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BARBARA WISNIEWSKA v. POLAND - 9072/02 [2011] ECHR 1981 (29 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1981.html
Cite as:
[2011] ECHR 1981
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FOURTH
SECTION
CASE OF
BARBARA WIŚNIEWSKA v. POLAND
(Application
no. 9072/02)
JUDGMENT
STRASBOURG
29
November 2011
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 Barbara Wiśniewska
v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
David
Thór Björgvinsson,
President,
Lech
Garlicki,
George
Nicolaou,
Päivi
Hirvelä,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
Vincent
A. De Gaetano,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 8 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 9072/02)
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 a
Polish national, Ms Barbara Wiśniewska (“the applicant”),
on 1 February 2002.
The
applicant was represented by Ms A. Zemke-Górecka, a lawyer
practising in Białystok. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
3. The
applicant alleged that a requisition order and the expropriation of
her land had been in breach of her right to the peaceful enjoyment of
her possessions.
On
12 June 2007 the Court decided to give notice of
the application to the Government.
It also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
In
1996 the Gdańsk Municipal Office issued an initial approval for
a development project on land owned by the applicant (decyzja o
warunkach zabudowy i zagospodarowania terenu) providing, on the
basis of a local land development plan adopted in 1993, for the
improvement and resurfacing of Słowacki Street and the
construction of a roadway. On 18 December 1997 the Gdańsk
Municipal Council adopted a local land development plan for the
construction of a road junction in the vicinity of the applicant’s
land, indicating that there was a pressing need to improve and widen
a road leading from the city centre to the airport. On 21 December
1999 the Gdańsk Municipal Office (Urząd Miejski)
issued another approval for the construction of the roadway, based on
the provisions of the local land development plan adopted on 18
December 1997.
On
29 March 2000 the Pomorze Governor approved a construction project
for the roadway.
A. Expropriation proceedings
The
applicant owned forty-three plots of a total surface of
4.77 hectares. In September 1999 an estimate of the value of
seven plots, covering 6,656 square metres, was prepared by expert
R.Ż. with a view to their expropriation. That expert assessed
the market value of the land at 479,919 Polish zlotys (PLN).
On
21 October 1999 a negotiation meeting was held at the Gdańsk
Municipal Office. The town offered PLN 479,912 as compensation for
plots nos. 47/30, 47/32, 47/34, 47/36, 55/7, 60/1 and 61, at PLN
70.08 per square metre, calculated on the basis of the September 1999
estimate. The applicant refused to accept this price and argued that
the market value of a square metre of similar land in the town was
approximately PLN 600.
In
February 2000 another expert, J.K., estimated the value of the
applicant’s properties at PLN 63.70 per square metre, based on
the agricultural character of the land. On 2 March 2000, referring to
that report, the Gdańsk Municipal Office, acting on behalf of
the Mayor of Gdańsk, fixed a two-month time-limit for the
applicant to conclude a contract for the sale of her land for the sum
of PLN 479,912. It informed her that if further negotiations failed,
expropriation proceedings would be instituted and the land would be
expropriated against payment of compensation in the amount of PLN
423,987.
On 26 April 2000 another negotiation meeting was held. The Municipal
Office proposed conditions identical to those proposed in October
1999. The applicant reiterated her position as to the price and
submitted that she would accept replacement property within the
limits of the municipality as compensation.
On
8 May 2000 expropriation proceedings were instituted.
On
29 May 2000 an administrative hearing was held in the Gdańsk
Municipal Office. The applicant proposed that the City should give
her PLN 300 per square metre for her land, but her offer was
rejected. The applicant again suggested that she should be given
other plots in exchange for her land, but that solution was rejected
on the ground that the City did not have any suitable plots at its
disposal.
In
June 2000 expert J.K. updated the estimate, having regard to the
passage of time and the increase in market prices. She assessed the
price of the applicant’s land at PLN 439,296. In the same
month, an expert commissioned by the applicant assessed the price of
the land at PLN 2,374,749.
On
27 June 2000 the Mayor of Gdańsk gave a decision by which the
seven plots referred to in paragraph 7 above were expropriated. The
amount of compensation for the land and the fence constructed on it
was fixed at PLN 465,537. It was to be paid within 14 days from the
date on which the expropriation decision became final. He observed
that the amount of the compensation had been fixed on the basis of an
estimate prepared by an expert, with reference to prices of similar
plots on the local real estate market in June 2000.
The
applicant appealed. She argued that the decision was in breach of
sections 128, 130 and 134 of the Land Administration Act 1997. She
submitted that it was based on the estimate drawn up in September
1999, which no longer reflected current prices of land. She referred
to the case law of the Supreme Administrative Court according to
which compensation for expropriated land should take into
consideration current local market prices for similar types of land
and, also, prices of such land sold by the municipality by way of
tender. She referred to a privately commissioned estimate prepared by
a certified expert (see paragraph 13 above), according to which the
price of 1 square metre of comparable land in Gdańsk at that
time was PLN 356.
On
25 January 2001 the Pomorze Regional Office, acting on behalf of the
Pomorze Governor, upheld the expropriation decision, noting that it
had been given in order to have the local land development plan
implemented. The expropriation was therefore in the public interest.
The negotiations between the parties had failed. Two estimates drawn
up for the purpose of the negotiations were consistent and indicated,
in the light of prices paid for properties of a similar character and
location, that the market value of the property concerned was PLN
60-70 for 1 square metre. In the circumstances, the decision was
lawful.
