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BUCZKIEWICZ v. POLAND - 10446/03 [2008] ECHR 176 (26 February 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/176.html
Cite as:
[2008] ECHR 176
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FOURTH
SECTION
CASE OF BUCZKIEWICZ v. POLAND
(Application
no. 10446/03)
JUDGMENT
STRASBOURG
26
February 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 Buczkiewicz v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza,
President,
Josep Casadevall,
Stanislav
Pavlovschi,
Lech Garlicki,
Ljiljana
Mijović,
Ján Šikuta,
Päivi
Hirvelä, judges,
and Lawrence Early, Section
Registrar,
Having
deliberated in private on 29 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 10446/03) against the
Republic of Poland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Polish nationals,
Ms Wanda Buczkiewicz and Mr Antoni Buczkiewicz (“the
applicants”), on 14 March 2003
The
applicants, who had been granted legal aid, were represented by Mr P.
Sendecki, a lawyer practising in Lublin. 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 possessions 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 to any
compensation for the interference with their ownership rights
resulting from the future expropriation.
On
20 October 2006 the President of the Fourth Section of the Court
decided to give notice of the application to the Government. Under
the provisions of Article 29 § 3 of the Convention, it
was decided to examine the merits of the application at the same time
as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants' legal predecessors owned a plot of land with a surface
area of 3,625 sq. m. located in the municipality of Warszawa Włochy,
listed in a land register under entry no. 29552. In 1993 the
applicants inherited this property as co owners. The property
was designated, by an administrative decision given on an
undetermined date, apparently prior to 1993, for agricultural use.
By
a letter of 30 October 1991 the first applicant was informed by the
Warszawa Ochota Muncipal Office that the starting date for the
development foreseen by the draft land development plan for the
municipality had not yet been yet fixed, but that it was most likely
that work would begin after 1995.
According
to the relevant local development plan, which was adopted in 1992 and
later amended in 1995, the entire property had been designated for
construction of a major roadway, connecting the municipality with
Warsaw, and various commercial buildings. As a result, the applicants
could continue to use their property for gardening or agricultural
purposes, but could not carry out any development. A number of owners
lodged objections against this plan, which were ultimately dismissed
by the Supreme Administrative Court.
In
June 1992 the applicants requested the municipality to specify the
use to which their property would be put under the land development
plan and to indicate time limits for the works to begin. They
also requested the municipality to acquire the property from them.
This offer apparently remained unanswered.
On
13 May 1999 the applicants made an enquiry with the municipality as
to the development plans in respect of their property.
In
a reply of 14 June 1999 they were informed that their property
remained covered by the development plan adopted in 1992 under which
it was designated for construction of a roadway and for various
commercial buildings.
On
12 November 2001 the applicants renewed their request for the
municipality to acquire their plot. This was refused on 21 December
2001.
On
27 December 2001 the applicants complained to the municipal
authorities that the local land development plan had not been
implemented and that no time frame for its implementation had
been foreseen, even tentatively. As a result, they could not carry
out any development of the property and had been left in a prolonged
state of uncertainty as to its future fate. It could not be used for
leisure purposes as it was situated in a rather unattractive area.
They had been contacted by many potential buyers who, having learnt
about the lack of possibilities to develop the land immediately, had
lost interest in buying the property. Their requests that the
municipality acquire their land had been unsuccessful. As a result of
the legal situation of the property, their ownership had been
stripped of all economic value.
On
7 January 2002 the applicants were informed by the Municipal Office
that their land would be acquired in the future by a company which
would construct the roadway foreseen under the 1992 development plan.
On
11 April 2002 the applicants requested, for the first time, that an
initial approval of a development project (decyzja o warunkach
zabudowy) be issued for the construction of a small house on
their land.
In
a reply of 20 May 2002 the Warszawa Włochy Municipal Office
informed them that such a decision could not be issued as it would
not be compatible with the local land development plan adopted in
1992.
In
a further letter of 2 August 2002 the Warszawa Włochy
Municipal Office informed the applicants that the mere fact that
their property had been foreseen for future expropriation for the
purposes of the construction of the roadway did not entail for the
municipality an obligation to acquire their land from them.
Accordingly, there were no immediate plans to purchase the properties
designated in the local development plan for the construction of the
roadway. They were also informed that a new land development plan was
being prepared by the municipality.
