government have not submitted any new arguments which would lead
the Court to depart from its previous findings. For these reasons,
the Government's plea of inadmissibility on the ground of lack of
jurisdiction ratione temporis must be dismissed.
2. Incompatibility ratione personae with the provisions
of the Convention
The
Government argued that only the first applicant (Wiesław
Pietrzak) was the owner of the property at issue, as transpired from
the pleadings of the applicants' lawyer of 13 April 2006. Therefore,
the application should be found incompatible ratione personae
in respect of the second applicant (Halina Pietrzak).
The
applicants did not comment.
The
Court notes that the applicants' lawyer submitted in his letter of 13
April 2006 that the first applicant (Wiesław Pietrzak) was the
sole owner of the property at issue. That fact is confirmed by a copy
of the entry from the local land register. It follows that the
application is incompatible ratione personae with the
provisions of the Convention within the meaning of Article 35 § 3
and must be rejected in accordance with Article 35 § 4
in respect of the second applicant (Halina Pietrzak).
3. Incompatibility ratione materiae with the provisions
of the Convention
The
Government submitted that the applicant had never acquired a right to
construct on his plot which from the beginning had been classified as
agricultural land. The applicant had had no enforceable claim or
legitimate expectation that the authorities would allow him to use
the plot for the construction of a house. The Government averred that
Article 1 of Protocol No. 1 did not guarantee the right of an
individual to use his/her property for specific purposes according to
his/her wish and to grant him/her the right to construct on a
property which had been classified as agricultural land. Thus, the
present application was incompatible ratione materiae with the
Convention.
The
applicant, referring to the Skibińscy v. Poland judgment,
argued that although being formally the owner of the property, he had
been significantly restricted in the effective exercise of his
property rights.
The
Court notes the Government's argument that under the applicable laws
the applicant had no right to build on the land concerned. However,
it observes that the essence of the applicant's complaint relates to
a set of restrictions on the exercise of his ownership, with
particular emphasis on the lack of any right to compensation for the
future expropriation of his land, a state of affairs which lasted
until 31 December 2003 (see, Rosiński, cited above, §
46). In addition, the Court notes that prior to the adoption of the
general local development plan in 1993 the authorities authorised the
change of use of agricultural land for non-agricultural purposes (see
paragraph 15 above). The Court therefore rejects the Government's
objection.
4. Exhaustion of domestic remedies
The Government submitted that the applicant had not
exhausted all relevant domestic remedies.
(a) Application for planning permission
The
Government underlined that the applicant had not made any formal
request for planning permission after 10 October 1994, in particular
after the entry into force of the 1993 local development plan. Under
the 1994 Act planning permission would be refused only if the
proposed development would be incompatible with the local development
plan. The applicant might have applied for planning permission
allowing him to use his property in a more profitable manner, such as
the construction of temporary buildings connected with agricultural
activities. Furthermore, the applicant had not followed the
municipality's suggestions of October 1993 as to the construction of
a storehouse. The applicant could also plant an orchard or run a
garage on his property without the need to apply for special permits.
In
respect of the period after 31 December 2003, i.e. following the
expiration of the validity of the 1993 local development plan, the
Government underlined that under section 59 § 1 of the 2003 Act
the applicant clearly could have obtained planning permission in the
absence of a local development plan. However, he had not availed
himself of that possibility. In addition, the relevant authorisation
for the use of agricultural land for non-agricultural purposes had
already been granted to the municipality before the adoption of the
1993 plan. Furthermore, under the draft of a new local development
plan the applicant's property was designated for housing and not for
a road.
The
applicant argued that until 31 December 2003 each of his attempts to
obtain planning permission had been futile since the local
development plans in force at the material time had designated his
property for the construction of a road. He had attempted to obtain
permission and had written to the local authorities to that end, but
to no avail. In respect of the period after 31 December 2003 the
applicant submitted that he still would not have obtained planning
permission as his property would have to be reclassified from
agricultural to non-agricultural land.