The
applicant appealed to the Supreme Administrative Court. She argued
that the price the municipality had offered during the negotiations
bore no reasonable relation to the market value of her land. The
municipality had refused to offer her replacement property, despite
the fact that at the time it had been selling numerous properties to
private buyers by way of tender.
At a
hearing held on 23 May 2001 the applicant applied for a stay of the
enforcement of the expropriation decision. The court refused, noting
that the enforcement of the decision had been stayed ex lege
because of the authorities’ failure to submit their reply to
the applicant’s appeal within the time-limit.
By a judgment of 25 July 2001 the Supreme
Administrative Court quashed the Governor’s decision. The court
observed that the modernisation of Słowacki Street was in the
public interest as it was a part of the No. 7 trunk road. It
further noted that in the light of the documents in the case file it
had not been shown beyond doubt that the expropriation of all of the
applicant’s designated plots had been necessary in order to
implement the road construction project. In their decisions the
authorities had failed to refer to the maps and plans prepared in
connection with the local land development plan and road construction
projects to show that the plots concerned were indeed covered by
those projects.
The
court further addressed the question of the compensation fixed by the
contested decision. It noted that the authorities, when holding the
administrative hearing on 29 May 2000, had failed to respect the
relevant procedural provisions. Under the provisions of Article 89 of
the Code of Administrative Procedure the purpose of an administrative
hearing was to ensure, in a situation where there was a discrepancy
between expert opinions as to compensation, that the experts were
questioned and the discrepancy elucidated. Furthermore, the parties
should have been given an opportunity to put questions to the experts
and to make oral statements before the administrative authority. No
such measures had been taken. The court noted that the hearing had
been held prior to the date on which the last expert opinion
concerning the compensation had been prepared. There was no proof in
the case file that this last opinion had ever been served on the
applicant.
The
judgment with its written reasons was served on the applicant’s
lawyer on 9 August 2001.
The
expropriation and compensation proceedings before the appellate
authority were later conducted again. The Pomorze Regional Office
informed the parties that the administrative hearing would be held
again and requested the Gdańsk Municipal Office to submit
further evidence as to the prices of similar properties. Ultimately
two hearings were held, on 3 September 2001 and 22 January 2002.
Three experts were questioned. The parties were invited to consult
the case file.
On
25 February 2002 the Pomorze Governor upheld the first instance
decision in its part concerning the expropriation. He fixed the
amount of compensation to be paid to the applicant at PLN 554,898. He
referred to the expert opinions prepared for the purposes of the
proceedings and explained which evidence and conclusions had been
considered credible. He reiterated that the land concerned was of an
agricultural nature.
Compensation
was paid to the applicant on 27 February 2002. She accepted it, but
observed that the amount was unsatisfactory. She subsequently
appealed, submitting that the method by which the compensation had
been fixed was to her detriment, that the second-instance authority
had failed to respect the guidance contained in the judgment of the
Supreme Administrative Court and that the amount of compensation did
not reasonably correspond to the value of the land.
On
31 May 2005 the Supreme Administrative Court quashed the contested
decision, finding that the method used to establish the value of the
expropriated land was not in compliance with the applicable legal
regulations. In particular, the expert opinion prepared by J.F.,
heavily relied on by the first-instance authority, was based on
prices applicable in June 2000. The proceedings were subsequently
conducted again. The Governor invited the parties to submit new
evidence and to consult the case file. Another expert was appointed
and submitted his evaluation report, assessing the value of the
applicant’s property at PLN 725,231.
On 28
April 2006 another administrative hearing was held before the
second-instance authority. A time-limit was fixed for the parties to
submit new evidence. Both the applicant and the Gdańsk Municipal
Office availed themselves of that right.
On
4 July 2006 the Governor issued a new decision. It upheld the
first-instance expropriation decision and increased the amount of
compensation to PLN 725,232, with reference to the new expert report.
On
2 August 2006 the applicant, represented by a lawyer, appealed,
submitting arguments similar to those on which she had relied in her
previous appeal.
On
3 August 2006 the applicant revoked the power of attorney given to
her lawyer.
On
29 September 2006 the Gdańsk Administrative Court rejected her
appeal, noting that the applicant had failed to pay court fees. This
decision was served on the applicant’s new lawyer on 18 October
2006.
On 22
October 2006 the applicant requested the court to grant her
retrospective leave to appeal out of time. She submitted that she had
dismissed one lawyer and retained another one during the appellate
proceedings. She had not been aware that the court fee should have
been paid.
On
29 December 2006 the Gdańsk Administrative Court refused to
grant the applicant retrospective leave to appeal out of time,
considering that she had failed to inform the court about the alleged
changes in her legal representation and to demonstrate that she had
not been at fault in failing to pay the court fee. The applicant’s
new lawyer appealed against that decision.
On
2 March 2007 the Supreme Administrative Court upheld the refusal to
grant the applicant leave to appeal out of time. It observed that the
applicant had failed to show that she had not been at fault in
neglecting to pay the court fee. She had informed the first-instance
court of her decision to revoke her first lawyer’s power to act
on her behalf on 24 October 2004. Under the applicable
procedural provisions, that was the date on which the revocation had
taken effect.
As
a result, the first-instance decision on expropriation and
compensation became final. On 27 April 2007 the Gdańsk
Municipality paid the applicant the outstanding amount of PLN
170,333.
On
20 September 2006 the Gdansk District Court rejected the applicant’s
claim by which she sought compensation for the fact that from
September 2000 onwards the municipality had been using her land
without a valid expropriation decision. The court considered that the
applicant’s claim could not be examined before a civil court
and had to be dealt with in administrative proceedings.