On
27 March 2003 the applicants complained to the Supreme Administrative
Court about the local administration's failure to adopt a new land
development plan. They referred to the restrictions which the 1992
plan imposed on the exercise of their ownership.
On
16 April 2003 the Supreme Administrative Court rejected their
complaint, holding that a complaint against the administration's
failure to act could not be made in respect of proceedings concerning
elaboration of local land development plans.
On
31 December 2003 the relevant local development plan expired,
pursuant to the Local Planning Act 2003 (see paragraph
23 below). Apparently to date no new land development
plan has been adopted by the municipality.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Changes in land development legislation during the period
concerned
From
1984 to 1 January 1995 questions of land development were governed by
the Local Planning Act of 12 July 1984.
On
7 July 1994 a new Local Planning Act was enacted. It entered into
force on 1 January 1995.
On
21 December 2001 Parliament passed a law amending the Local Planning
Act 1994.
On
27 March 2003 a new Local Planning Act was enacted which repealed the
1994 Act.
Under
the Local Planning Act of 12 July 1984 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.
Section
36 of the Local Planning Act enacted in 1994 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 Act, these obligations
and the corresponding claims of the owners applied only to plans
adopted after the Act had entered into force, i.e. to plans adopted
by local municipalities 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 Local Planning Act 1994 which extended until the
end of 2002 the validity of the land development plans adopted before
1 January 1995.
Under
section 87 of the 2003 Act (see paragraph 23 above), 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 (see paragraph
25 above), were in essence maintained by the 2003 Act. Pursuant to
section 36 of that 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 has become impossible or has been restricted, it
is open to the owner to claim compensation from the municipality, or
to request the municipality to buy the plot. Any litigation which may
arise in this respect between municipalities and owners can 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.
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).
B. Judgment of the Constitutional Court
In
its judgment of 5 December 1995 (K 6/95), the Constitutional Court
examined the request submitted to it by the Ombudsman to determine
the compatibility with the Constitution of section 68 § 1
of the Land Planning Act 1994 insofar as it excluded the application
of section 36 of that Act to land development plans adopted
before 31 December 1994. The court referred to its established
case-law to the effect that ownership could not be regarded as ius
infinitivum. Consequently, its exercise was normally 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 ownership. 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
ownership that it could be regarded as being incompatible with the
constitutional protection of ownership.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
The
applicants complained that their right to the peaceful enjoyment of
their possessions had been breached. They referred to Article 1
of Protocol No. 1 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.”
A. Admissibility
1. Incompatibility ratione temporis with the provisions of the
Convention
34. The Government
submitted that the alleged violation of the applicants' property
rights had originated in the land development plan adopted in 1992.
Moreover, the applicants' land had already been
designated for agricultural purposes before they acquired a legal
title thereto in 1993. The
application was therefore incompatible ratione
temporis with the
provisions of the Convention because the alleged violation had taken
place before 10 October 1994, the date on which Poland had
ratified Protocol No. 1 to the Convention.
35. The
applicants disagreed. They argued that, in the context
of a continuing violation of the right to the peaceful enjoyment of
one's possessions, the events which had taken place before the date
of ratification of Protocol No. 1 to the Convention were to be taken
into account as a background relevant to the assessment of the
current situation. The applicants referred to the Court's reasoning
in a case in which it had held that legislation which had been
adopted prior to the entry into force of Protocol No. 1 had
created for the applicant a continuing situation in that it had
determined her legal situation and that this legal situation remained
in force after the ratification (Rudzińska v. Poland
(dec.), no. 45223/99, 7 September 1999). In addition, the
applicants referred to the Court's judgment in the case of Rosiński
v. Poland (no. 17373/02, 17 July 2007), concerning
similar facts, where the Court had accepted that it had temporal
jurisdiction.
The Court's jurisdiction ratione temporis
covers only the period after the date of ratification of the
Convention and its Protocols by the respondent State. After
ratification, the State's acts 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 the ratification of Protocol
No. 1 by Poland.
It may, however, have regard to the facts prior to ratification
inasmuch as they could be considered to have created a continuous
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 ...).
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 (see paragraphs 20 31
above). The Government's plea of lack of jurisdiction ratione
temporis must accordingly be rejected.