The
Court notes that the relevant local development plans in force until
31 December 2003 specified that the applicant's property was to be
used for the construction of a future road. Thus, it accepts that
until that date any application for planning permission would have
been ineffective. The Court further observes that the possibility of
using the applicant's property in a temporary manner referred to by
the Government cannot compensate for the significant restrictions on
the use of his property which resulted from the stipulations in the
local development plan. In this respect, the Court notes that any
temporary buildings constructed by the applicant would have had to be
dismantled at his expense. Consequently, the Court finds that an
application for planning permission cannot be regarded as an
effective remedy in respect of the period up until 31 December 2003.
In
respect of the period after 31 December 2003 the Court will address
the change in the legal situation concerning the applicant's property
at the merits stage of the judgment.
(b) Constitutional complaint
The
Government argued that a constitutional complaint was an effective,
sufficient and available domestic remedy in the applicant's case. The
applicant could have challenged the compatibility of the transitional
provisions of the 1994 with the 1997 Constitution. There had been no
obstacles to the filing of such a complaint despite the fact that the
constitutionality of those provisions had already been examined in
1995. The Constitutional Court could examine again the compatibility
of the relevant provisions of the 1994 Act with the new Constitution
which entered into force on 17 October 1997.
The
Government further argued that the applicant should have lodged a
civil action with a court, claiming damages against the municipality
for the interference with his right to the peaceful enjoyment of his
possessions. Had a civil court found against him, he could also have
lodged a constitutional complaint to challenge the provisions of the
1994 Act which were applied to his case.
According
to the Government, the applicant could have also applied for planning
permission. Had he obtained a negative decision due to the provisions
of the local development plan, he would have been entitled to file a
constitutional complaint against section 67 § 1 of the 1994 Act
which maintained and, subsequently, extended the validity of the
plans adopted prior to 1 January 1995.
The
applicant disagreed. He argued that the Government had failed to
specify which provision of the 1994 Act had been unconstitutional, in
particular having regard to the Constitutional Court's judgment of
5 December 1995. In this respect he submitted that, regardless
of whether the constitutional review had taken place before or after
the entry into force of the 1997 Constitution, the Constitutional
Court would have interpreted the constitutional right to property in
the same way.
In
the instant case, the Court notes that the essence of the applicant's
complaint is that as a result of the expropriation to be carried out
at a future undetermined date he was not entitled to compensation for
a protracted period of uncertainty which was twice prolonged by the
legislator. Likewise, he was not entitled to obtain land in lieu of
the plot designated for expropriation. He did not have a claim
against the municipality to oblige it acquire his property before the
planned expropriation. Lastly, he was also prevented from pursuing
any significant development projects on his property (see paragraphs
16, 19 and 23 above). These considerations are relevant for the
period up until 31 December 2003 (see paragraph 36 above).
In
respect of the effectiveness of the constitutional complaint, the
Court notes that the arguments raised by the Government are similar
to those already examined and rejected by the Court in previous cases
against Poland (see Rosiński, cited above, §§ 42-43).
The Government further argued that the applicant should have applied
for planning permission and having exhausted all relevant
administrative law remedies should have filed a constitutional
complaint against section 67 § 1 of the 1994 Act. However, the
Court notes that such a course of action was bound to fail since
until 31 December 2003 the local development plan in force
stipulated that the applicant's plot was designated for the
construction of a road. Having regard to the stipulations in the
local development plan, the local authorities could not issue a
decision in favour of the applicant (in particular concerning
extensions or construction of a new house) since section 43 of the
1994 Act provided that planning permission had to comply with the
local development plan. It would also appear that section 67 § 1
of the 1994 would not serve as a direct legal basis for the refusal
to grant planning permission. Furthermore, the Court notes that the
Constitutional Court did not have jurisdiction to examine the
constitutionality of a local development plan (see the Constitutional
Court's decision of 6 October 2004 adopted in its “full
composition”, case no. SK 42/02).