B. Proceedings to have the enforcement of the
expropriation decision suspended
By
a decision of 16 May 2001 the Pomorze Regional Office, acting ex
officio, stayed the enforcement of the expropriation decision
given on 25 January 2001 (see paragraph 14 above), having regard
to the fact that the applicant had lodged an appeal against it. It
referred to section 9 of the Land Administration Act.
The
Gdańsk Road Management Office (Zarząd Dróg i
Zieleni) appealed against that decision. It argued that the mere
fact that the applicant had contested the first-instance
expropriation and compensation decision could not justify the staying
of its enforcement. The construction of the road, which was by then
well advanced, should not be delayed as this would entail serious
financial loss. They further referred to concrete technical
difficulties in the road construction and its logistics, caused by
the fact that work which had already started could not be continued
on the applicant’s land, such as the impossibility of using
that land for transport purposes.
On
29 June 2001 the President of the National Housing and Local Land
Development Office quashed the contested decision on formal grounds
and ordered that the enforcement issue be re-examined.
On
10 August 2001 the Pomorze Regional Office, acting ex officio,
resumed the enforcement of the expropriation decision, having regard
to the judgment of the Supreme Administrative Court of 25 July 2001
dismissing the applicant’s appeal against the requisition order
(see paragraph 43 below). It observed that following that
judgment, the Office had a legal right to take possession of the land
concerned, which was needed for the construction project.
C. Proceedings concerning the requisition order in
respect of the applicant’s land
After
the first-instance expropriation decision had been given on 27 June
2000 (see paragraph 14 above) and when the applicant’s appeal
against it was pending, on 7 August 2000 the Mayor of Gdańsk
issued a requisition order allowing the Gdansk Road Management
Office, on the basis of Article 122 of the Land Administration Act,
to take possession of the applicant’s property with a view to
starting construction work. He stated that it was necessary in order
to proceed with the implementation of the already well-advanced road
construction project and to prevent serious social and financial
costs that further delay in the realisation of that project would
cause.
The
applicant appealed against that decision, emphasising that it was
unlawful. She argued that no final expropriation decision in respect
of her property had been given. The grounds invoked by the Mayor in
the requisition order were drafted in very broad terms. The Mayor had
failed to indicate, with reference to the concrete circumstances of
the case, why it was necessary in the applicant’s case to
impose such a serious restriction on the exercise of her still valid
ownership rights. No relevant and sufficient reasons for the
occupation of her land had been advanced. In particular, the mere
fact that expropriation proceedings had been instituted and
construction work was about to start did not warrant the conclusion
that such a serious restriction of her ownership rights was
justified.
In
September 2000 road construction work commenced on the neighbouring
plots. No work had yet been carried out on the applicant’s
land. On 5 September 2000 the applicant applied to the Gdańsk
Regional Building Works Inspector for the work on her land to be
stopped. On 6 October 2000 the Inspector informed the applicant
that no work had yet been conducted on her land. On 20 October 2000
on-the-spot inspection, in the presence of the applicant, confirmed
that fact.
On
5 December 2000 the Governor of Pomorze dismissed the applicant’s
appeal against the requisition order of 7 August 2000, fully
endorsing the arguments relied on by the first-instance authority.
The
applicant appealed against that decision before the Supreme
Administrative Court, asking the court to stay the enforcement
of the requisition order.
On
23 May 2001 the court refused the
applicant’s request for a stay of the enforcement of the
requisition order, holding that to allow her request would defeat the
very purpose of the requisition order.
On
15 June 2001 the Pomorze Regional Office requested the Supreme
Administrative Court to give priority to the examination of the
applicant’s appeal against the requisition order, referring to
the fact that the construction work had been seriously delayed
because no work could be done on the applicant’s land. The
significant investment of public funds, the advanced stage of
realisation of the project and the serious disturbance to traffic
caused by the construction work called for priority to be given to
the case.
By
a judgment of 25 July 2001 the Supreme Administrative Court dismissed
the applicant’s appeal. It observed that the expropriation
proceedings had been conducted with a view to modernising the town’s
road network, facilitating access to the local airport and reducing
the number of road accidents on Słowacki Street. This was
clearly in the public interest. The fact that the municipality had no
final legal title to occupy the applicant’s property was the
only remaining obstacle to starting the construction work on that
property. It also hindered progress of the construction work carried
out on the neighbouring properties. The Court referred to Article 122
of the Land Administration Act, which expressly provided for
requisition orders in the absence of final expropriation decisions if
a delay would make the implementation of a public-interest project
impossible.
D. Proceedings concerning the road construction
building permit
On
13 December 2000 the company commissioned by the municipality to
carry out the work – the above-mentioned Gdansk Road Management
Office – applied to the Gdańsk Municipal Office for a
building permit for road construction work to be carried out on the
applicant’s land. In April 2001 the applicant applied for the
proceedings to be stayed, arguing that in the absence of the final
decision on expropriation the Office had no legal right to take
possession of her land. On 13 April 2001 the Road Management Office
requested the Municipal Office to take steps to resolve the
difficulties concerning the legal status of the applicant’s
land, arguing that construction work on that stretch of road had
advanced, with the exception of the 300 metres planned on the
applicant’s land.
The
proceedings concerning the application for the building permit were
subsequently stayed, the authorities having regard to the fact that
in the absence of the expropriation decision the construction company
had no right to take possession of the land, and that under the
applicable building regulations such a right was an essential
prerequisite for requesting a building permit.