2. Incompatibility ratione materiae with the provisions of the
Convention
The
Government submitted that in 1993 the applicants had acquired
agricultural land, with no construction rights. Hence, they could not
have had any legitimate expectation that in the future they would be
allowed to use it for construction purposes. They had never been
deprived of such a right. Under Polish law the authorities could not
be required to permit agricultural land to be designated for
construction purposes. In the present case the applicants could have
had no more than a mere hope that they would acquire such a right,
but it could not be said that they had ever had a legitimate
expectation to be able to build on their land.
The
applicants disagreed and emphasised that as a result of the
restrictions originating in the land development plan, seen as a
whole, an effective exercise of their ownership, guaranteed by the
applicable provisions of civil law, had been seriously limited.
The
Court notes the Government's argument that under applicable laws the
applicants had no right to build on the land concerned. However, it
observes that the essence of the applicants' complaint relates to a
set of de facto restrictions on the exercise of their
ownership, with particular emphasis on the lack of any right to
compensation for the future expropriation of their land (see
paragraph 59 below), rather than on the mere impossibility to
implement any construction projects which they might have had. The
Court further notes that this state of affairs lasted for over eight
years. It therefore rejects the Government's objection.
3. Exhaustion of domestic remedies
The
Government argued that if the applicants had considered that the
provisions on which the domestic decisions in their case had been
based were incompatible with the Constitution, it would have been
open to them to challenge these provisions by lodging a
constitutional complaint under Article 79 of the Constitution.
They should have lodged such a complaint against a judgment of the
administrative court which the applicants should have sought in order
to have the local land development plan amended.
The
Government further argued that the applicants should have lodged a
civil action with a court, claiming damages against either the State
Treasury or the municipality for the interference with their right to
the peaceful enjoyment of their possessions. Had a civil court found
against them, they could subsequently have lodged a constitutional
complaint with the Constitutional Court.
The applicants disagreed. They submitted that they had
tried to remedy their situation by submitting various requests to the
municipality in 1992, 2001 and 2002. In April 2002 they requested to
be granted building permission. In reply, the municipality informed
them, by way of a letter, that such permission would have been
incompatible with the land development plan. However, in the absence
of a formal refusal in the form of an administrative decision, the
applicants could not lodge a formal appeal and pursue their
application before the Supreme Administrative Court and, ultimately,
to the Constitutional Court.
They further submitted that the provisions of civil
law on civil liability of public authorities had not been applicable
to their case. The Local Planning Act 1994 had expressly excluded
civil liability of public authorities for claims originating from
interferences with property rights in connection with future
expropriations in the context of implementation of land development
plans. They concluded that they had not had at their disposal any
compensatory remedies that would have been available and offered
reasonable prospects of success not only in theory, but also in
practice.
The Court recalls that the object of the rule on
exhaustion of domestic remedies is to allow the national authorities
(primarily the judicial authorities) to address the allegation made
of violation of a Convention right and, where appropriate, to afford
redress before that allegation is submitted to the Court (Kudła
v. Poland
[GC], no. 30210/96, § 152, ECHR 2000-XI). The
Court further reiterates that Article 35 of the Convention,
which sets out the rule on exhaustion of domestic remedies, provides
for a distribution of the burden
of proof.
It is incumbent on the Government claiming non exhaustion to
satisfy the Court that the remedy was an effective one available in
theory and in practice at the relevant time, that is to say, that it
was accessible, was one which was capable of providing redress in
respect of the applicant's complaints and offered reasonable
prospects of success (Selmouni v. France [GC],
no. 25803/94, § 76, ECHR 1999-V and Mifsud
v. France (dec.) [GC], no. 57220/00, ECHR 2002 VIII).
The
Court has already dealt with the question of the effectiveness of the
Polish constitutional complaint (Szott-Medyńska
v. Poland (dec.), no. 47414/99,
9 October 2003; Wypych v. Poland
(dec.), no. 2428/05,
25 October 2005). It examined its characteristics and in
particular found that the constitutional complaint was an effective
remedy for the purposes of Article 35 § 1 of the
Convention in situations where the alleged violation of the
Convention resulted from the direct application of a legal provision
considered by the complainant to be unconstitutional.
However,
in the instant case, the Court notes that the essence of the
applicants' complaint is that, as a result of the expropriation to be
carried out at a future, undetermined date:
-
they were not entitled to compensation for the protracted period of
uncertainty, which was twice extended by the legislator;
-
they were not entitled to obtain land to replace the plot designated
for expropriation;
-
they were unable to oblige the municipality to acquire their property
before the planned expropriation; and lastly
-
they were prevented from pursuing any development projects on that
property.