The
Government further argued that the applicant should have filed a
constitutional complaint in the event of an unsuccessful outcome to
his action for damages against the municipality. However, the Court
observes that the relevant provisions of the 1994 Act clearly
excluded liability of local authorities for damage resulting from
restrictions on the use of property in connection with the future use
of the property as specified in the local development plan adopted
prior to 1 January 1995. In this respect the Court notes that the
Government argued that the applicant could challenge by way of a
constitutional complaint the exclusion of compensatory measures as
provided under section 36 of the 1994 Act for owners in his position.
However, the Court observes that the Constitutional Court in its
case-law has consistently ruled out the possibility that a
constitutional complaint could be used to challenge the lack of
legislation in a given sphere affecting constitutional rights and
freedoms (see, inter alia, decision of 24 January 1999, case
no. Ts 124/98 and decision of 13 October 2004, case no. Ts 55/04).
Having
regard to the above considerations, the Court takes the view that the
constitutional complaint cannot be regarded as an effective remedy in
the applicant's case.
(c) Procedure for amending the local
development plan
The
Government maintained that the applicant had not made use of any of
the available measures in the procedure for amending the local
development plan. They had never requested the authorities to amend
the local development plan pursuant to the relevant provisions of the
1994 Act.
The
applicant disagreed and submitted that the above procedure could not
be considered an effective remedy in his case.
The
Court does not find it established that the procedure for amending
the local development plan can be regarded as an effective remedy in
the circumstances of the case.
(d) Complaint under section 101 of the Law
on Local Government and related compensatory claims
The
Government argued that the applicant had not availed himself of the
possibility of lodging a complaint with the administrative court
under section 101 of the Law of 8 March 1990 on Local Government
against the municipality's resolution adopting the local development
plan. It had been underlined in the Constitutional Court's judgment
of 5 December 1995 that that remedy could be used by owners adversely
affected by the old local development plans. The Government further
referred to the Supreme Court's judgment of 3 June 1993 (case no. III
ARN 28/93) which had held that the administrative court had had to
review whether a proper balance had been struck in such cases between
the interest of the community and the interest of the owners. Had the
applicant been successful in pursuing his complaint under section 101
he could have then claimed compensation under the relevant provisions
of the Code of Administrative Procedure and the Civil Code.
The
applicant contested the Government's view.
The
Court observes that the Government have not provided any examples of
domestic cases where an individual had been able to successfully
challenge the designation of his/her property for public use in a
local development plan by filing a complaint under section 101 of the
Law on Local Government. The Court considers that it has not been
shown that the above complaint could be considered an effective
remedy in respect of a complaint such as the applicant's. The same
applies to the related compensatory measures invoked by the
Government.
(e) Claims under section 36 of the 1994
Act
The
Government averred that after the municipality's refusal to acquire
his plot the applicant should have lodged a civil action with a court
demanding that the municipality satisfy the claims under section 36
§§ 1 and 2 of the 1994 Act. They relied on the decision of
the European Commission of Human Rights of 2 July 1997 in the case of
Swat v. Poland where in similar factual and legal
circumstances the Commission had rejected the application for
non-exhaustion.
The
applicant argued that he had had no claims for damages against the
local authorities, referring to the Skibińscy v. Poland
judgment.
The
Court observes that under the provisions of the 1994 Act the
liability of public authorities for any damage which might have its
origin in expropriation planned for the future was expressly excluded
(see Rosiński, cited above, § 56). Hence, this
remedy did not offer any prospects of success.
(f) Complaint about inactivity of an
administrative authority
The
Government maintained that the applicant had remained passive from 11
February 1992 to 11 February 2000 in the proceedings concerning his
application for acquisition of his plot by the authorities. During
that period he had not complained under Article 37 of the Code of
Administrative Procedure about the authorities' failure to decide on
his application within the prescribed time-limit.
The
applicant contested the Government's view.