On
10 August 2001 the Pomorze Regional Office resumed the proceedings,
having regard to the judgment of the Supreme Administrative Court of
25 July 2001 dismissing the applicant’s appeal against the
requisition order (see paragraph 18 above). It observed that that
judgment had conferred on the building company the right to take
possession of the applicant’s land for construction purposes,
even in the absence of a final expropriation decision confirmed by
the administrative court.
On
14 August 2001 the Pomorze Regional Office issued the building permit
as per the application, thereby authorising the construction
company to start the construction work on the plots concerned. The
applicant appealed against that decision, reiterating that as long as
she had not been expropriated no one had the right to build on her
land.
On
16 August 2001 the construction company took possession of the
applicant’s land. The construction work started shortly
afterwards.
On
12 November 2001 the Chief Building Works Inspector dismissed the
applicant’s appeal and upheld the building permit. The
applicant appealed, reiterating essentially that the building permit
could not be given because the expropriation proceedings had not been
concluded.
On
22 May 2002 the construction of the road was officially completed. On
23 January 2002 a decision authorising use of the road by the public
was given.
On
27 June 2003 the Supreme Administrative Court dismissed the
applicant’s appeal against the building permit. It dismissed
the applicant’s arguments that the building company had had no
legal right to take possession of her land. It noted that the
first-instance expropriation decision had been given on 7 June 2000
(see paragraph 14 above). On 7 August 2000 the first-instance
requisition order had been given (see paragraph 37 above). The latter
order had become final and enforceable following the judgment of 25
July 2001 (see paragraph 43 above). The court held that that judgment
had to be deemed to have conferred on the building company the right
to possess the land within the meaning of the building regulations.
The
court stressed that requisition orders were necessary for
public-interest works to be able to go ahead where expropriation
proceedings were still pending but the works should nevertheless be
carried out to prevent certain negative consequences. Such a decision
did not infringe the owner’s rights although it did limit them
temporarily.
A
requisition order should be assessed in the context of the
expropriation proceedings seen as a whole. Such an order was usually
given after the first-instance expropriation
decision had been issued. The applicable legal regulations expressly
allowed for such orders to be given. The court referred to Article
108 of the Code of Administrative Procedure and to section 122 of the
Land Administration and Expropriation Act 1997. Expropriation and
requisition orders were two different legal institutions. They
conferred different rights on the public authorities. A requisition
order was clearly of a temporary character. It was obvious that its
legal effects differed from those produced by a decision on
expropriation. However, it conferred on the authorities a right to
take possession of the land and to use it for public-benefit
purposes. By introducing a requisition order into the Land
Administration and Expropriation Act 1997 the legislature had
intended to avoid situations where expropriation could be blocked as
a result of appeals lodged by the affected parties.
In
the court’s opinion, if one accepted the applicant’s
argument that the requisition order did not confer a right to take
possession of the land for building purposes, the very purpose of the
requisition order would be defeated.
A
requisition order could not per se
be regarded as a violation of ownership. It did not replace the
expropriation decision and did not deprive the owner of his or her
ownership right; at most it limited it temporarily until the
termination of the expropriation proceedings. This was justified
under Article 64 § 3 of the Constitution (see paragraph 59
below). The court recalled that the right of property was not an
absolute right.
The
court observed that in the circumstances of the case the grant of the
building permit did not infringe the law despite the exceptional
character of the applicant’s situation and the pending
expropriation proceedings. The applicant’s case demonstrated
that, in practice, requisition orders were necessary. In certain
cases, it would have been impossible to realise the public-benefit
purposes for which expropriation proceedings had been instituted
without having recourse to requisition orders.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitutional protection of property rights
Article 21 of the Constitution provides:
“1. The Republic of Poland shall
protect ownership and the right of succession.
2. Expropriation shall be allowed only in the
public interest and against payment of just compensation.”
Article
31 of the Constitution reads:
“Freedom of the person shall receive legal
protection.
Everyone shall respect the freedoms and rights of
others. No one shall be compelled to do that which is not required by
law.
Any limitation upon the exercise
of constitutional freedoms and rights may be imposed only by statute,
and only when necessary in a democratic state for the protection of
its security or public order, or to protect the natural environment,
health or public morals, or the freedoms and rights of other persons.
Such limitations shall not violate the essence of freedoms and
rights.”
Article
64 of the Constitution provides:
“1. Everyone shall have the right to
ownership, other property rights and the right of succession.
2. Everyone, on an equal basis, shall receive
legal protection regarding ownership, other property rights and the
right of succession.
The right of ownership may be limited only by means of a
statute and only to the extent that it does not violate the essence
of such right.”
B. Relevant provisions of the land expropriation
legislation
On
1 January 1998 the Land Administration Act of 21 August 1997
(Ustawa o gospodarce nieruchomościami – “the
Land Administration Act”) entered into force. Under section 112
of that Act expropriation consists in the removal, by way of an
administrative decision, of ownership rights or other rights in
rem. Expropriation can be carried out where public-interest aims
cannot be achieved without restriction of those rights and where it
is impossible to acquire those rights by way of a civil law contract.
Under
section 113 an expropriation can be carried out only for the benefit
of the State Treasury or the local municipality.