The Court further notes that the provisions of the Local Planning Act
1994 were examined by the Constitutional Court in 1995. That court
held that they were compatible with the obligation of the State to
protect private property laid down in the Constitution of 1952 (see
paragraph 32 above).
The
Court observes that the applicants' requests to have their property
acquired by the municipality were refused, but only by informal
letters (see paragraphs 14 and 15 above). Hence, the authorities did
not issue binding administrative decisions against which the
applicants could have appealed to the administrative court. It has
not been shown or argued that the applicants could oblige them to do
so. Therefore the Court is of the view that it has not been shown
that in the circumstances of the case the way to the Constitutional
Court was open to them.
Insofar
as the Government argued that the applicants should have claimed
compensation before a civil court, the Court observes that under the
provisions of the Land Planning Act 1994 the liability of public
authorities for any damage which might have its origin in
expropriation planned in the future was excluded. Hence, this remedy
did not offer any prospects of success. It further notes that the
Government have not adduced any case law of the domestic courts
which would have demonstrated that such a claim, in the circumstances
arising against the background of the 1994 Act and the successive
land planning legislation, offered any prospects of success.
Having
regard to the above, the Court dismisses the Government's objection
concerning domestic remedies. Furthermore, it notes that the
application is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The parties' submissions
The Government first submitted that there had been no interference
with the applicants' right to the peaceful enjoyment of their
possessions. The plot at issue had been designated for agricultural
purposes before the applicants acquired it. They had never had an
unconditional right or a legitimate expectation to be able to use
their property for housing purposes. Even if there had been no public
investment planned for their property, the applicants would not
automatically have had the right to build on it, or to demand its
designation for such purposes (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). In 1993, when the
applicants had inherited the land, the planned course of the new
roadway had already been known.
The Government argued that neither the provisions of
Polish law nor of Protocol No. 1 imposed on the Polish
authorities an obligation to change the character of the 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 applicants had bought a property designated for agricultural use
and should have been aware that their ownership right had not
encompassed the right to build a house there. They had been entitled
to use or dispose of their plot only within the limits prescribed by
the law, the principles of reasonable social co operation and
the socio-economic purpose of ownership. The applicants' situation
was therefore different from that in the case of Sporrong and
Lönnroth v. Sweden (judgment of 23 September 1982,
Series A no. 52, § 11) in which restrictions were
imposed on property in the centre of the capital city. The
applicants' ownership had therefore not become precarious.
54. The
Government submitted that the measures complained of had pursued the
legitimate aim of securing land for the implementation of the local
development plan. The impugned measures had served the general
interest as they had been intended to resolve the communication and
environmental problems of the municipality. As the
Court acknowledged on many occasions, such matters
corresponded to the general interest of the community and the
measures taken in the present case had been dictated by the difficult
situation concerning the communications network in the municipality.
55. The
Government argued that by adopting in 1994 the provisions of the
Local Planning Act, insofar as it conferred on the owners to be
expropriated in the future an entitlement to obtain compensation, the
legislature had given the local authorities time to adjust land
development plans to the new needs of the municipalities. However,
the latter were not 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
Government argued that the procedure for the adoption of the
development plan had sufficiently involved the local community. All
stages of the procedure had been public and the inhabitants of the
municipality, including the applicants, had been able to comment on
the draft plans.
The
Government were of the opinion that in the present case the
individual burden imposed on the applicants had not been excessive.
They had not been prevented from either selling or leasing their
property. It had remained possible for them to continue using the
property for agricultural purposes in the same way in which their
parents had apparently been using it prior to the entry into force of
the 1994 Act. Therefore the special compensatory entitlements
provided for by that Act did not in any event apply to the
applicants.
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 Immobiliare Saffi v. Italy ([GC],
no. 22774/93, ECHR 1999 V) as the applicants could fully
enjoy their ownership rights. The authorities could not be held
responsible for the fact that the value of the land had decreased as
a result of the land development plan having been adopted in 1992. In
any event, the property situated in the vicinity of an airport was
not attractive to prospective buyers. The applicants had not shown
that they had sought to lease the property to third parties or that
they envisaged any other economically viable manner in which the
property could be used until the expropriation.
The
Government concluded that, in the circumstances of the case, a fair
balance had been struck between the applicants' individual rights on
the one hand and the public interest of the local community on the
other.