The
Court recalls that the core of the applicant's complaint relates to a
set of legal restrictions on the exercise of his ownership, with
particular emphasis on the lack of any right to compensation for the
future expropriation of his land prior to and after the entry into
force of the 1994 Act (see paragraphs 80-82 below). In those
circumstances, the Court finds that a complaint about the inactivity
of the administrative authorities in respect of his application for
acquisition could not redress the limitations on the exercise of the
property rights underlying the instant case. Consequently, that
remedy could not be considered effective in the applicant's case.
(g) Conclusion as to exhaustion of
domestic remedies
Having
regard to the foregoing, the Court rejects the Government's
objections concerning non-exhaustion of domestic remedies. In respect
of the period after 31 December 2003 the Court will address the
change in the legal situation concerning the applicant's property at
the merits stage of the judgment.
Furthermore,
the Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The applicant's submissions
The
applicant argued that there had been a breach of his right to the
peaceful enjoyment of his possessions. He had remained the owner of
the land, but in view of the planning measures taken in his case and
the applicable legal framework his property rights had been stripped
of any real significance. On the one hand, the applicant could not
obtain a building permit in order to make use of his property, in
particular by constructing a new house or substantially renovating
his old house. On the other, he had been adversely affected by the
expropriation to be carried out at an undetermined future date.
He
averred that the legal uncertainty surrounding the status of his
land, the lack of any effective domestic remedy capable of rectifying
the situation and the absence of any compensation had amounted to a
situation in which he had had to bear an excessive burden. The
interference with his property rights had not been necessary and had
not furthered the general interest.
Furthermore,
even though his property had been originally classified as
agricultural land, it had not been feasible to use it for that
purpose since with the enlargement of the city the plot was now
situated in the housing area.
2. The Government's submissions
In
the Government's view, there had been no interference with the
applicant's right to the peaceful enjoyment of his possessions. The
plot bought by the applicant's father and subsequently acquired by
the applicant had originally been designated for agricultural
purposes and could have been used accordingly. Even if no public
investment had been planned, the applicant would not automatically
have had the right to use his plot for housing construction, or to
demand that it be designated for such purposes (see Allan
Jacobsson v. Sweden, no. 18/1987/141/195, 25 October 1989,
§ 60; Matti and Marianne Hiltunen against Finland
(dec.), no. 30337/96, 28 September 1999).
The
Government maintained that neither the provisions of Polish law nor
of Protocol No. 1 imposed on the authorities an obligation
to
change the character of use of land by individual owners. Under
Article 1 of Protocol No. 1 States had a right to enforce such laws
as they deemed necessary to control the use of property in accordance
with the general interest. The applicant had acquired a property
designated for agricultural use and should have been aware that his
ownership right had not encompassed the right to build a house on
this land. He had been entitled to use or dispose of his plot only
within the limits prescribed by the law, the principles of reasonable
social co-operation (zasady współżycia
społecznego) and the socio-economic purpose of ownership
(społeczno-gospodarcze przeznaczenie prawa).
As
regards the necessity of the alleged interference, the Government
maintained that the measures applied in the applicant's case had
pursued the important general interest of facilitating town planning.
The road that had been planned on the applicant's property had been
intended to resolve the communications problems of the municipality
of Gdańsk. Furthermore, the Government argued that, even in the
absence of transitional regulations relating to the old local
development plans, section 36 of the 1994 had not been applicable
with respect to the applicant as the necessary prerequisites
specified in it had not been met in the present case. There had been
important general interest considerations, namely the need to protect
the budgetary viability of the newly-created local governments and of
the State, which had fully justified the application of the
transitional regime to the old local development plans (adopted prior
to 1 January 1995).
The
process of general transformation of the system of local planning had
been successfully completed with the annulment of all local
development plans adopted prior to 1 January 1995 which took effect
on 31 December 2003. The applicant's situation had significantly
improved as a result of the entry into force of the 2003 Act since,
subsequently, it was open to him to apply for planning permission in
respect of the property that had been initially designated for
agricultural purposes. However, he had not availed himself of that
possibility.