Section
122 provides that in cases defined by Article 108 of the Code of
Administrative Procedure (see paragraph 68 below) the administrative
authority is empowered to issue a requisition order allowing an
entity carrying out works for the public benefit to enter and take
possession of land in respect of which a decision on expropriation
has been given, if a delay would make realisation of the
public-benefit works impossible. A clause of immediate enforceability
(rygor natychmiastowej wykonalności) may be issued in
respect of such an order.
In
accordance with section 128 § 1 of the Act, expropriation is to
be carried out against payment of compensation corresponding to the
value of the property right concerned. Under section 130 § 1 of
the Act, the amount of compensation is fixed regard being had to the
status and value of the property on the day on which the
expropriation decision was given. The value of the property is
estimated on the basis of an opinion prepared by a certified expert.
Section
131 provides for the possibility of awarding the expropriated owner a
replacement property if he or she so agrees.
Pursuant
to section 132, compensation must be paid within fourteen days from
the date on which the expropriation decision becomes subject to
enforcement.
Section
134 provides for the market value of the expropriated property to
serve as a basis on which the amount of compensation is fixed. The
following criteria are to be taken into consideration when
establishing the market value of the property: its type, location,
the use to which it has been put, the existence of any technical
infrastructure on the property, its overall state and current prices
of properties in the municipality.
C. Immediate enforceability of non-final administrative
decisions
In
situations specified by Article 108 of the Code of Administrative
Procedure, local State administration can authorise an entity charged
with the implementation of a public-interest project to occupy the
property concerned immediately if a delay would render the
implementation of the project impossible.
Article
108 of the Code provides for an administrative decision to be
rendered immediately enforceable, even if further appeal against it
is available, when this is necessary for the protection of life or
limb, or for the protection of the national economy against serious
damage, or for the protection of other societal interests.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
The
applicant complained that she had suffered a
disproportionate interference with her property rights as a result of
the measures taken in respect of her land. She 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.”
A. Admissibility
The
Government submitted that the judgment of the Supreme Administrative
Court of 25 July 2001 had been served on the applicant’s lawyer
on 9 August 2001. That judgment had ultimately conferred on the
authorities the right to take possession of the applicant’s
plot. The subsequent decisions given in the case had only been the
consequence of the fact that that right had been conferred on the
authorities. The application had been lodged with the Court seven
months later, on 1 March 2002. The applicant had therefore failed to
submit her application to the Court within the time-limit of six
months provided for in Article 35 of the Convention.
The
Court is of the view that dates of final decisions in the case for
the purposes of Article 35 of the Convention should be established
with due regard being had to the subject-matter of the case and the
essential purpose which the applicant wished to achieve (see
Trzaskalska v. Poland, no. 34469/05, §§ 36-37,
1 December 2009, mutatis mutandis). It observes that the
applicant complained that the expropriation decision, the amount of
compensation awarded to her and the cumulative effect of all the
measures taken in respect of her property had been in breach of
Article 1 of Protocol No. 1. By the judgment relied on by the
Government the Supreme Administrative Court upheld the requisition
order. However, other sets of proceedings relevant for the protection
of the applicant’s right to the peaceful enjoyment of her
possessions were subsequently conducted until 2007. The Court
considers that that judgment cannot therefore be deemed to be the
date which triggered the running of the six-month period provided for
by Article 35 of the Convention.
This
preliminary objection of the Government must therefore be rejected.
The
Government further submitted that the applicant had failed to exhaust
all the domestic remedies available under Polish law.
In
so far as the applicant complained about the expropriation decision
and about the amount of compensation which she had received, the
Government argued that she had failed to pay the court fee for her
appeal against the Governor’s decision of 4 July 2006 upholding
the expropriation decision and fixing the amount of compensation at
PLN 725,232. As a result, the Gdańsk Regional Administrative
Court had rejected the appeal on 29 September 2006. The
applicant’s subsequent efforts to be granted leave to appeal
out of time had been unsuccessful. The applicant had thereby lost the
opportunity of challenging the expropriation decision and the amount
of compensation due.
The Government relied also on the fact that in the context of the
expropriation proceedings the applicant had failed to:
- complain
about the length of the expropriation proceedings by alleging a
violation of her right under the 2004 Act to have her case examined
within a reasonable time in judicial proceedings;
- complain
under Article 37 of the Code of Administrative Procedure about the
administrative authorities’ failure to give decisions within a
reasonable time;
- claim
compensation, in civil proceedings, for damage caused by the
excessive length of the expropriation proceedings.
The Court reiterates at the outset that the rule of
exhaustion of domestic remedies referred to in Article 35 of the
Convention obliges those seeking to bring their case against the
State before an international judicial organ to use first the
remedies provided by the national legal system. In order to comply
with the rule, normal recourse should be had by an applicant to
remedies which are available and sufficient to afford redress in
respect of the breaches alleged (see, among many other authorities,
Aksoy v. Turkey, 18 December 1996, §§
51–52, Reports of Judgments and Decisions 1996-VI). The
condition of exhaustion of domestic remedies is not satisfied if a
remedy has been declared inadmissible for failure to comply with a
formal requirement (see, among many other authorities, Ben Salah
Adraqui and Dhaime v. Spain (dec.), no. 45023/98, decision
of 27 April 2000, ECHR 2000-IV).
In
so far as the Government’s arguments relate to the
expropriation and compensation proceedings, the Court notes that it
was open to the applicant to challenge the expropriation decision and
the amount of compensation determined therein by way of an appeal to
the administrative courts of first, and ultimately also of second
instance. The domestic authorities rejected her appeal to the
administrative court as she had failed to pay the court fee. She thus
failed to have recourse to a relevant remedy concerning both the
expropriation and the amount of compensation which she then
challenged before the Court.