The applicants were of the view that the circumstances
of the case amounted to a breach of their right to the peaceful
enjoyment of their possessions. Their land had been designated for
expropriation at an undetermined future date and this state of
affairs had lasted for a long period of time, despite the fact that
no funds had been available throughout this period to finance the
planned investment. The public authorities, while they were obviously
entitled to take appropriate measures to implement their spatial
planning policies, should have also eliminated uncertainty concerning
the future fate of the properties affected by such policies. The
applicants stressed that uncertainty – whether originating from
legislative or administrative sources or arising from practices
applied by the authorities – is a factor to be taken into
account in assessing the State's conduct. Indeed, where an issue in
the general interest is at stake, it is incumbent on the public
authorities to act
in good
time and in an
appropriate and consistent manner (see Vasilescu v. Romania,
judgment of 22 May 1998, Reports of Judgments and Decisions
1998-III, p. 1078, § 51; Beyeler v. Italy
[GC], no. 33202/96, §§ 110 in fine, 114
and 120 in fine, ECHR 2000 I; Sovtransavto Holding
v. Ukraine, no. 48553/99, §§ 97 98,
ECHR 2002 VII).
As
a result of the authorities' failure to address their situation
correctly, they could not freely use their property for purposes
other than agricultural and could not seek requalification of their
land. Moreover, they had not been entitled to any compensation for
this interference with their rights. The applicants referred to the
Court's finding of violations of Article 1 of Protocol No. 1
made in the aforementioned case of Rosiński v. Poland.
2. The Court's assessment
(i) 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 applicants' possessions. The Court observes
that the applicants' situation was affected by the local land
development plan adopted by the municipality in 1992 because it
provided for the future expropriation of their land. The Court
emphasises that the applicants were 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 date.
In
that connection, the Court further observes that before the enactment
of the Local Planning Act in 1994 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 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 had been adopted in 1992.
The
Court notes the Government's argument that these compensation
entitlements were available only to persons who could show that the
future expropriation affected the current use to which their property
could be put. In the Government's view, the applicants could not, in
any event, avail themselves of such entitlements, because the future
expropriation did not affect the agricultural use of the property
concerned. However, the Court observes that, even assuming that this
argument is correct, it is tantamount to acknowledging that the
applicants did not have any entitlements to compensation for the
future expropriation, either before the Local Planning Act 1994 was
adopted, or afterwards.
The
Court further notes that the municipality repeatedly informed the
applicants that it was not obliged to acquire their property which
was to be expropriated in the future.
Consequently,
the Court is of the view that the measures complained of, taken as a
whole, in law left intact the applicants' right to continue to use
and dispose of their possessions. Nevertheless, in practice, they
significantly reduced the practical and effective exercise of that
right. The Court considers that the prospect of the future
expropriation could negatively affect the market value of the
property. It also notes that it is reasonable to accept that a
request to have the land reclassified so that it could be used for
construction purposes was, in these circumstances, bound to fail.
Likewise, the applicants could not reasonably expect that any
development projects on their property would be accepted by the
municipality.
Their
property rights thus became precarious (mutatis mutandis,
Sporrong and Lönnroth v. Sweden, cited above,
§§ 58-60; Skibińscy v. Poland,
no. 52589/99, 14 November 2006, § 79; Skrzyński
v. Poland, no. 38672/02, 6 September 2007, § 74,
Rosiński v. Poland, cited above, § 72).
The Court therefore concludes that there was indeed an interference
with the peaceful enjoyment of the applicants' possessions. The Court
further considers that the measures complained of did not amount to
expropriation. Likewise, they cannot be regarded as a control of use
of property. Accordingly, the interference falls to be examined under
the first sentence of Article 1 of Protocol No. 1 (cf.
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).
(ii) Whether the interference was “provided for
by law”
66. The
Court notes that it is not in dispute between the parties that the
interference with the applicants' property rights was based on the
Local Planning Act 1994 and subsequent legislation. The interference
complained of was therefore “provided by law” within the
meaning of Article 1 of Protocol No. 1 to the Convention
(see the aforementioned Skibińscy
v. Poland
judgment, § 84).
(iii) Whether the interference was “in the
general interest”
Any
interference with a right of property can only be justified 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 Terazzi S.r.l. v. Italy, no. 27265/95,
§ 85, 17 October 2002; Elia S.r.l. v. Italy,
no. 37710/97, § 77, ECHR 2001 IX).