The
Government were of the opinion that in the present case the
individual burden imposed on the applicant had not been excessive. He
had not been prevented from either selling or leasing his property.
It had remained possible for him to continue to use the property for
agricultural purposes in the same way he had used it prior to the
entry into force of the 1994 Act. Hence, the present case was
different from the situation in which the Court had found a violation
of Article 1 of Protocol No. 1 to the Convention in the case of
Immobiliare Saffi v. Italy ([GC], no. 22774/93, ECHR
1999 V) in that the applicant could freely enjoy his
ownership. The Government underlined that the applicant had already
possessed a house on his plot. In addition, he had had other
temporary possibilities for using his property in a more profitable
manner; however he had not pursued them.
In
conclusion, the Government averred that the measures applied in the
present case could not be considered disproportionate to the
requirements of the municipality's legitimate aim of planning the
area, having regard to the margin of appreciation under Article 1 of
Protocol No. 1.
3. The Court's assessment
(a) General principles
The Court reiterates that Article 1 of Protocol No. 1 contains three
distinct rules. They have been described thus (in James and Others
v. the United Kingdom, judgment of 21 February 1986, Series A no.
98, pp. 29 30, § 37; see also, among many other
authorities, Belvedere Alberghiera S.r.l. v. Italy, no.
31524/96, § 51, ECHR 2000-VI):
“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.”
(b) Whether there was interference with
the peaceful enjoyment of “possessions”
The
Court must first examine whether there was interference with the
peaceful enjoyment of the applicant's possessions.
The
Court observes that the applicant's situation was affected by the
local land development plan adopted by the municipality of Gdańsk
in 1988 because it provided for the future expropriation of his land.
The Court emphasises that the applicant's situation was adversely
affected not so much by the mere prospect of expropriation, but by
the fact that this future expropriation was to be carried out at an
undetermined point in time and in the absence of any indication, even
approximate, as to its future date (Skibińscy, cited
above, § 77).
In
that connection, the Court further notes that before the enactment of
the 1994 Act the local authorities did not have any obligation to
compensate owners of plots to be expropriated in the future. 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 on 1 January
1995. Consequently, they were not applicable to the applicant's
situation as the plan for the municipality had been adopted in 1988.
The
Court further notes that the applicant was informed by the
municipality that under the applicable legislation the municipality
was not obliged to acquire his property which was to be expropriated
in the future pursuant to the 1988 land development plan which was in
force at that time (see paragraph 19 above). Furthermore, the
applicant had no right to compensation for the fact that he could not
freely use and dispose of his property in the light of the future
expropriation.
The
Government argued that the applicant could continue using his
property for agricultural purposes. However, the Court notes that
that possibility was rather illusory since the applicant was facing
expropriation at an undetermined date in the future. Moreover, the
viability of such use was open to doubt given that with the
enlargement of the city the property was located near built-up areas.
To
sum up, the measures complained of, taken as a whole, although in law
they left intact the applicant's right to continue to use and dispose
of his possessions, nevertheless in practice they significantly
reduced the effective exercise of that right. The applicant's
property was to be expropriated at some undetermined future date,
without there being any provision for immediate compensation under
the applicable laws. The applicant's right of property thus became
precarious and defeasible (mutatis mutandis, Sporrong and
Lönnroth, cited above, §§ 58-60; Skibińscy,
cited above, § 79).
In
this respect the Court notes that those limitations on the
applicant's property rights came to an end on 31 December 2003. On
the latter date the validity of the local development plan at issue
expired pursuant to the 2003 Act. Consequently, after 31 December
2003 the applicant could pursue the development of his property, in
particular by applying for planning permission under section 59 of
the 2003 Act.