It
follows that this part of the application must be declared
inadmissible for failure to exhaust relevant domestic remedies.
In
so far as the Government argued that the applicant should have had
recourse to specific remedies applicable in respect of length of
proceedings, the Court observes that the applicant did not complain
before the Court about an alleged breach of her right to have her
case heard within a reasonable time, within the meaning of Article 6
of the Convention.
The Government further submitted that the applicant had failed to
seek compensation for profits lost during the period when the
authorities had occupied her property on the basis of the requisition
order.
The
Court observes that the applicant failed to seek compensation in
administrative proceedings for profits lost during the period when
the authorities had occupied her land on the basis of the requisition
order, as indicated in the decision of the Gdańsk Regional Court
of 6 December 2006. In so far as the present application can be said
also to concern lost profits, it must be declared inadmissible in
this part for non-exhaustion of domestic remedies. However, the scope
of the present application is broader as the applicant complained
about all the measures and decisions given in her case taken together
and their cumulative impact on the effective exercise of her right to
the peaceful enjoyment of her possessions.
The
Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The Government
The
Government submitted that the expropriation of the applicant’s
land had been indispensable for the realisation of a public goal –
the broadening and improvement of Słowacki Street –
planned under the local land development plans. That road was one of
the main thoroughfares of the Gdańsk-Gdynia-Sopot agglomeration.
It provided access to the city airport and connected the city with
its western ring-road. Traffic congestion in Gdańsk was very
serious, especially in the street concerned. The improvement of the
roadway would definitely contribute to solving the communication
problems in the city. This had been confirmed by the Supreme
Administrative Court in the expropriation proceedings.
They
further argued that the expropriation of the applicant’s land
was in accordance with law. All the decisions issued in connection
with the proceedings had been based on the relevant legal provisions,
notably the 1997 Land Administration Act. The proceedings had been
conducted in conformity with the applicable procedural provisions. At
each stage of the proceedings the applicant had
had opportunities to present her position and use the available
remedies. Her justified objections had been taken into account.
The
Government submitted that the requisition order had been based on
Article 122 of the 1998 Land Administration Act. Its lawfulness had
been re-examined and it had been upheld by the Pomorze Governor’s
decision of 5 December 2000 and subsequently by the Supreme
Administrative Court in its judgment of 25 July 2001 (see
paragraph 43 above). The applicant’s complaints about the
requisition order and its consequences had not taken the ratio
legis behind the order into account. It
was necessary precisely in cases where the expropriation proceedings
had not been finalised because the party had appealed against the
expropriation and where the public investment works had
nevertheless to go ahead. A requisition order
was necessary where the need to protect an important public interest,
including the national economic interest, required that immediate
measures be taken and where there was a risk that delay would impede
the realisation of the public-interest purpose for which the
expropriation had been decided. A requisition order did not
automatically infringe the owner’s rights although it limited
them temporarily.
The
Government were of the view that in the present case the applicant
had not suffered an excessive burden. She had owned forty-three
plots, only seven of which had been affected by the measures
complained of. Before the expropriation proceedings had started she
had not used the plots. They had remained undeveloped, with no
technical infrastructure on them. They had in fact been wasteland,
considered for tax purposes as farmland. They had not brought any
income to the applicant. She remained the owner of most of her land
and there were no obstacles to her using the remaining plots, access
to which had been possible during the construction work. In any case,
the construction work on the applicant’s plots had been
completed within a short period of time. Therefore any inconvenience
that might have resulted from the work carried out on the plots
concerned could not have been serious. In addition, the modernisation
of Słowacki Street must have improved access to the remaining
plots of the applicant’s land.
87. The
Government concluded that the interference complained of had been
prescribed by law, had pursued the general interest and had not
imposed an excessive burden on the applicant.
(b) The applicant
The
applicant submitted that her right to the peaceful enjoyment of her
possessions had been breached. Despite the fact that she had been the
lawful owner of her land, the decisions given by the authorities had
deprived her of her right to use and obtain profits from the
property.
In
particular, the authorities had given a requisition order in the
absence of a final and enforceable expropriation decision. The
appellate proceedings against the expropriation decision had been
pending at that time. The reasoning of the requisition order had been
laconic. The authorities had failed to justify it by referring to
relevant and sufficient grounds to show that heavy losses would
indeed be incurred by a delay in its enforcement. As a result of the
non-final decision being subject to immediate enforcement, the
applicant had suffered a serious breach of her right to the peaceful
enjoyment of her possessions.
The
applicant referred to the Court’s judgment in the case of AGOSI
v. the United Kingdom, 24 October 1986, Series A no. 108. She
expressed the view that the procedures conducted in her case had
failed to afford her a reasonable opportunity of putting her case to
the responsible authorities. Her property had been occupied and the
construction work had started when the expropriation proceedings were
still pending and substantive questions crucial for the assessment of
the lawfulness of the expropriation were under examination by the
authorities. The work on her land should not have gone ahead on the
basis of the requisition order – which was, by its nature, only
a temporary measure – in the absence of a final and enforceable
decision on expropriation and compensation.
The
applicant argued that the measures taken in her case had been
unlawful, in particular because the authorities had breached Article
122 of the 1997 Land Administration Act. That provision allowed for a
requisition order to be given only if a decision on expropriation had
already been given. In the applicant’s case no final
expropriation decision had existed at the time when the requisition
order had been given, and the work had proceeded on the basis of that
order.