68. 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 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;
Chapman v. the United Kingdom, no. 27238/95, § 82,
ECHR 2001 I).
(iv) Proportionality of the interference
The
Court must next examine 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 v. Germany [GC], nos. 46720/99, 72203/01 and
72552/01, § 93, ECHR 2005 VI).
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
policies (see
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 to property (see, mutatis
mutandis, Sporrong and Lönnroth, cited above, § 69).
In
that connection, the Court first observes that in 1992 the
municipality adopted the land development plan. Under this plan, the
applicants' property was designated for future expropriation
with a view to the construction of a road. However, that plan did not
have any timeframe for its implementation. As a result,
the applicants were threatened with expropriation at an undetermined
point in time. In addition, they did not have any effective
entitlement to compensation in the meantime. The Court emphasises
that this situation lasted for a long period: from 1992 when the plan
was adopted until 31 December 2003, when this plan eventually
expired under the provisions of the Local Planning Act 2003.
The
Court observes that the successive amendments to the Local Planning
Act 1994 had a double effect: they extended the validity of the local
plan and also prolonged the period during which owners to be
expropriated in the future 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, because it introduced for them a right to compensation which
had not previously existed. They also pointed out the temporary
nature of the prolongations. However, the Court cannot overlook the
fact that, although the legislature introduced compensatory
provisions into the law, at the same time it excluded their
application in respect of plans adopted before 1 January 1995.
Moreover, this situation was prolonged three times, for an overall
period of nine years. Consequently, until July 2003, the date of
entry into force of the Local Planning Act 2003, the applicant could
not make any claim for compensation against the municipality.
The
Court notes that compensation claims of owners who were affected by
future expropriations can be pursued before civil courts. However,
this provision is only applicable to situations arising after the
2003 Act had entered into force in respect of new local land
development plans. It has not been argued or shown that the 2003 Act,
or any other legislation, provides for any retroactive right to
compensation for the prejudice suffered by the applicants before its
entry into force, as a result of the restrictions originating in
earlier development plans. Consequently, even assuming that the
provisions on compensation contained in this Act were applicable to
the applicants' situation (an assumption which the Government, in any
event, refute; see paragraph 63 above), the entry into force of the
2003 Act did not alter their situation.
The
Court notes the Government's argument that, by adopting such
provisions, the legislature had given the local authorities time to
adjust land development plans to the new needs of the municipalities.
The Court is aware that the problems arising from the enactment of 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).
76. Finally,
the Court notes that the applicants' request for an initial approval
of a development project was refused in 2001 (see paragraphs 14 15
above). In the refusal the authorities essentially referred to the
provisions of the development plan. However, when the applicants
requested that approval, there were no sound grounds on which to
believe that the land development plan adopted in 1992 would be
implemented promptly. As a result, the de facto blocking of
any construction on the property did not serve any immediate or
medium-term purpose in the interests of the community.
In
the Court's view, given that it was uncertain when the land
development plan adopted in 1992 would be implemented, and in the
absence of any reasonable timeframe, this state of affairs, seen as a
whole, failed to strike the requisite fair balance between the
competing general and individual interests. Consequently, the
applicants were required to bear an excessive individual burden (see
Skibińscy
v. Poland, cited
above, § 97; Skrzyński
v. Poland, cited
above, § 91, Rosiński
v. Poland, cited
above, § 88). There has accordingly been a violation
of Article 1 of Protocol No. 1 to the Convention.
II. 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
applicants claimed 100,000 (PLN) in respect of pecuniary and
non-pecuniary damage which they had sustained as a result of the
violation of their rights.
The
Government argued that the applicants' claim was exorbitant.
As
regards pecuniary damage, the Court observes that the applicants have
not quantified their
claims. Accordingly, the Court considers that there is no call to
award the applicants any sum on that account. At the same time, the
Court accepts that the applicants suffered some distress as a result
of the violations found and therefore awards to the applicants
jointly EUR 5,000 in respect of non-pecuniary damage, plus any
tax that may be chargeable on that amount.
B. Costs and expenses
The
applicants did not submit any claims in this respect. The Court,
accordingly, makes no award under this head.
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;
Holds
(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,
EUR 5,000 (five thousand euros) in respect of non-pecuniary damage,
to be converted into the 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 26 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