The
Court is therefore of the view that there was interference with the
peaceful enjoyment of the applicant's possessions. The Court further
considers that the measures complained of did not amount to
expropriation. Likewise, they cannot be regarded as control of use of
property. Accordingly, the interference falls to be examined under
the first sentence of Article 1 of Protocol No. 1 (James and
Others, cited above, § 37 and Skibińscy, cited
above, § 80).
(c) Whether the interference was “provided
for by law”
The
Court recalls 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).
The
Court observes that the applicant's situation was affected by future
expropriation for the purposes of the land development plan and by
the lack of any effective entitlement to compensation.
The
Court notes that the first two measures were taken on the basis of
the 1994 Act. As to the applicant's situation regarding compensation,
it was affected by the operation of specific provisions of that Act
which, by prolonging the validity of the local development plan under
the amendments to the Local Planning Act 1994, effectively deprived
him of any possibility of obtaining redress for those measures (see
paragraphs 33-35 above). The interference complained of
was therefore “provided by law” within the meaning of
Article 1 of Protocol No. 1 to the Convention.
(d) Whether the interference was “in
the general interest”
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, the national
authorities are in principle better placed than the 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 initial assessment as to the
existence of a problem of public concern warranting measures
interfering with the peaceful enjoyment of possessions (see Jahn
and Others v. Germany [GC], nos. 46720/99, 72203/01 and
72552/01, § 91, ECHR 2005 ...; 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).
102. 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).
(e) Proportionality of the interference
The
Court must examine in particular whether an interference with the
peaceful enjoyment of possessions strikes the requisite fair balance
between the demands of the general interest of the public and the
requirements of the protection of the individual's fundamental
rights, or whether it imposes a disproportionate and excessive burden
on the applicant (see, among many other authorities, Jahn and
Others [GC], cited above, § 93).
The
Court considers that in the area of land
development and town planning the Contracting States should
enjoy a wide margin of appreciation in order to implement their town
and country planning policies (see
Buckley v. the United Kingdom, judgment of 25 September 1996,
Reports of Judgments and Decisions 1996 IV, p. ...,
§ 75); Terazzi S.r.l. and Elia S.r.l., cited
above). Nevertheless, in the exercise of its power of review the
Court must determine whether the requisite balance was maintained in
a manner consonant with the applicant's right of property (see,
mutatis mutandis, Sporrong and Lönnroth, cited
above, § 69).
In
that connection, the Court first observes that in 1988 the
municipality of Gdańsk adopted a local land development plan.
Under this plan, the applicant's property was designated for future
expropriation, with a view to the construction of a road. However,
the Court observes that the plan did not provide any timeframe within
which the road would be constructed. Further, in 2000, twelve years
after the 1988 plan had been adopted, the Mayor of Gdańsk
informed the applicant that the construction of the road would not be
budgeted for before 2004.
As
a result, the applicant was threatened with expropriation at an
undetermined point in time and he did not have any effective
entitlement to compensation in the period up until 31 December 2003.
This was repeatedly confirmed by the municipal authorities, replying
to the applicant's requests for acquisition of his land (see
paragraph 19 above). The Court emphasises that this situation lasted
for a long period of time: from 1988 when the plan was adopted until
31 December 2003, when this plan eventually expired under the
provisions of the 2003 Act.
The
Court observes that the successive amendments to the 1994 Act
had a double effect: they extended the validity of the local plan and
also prolonged the period during which the applicant could not claim
any compensation from the municipality.
In
this connection, the Court notes the Government's argument that the
provisions of the 1994 Act were intended to improve the situation of
owners, in that this Act introduced a right to compensation which
previously had never existed. They also pointed out the temporary
nature of the prolongations. 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 a right to
compensation was 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
measures, 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 31 December 2003 the applicant could not make any
claim for compensation against the municipality in respect of his
particular situation obtaining up to that date.
Lastly,
the Court notes that since July 2003, when the 2003 Act entered into
force, section 36 of that Act has granted a right to compensation to
owners who were restricted in the use of their property as a result
of the adoption of a new local development plan (see paragraph 37
above). Such claims can be pursued before civil courts. 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 applicant, before its
entry into force, as a result of restrictions originating in land
development plans adopted in the past. Consequently, the entry into
force of the 2003 Act did not alter the applicant's situation.