The
applicant concluded, referring to the case of Sporrong and
Lönnroth v. Sweden (23 September 1982, Series A no.
52), that in her case, having regard to its circumstances seen as a
whole, a reasonable relationship of proportionality between the means
employed and the aim sought to be realised by measures depriving her
of her possessions had not been respected.
2. The Court’s assessment
(a) The applicable principles
The
Court reiterates that Article 1 of Protocol No. 1, which guarantees
the right to the protection of property, contains three distinct
rules: “the first rule, set out in the first sentence of the
first paragraph, is of a general nature and enunciates the principle
of the peaceful enjoyment of property; the second rule, contained in
the second sentence of the first paragraph, covers deprivation of
possessions and subjects it to certain conditions; the third rule,
stated in the second paragraph, recognises that the Contracting
States are entitled, amongst other things, to control the use of
property in accordance with the general interest. The three rules are
not, however, ‘distinct’ in the sense of being
unconnected. The second and third rules are concerned with particular
instances of interference with the right to peaceful enjoyment of
property and should therefore be construed in the light of the
general principle enunciated in the first rule” (see, as a
recent authority with further references, J.A. Pye (Oxford) Ltd
and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC],
no. 44302/02, § 52, ECHR 2007 ...).
In
order to be compatible with the general rule set forth in the first
sentence of the first paragraph of Article 1, an interference with
the right to the peaceful enjoyment of possessions must strike a
“fair balance” between the demands of the general
interest of the community and the requirements of the protection of
the individual’s fundamental rights (see Beyeler v. Italy
[GC], no. 33202/96, § 107, ECHR 2000-I).
A
taking of property under the second sentence of the first paragraph
of Article 1 without payment of an amount reasonably related to its
value will normally constitute a disproportionate interference that
cannot be justified under Article 1. The provision does not, however,
guarantee a right to full compensation in all circumstances, since
legitimate objectives of “public interest” may call for
less than reimbursement of the full market value (see Papachelas
v. Greece [GC], no. 31423/96, § 48, ECHR 1999-II, with
further references).
The
Court will generally respect the domestic authorities’ judgment
as to what is in the general interest unless that judgment is
manifestly without reasonable foundation (see Immobiliare Saffi v.
Italy [GC], no. 22774/93, § 49, ECHR 1999-V). However,
it cannot remain passive, in exercising the European supervision
incumbent on it, where a domestic court’s interpretation of a
legal act appears “unreasonable, arbitrary or ... inconsistent
... with the principles underlying the Convention” (see Pla
and Puncernau v. Andorra, no. 69498/01, § 59,
ECHR 2004-VIII). The State has obligations under Article 1 of
Protocol No. 1 to take measures necessary to protect the right of
property and it is the Court’s duty to ensure the observance of
the engagements undertaken by the Contracting Parties to the
Convention, and not to deal with errors of fact or law allegedly
committed by a national court unless Convention rights and freedoms
may have been infringed (see Anheuser-Busch Inc. v.
Portugal, Anheuser-Busch Inc. v. Portugal [GC], no.
73049/01, § 83, ECHR 2007 I).
(b) Application of the foregoing
principles to the circumstances of the case
(i) The nature of the interference
The
Court notes that it has already declared the applicant’s
complaint concerning the expropriation proper and the amount of
compensation she received inadmissible. It must now examine the
remainder of the application. It observes that the gist of the
applicant’s complaint is that all her efforts to stop the
construction work in the absence of a final expropriation decision
failed.
The
Court notes that the measures complained of did not deprive the
applicant of her ownership, but subjected the use of her possessions
to significant restrictions; hence, it may be regarded as a measure
to control the use of property.
(ii) The lawfulness of the interference
The
Court recalls that an essential condition for an interference to be
deemed compatible with Article 1 of Protocol No. 1 is that it
should be lawful. The rule of law, one of the fundamental principles
of a democratic society, is inherent in all the Articles of the
Convention (see Iatridis v. Greece [GC], no. 31107/96,
§ 58, ECHR 1999-II). The principle of lawfulness also
presupposes that the applicable provisions of domestic law be
sufficiently accessible, precise and foreseeable in their application
(see, among other authorities, Hentrich v. France,
22 September 1994, § 42, Series A no. 296-A,
and Lithgow and Others v. the United Kingdom, 8 July
1986, § 110, Series A no. 102).
In
this connection the Court reiterates that it is in the first place
for the domestic authorities, notably the courts, to interpret and
apply domestic law (see Jahn and Others v. Germany [GC],
nos. 46720/99, 72203/01 and 72552/01, § 86, ECHR 2005
- ).
In
the present case the proceedings concerning expropriation and the
amount of compensation to be paid were still pending when the
authorities decided to issue the requisition order in respect of the
property concerned. The Court observes that, under Article 130 of the
Polish Code of Administrative Procedure, lodging an appeal against a
first-instance administrative decision suspends the execution of that
decision. However, the administrative authorities are empowered to
order that a decision be immediately enforceable pending the appeal
in the situations specified in Article 108 of the Code of
Administrative Procedure, namely when it is necessary for the
protection of life or limb, or to protect the national economy
against serious damage. Furthermore, a specific regulation in the
context of expropriation proceedings – Article 122 of the Land
Administration Act – empowers the administrative authorities to
allow entities commissioned to carry out public works to take
possession of land in respect of which a first-instance expropriation
decision has been given. So the requisition order had a legal basis
in domestic law. Furthermore, in the proceedings in which the
applicant contested the lawfulness of the building permits, the
authorities, including the administrative courts, held that the
permits in question had conferred on the building company a right to
take possession of her land necessary for the building permit
purposes.