The
Court notes the Government's argument that by adopting these
provisions the legislature had given the local government authorities
time to adjust land development plans to the new needs of the
municipalities, without the latter being obliged to compensate
individual owners for the consequences of local development plans
adopted before 1989, when the transformation of the legal and
economic system of the State had been undertaken. 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 Contracting States
from the obligations stemming from the Convention or its Protocols
(see Schirmer v. Poland, no. 68880/01, 21 September 2004,
§ 38 and Skibińscy, cited above, § 96).
Lastly,
the Court notes that the applicant's request for acquisition of his
property by the municipality was refused in 2000. In the refusal the
authorities essentially referred to the provisions of the land
development plan adopted in 1988. However, at the time when the
applicant made his request there were no good grounds on which to
believe that the 1988 plan would be implemented promptly. As a
result, the de facto blocking of any construction on the
applicant's property until 31 December 2003 did not serve any
immediate or medium-term purpose in the interest of the community.
In
respect of the period after 31 December 2003 the Court notes that the
1988 local development plan which designated the applicant's plot for
the construction of a road expired on the former date. It further
observes that the 2003 Act provides for a possibility, subject to
certain conditions, of applying for planning permission in the
absence of a local development plan. It would appear that this
possibility is open to the applicant.
In
the Court's view, given that it was uncertain whether the land
development plan would be implemented in the reasonably near future,
this state of affairs, seen as a whole, disclosed a lack of
sufficient diligence in weighing the interests of the owners against
the planning needs of the municipality.
Having
regard to the above considerations, the Court is of the view that a
fair balance was not struck between the competing general and
individual interests and that the applicant had to bear an excessive
individual burden in respect of the period up until 31 December 2003
(Skibińscy, cited above, § 97 and Rosiński,
cited above, § 88).
There
has accordingly been a violation of Article 1 of Protocol No. 1
to the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION
WITH ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
The
applicant also alleged that he had been a victim of discrimination
contrary to Article 14 of the Convention taken in conjunction with
Article 1 of Protocol No. 1. He referred to repeated prolongations of
the validity of the old local development plan which had prevented
him from making use of the measures provided under section 36 of the
1994 Act.
The
Court notes that this complaint is linked to the complaint examined
above and must, therefore, likewise be declared admissible.
Having regard to its findings relating to Article 1
of Protocol No. 1 to the Convention (see paragraph 115 above), the
Court does not find it necessary to examine whether, in this case,
there has been a violation of Article 14 of the Convention taken in
conjunction with Article 1 of Protocol No. 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The
applicant claimed 140,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
The
Government observed that the applicant had not specified his claim
and had not adduced any evidence to the effect that he had sustained
any damage.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged and therefore rejects this claim. On
the other hand, it considers that
the applicant has undoubtedly suffered non-pecuniary damage as a
result of the violation found above. It is of the view that the
breach of Article 1 of Protocol No. 1 caused the applicant distress
and frustration on account of the prolonged precariousness of his
ownership of his property, which the mere finding of a violation
cannot adequately compensate. Having regard to its case-law in
similar cases (see, Rosiński, cited above, §
93) and ruling on an equitable
basis, the Court awards the applicant EUR 5,000 under the head of
non-pecuniary damage.
B. Costs and expenses
The
applicant made no claim for costs and expenses.
C. Default interest
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
Declares the application admissible;
Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention in respect of the period up
until 31 December 2003;
Holds that there is no need to examine the
complaint under Article 14 of the Convention taken in conjunction
with Article 1 of Protocol No. 1;
Holds
(a) that
the respondent State is to pay the applicant (Mr Wiesław
Pietrzak), within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 5,000 (five thousand euros) in respect of
non-pecuniary damage, 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;
(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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 8 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