The
Court is therefore prepared to accept that the interference
complained of satisfied the requirement of lawfulness within the
meaning of Article 1 of Protocol No. 1.
(iii) The aim of the interference
Any
interference with a right of property can only be justified if it
serves a legitimate public 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 public concern warranting measures interfering
with the peaceful enjoyment of possessions (see Terazzi S.r.l.
v. Italy, 17 October 2002, § 85, and Elia
S.r.l. v. Italy, no. 37710/97, § 77, ECHR
2001-IX).
In
the present case the Court accepts that the measures contested by the
applicant pursued the legitimate aim of furthering a municipal plan
to improve the road situated in the vicinity of the applicant’s
land.
(iv) The proportionality of the
interference
The
Court must next examine whether the interference with the applicant’s
right to the peaceful enjoyment of her possessions struck 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 imposed a disproportionate and
excessive burden on the applicant (see, among many other authorities,
Jahn and Others, cited above, § 93).
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., both cited
above, and Skibińscy v. Poland, no. 52589/99, § 59,
14 November 2006). In particular, in the area of road construction
this wide margin of appreciation is justified by the fact that
excessive delays could entail serious expenditure to the public
purse, over and above the planned costs and increase nuisance
suffered by owners of properties adjacent to the land on which those
projects are carried out.
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 the peaceful enjoyment of her
possessions (see, mutatis mutandis, Sporrong and Lönnroth
v. Sweden, cited above, § 69).
The
Court appreciates that the enforcement of a requisition order in the
absence of a final and enforceable decision on the merits of the
expropriation and compensation case can give rise to serious and
sometimes irreparable restrictions on the exercise of the right to
the peaceful enjoyment of one’s possessions. However, it has to
have regard to the specific circumstances of an individual case. In
this connection, the Court first notes the Government’s
submission that only a small part of the applicant’s property
was affected by the measures complained of.
The
Court next notes that the applicant’s land was of an
agricultural character. It has not been argued, let alone shown, that
there were houses or technical infrastructure on that land or that it
was developed in any other way. It further notes that the applicant
did not challenge the Government’s argument that before 2000,
when the expropriation proceedings had started, the land had not been
used for agricultural purposes and had lain fallow for an unspecified
period of time. It was not in dispute between the parties that
throughout the material time the applicant did not live on the land
concerned. Hence, the applicant has not shown that the measures
complained of interfered with any specific use, economic or
otherwise, to which she had put the land.
Although Article 1 of Protocol No. 1 contains no
explicit procedural requirements, in order to assess the
proportionality of the interference the Court looks at the degree of
protection from arbitrariness that is afforded by the proceedings in
the case (see Hentrich, cited above, § 46). In
particular, the Court examines whether the proceedings concerning the
interference with the applicants’ right to the peaceful
enjoyment of their possessions were attended by the basic procedural
safeguards. It has already held that an interference cannot be
legitimate in the absence of adversarial proceedings that comply with
the principle of equality of arms, enabling argument to be presented
on the issues relevant for the outcome of a case (see Hentrich,
cited above, § 42, and Jokela v. Finland, no. 28856/95,
§ 45, ECHR 2002 IV). A comprehensive view must be
taken of the applicable procedures (see AGOSI v. the United
Kingdom, judgment of 24 October 1986, Series A no. 108, p.
19, § 55; Hentrich, cited above, p. 21, § 49;
and Jokela, cited above, § 45).
The
Court has already noted that the requisition order was given when the
expropriation and compensation proceedings were still pending.
However, the authorities were not authorised to proceed immediately
with its enforcement. Despite the fact that the purpose of the
requisition order was to speed up the development of the land, it was
open to the applicant to challenge that order, first by way of appeal
to a higher administrative authority and, subsequently, by appealing
to the administrative court. The Court further observes that it was
also open to the applicant to challenge the measures taken by the
authorities in respect of her property by contesting the road
construction building permit. She availed herself of these
opportunities. The cases were vigorously argued in two parallel sets
of proceedings. There is no indication that during the proceedings
the applicant, who was represented by lawyers, was unable to present
her arguments to the authorities.
In
addition, the proceedings before the administrative court were
attended by full judicial procedural guarantees.
The
Court notes that in its judgment of 25 July 2001, concerning the
applicant’s appeal against the requisition order, the Supreme
Administrative Court observed that the fact that the municipality had
no final legal title to occupy the plots concerned was the last and
only remaining obstacle to starting the construction works, thus
impeding the progress in the already well-advanced project and
rendering ineffective expropriations effected with respect to the
neighbouring properties. In its judgment of 27 June 2003, concerning
the applicant’s challenge to the building permit, the Supreme
Administrative Court observed that a requisition order did
not replace the expropriation decision and did not deprive the owner
of his or her ownership rights, but at most it limited them
temporarily until the completion of the expropriation proceedings. It
further noted that the applicant’s case demonstrated
that the requisition orders were in practice necessary. In certain
cases, it would have been impossible to realise the public-benefit
purposes for which expropriation proceedings had been instituted
without having recourse to requisition orders.
The
Court is satisfied that the domestic judicial authorities carefully
weighed the arguments in favour of the applicant on the one hand and,
on the other, those indicating that the requisition order was, in the
circumstances of the case, necessary.
The
Court further observes that throughout the proceedings concerning the
requisition order and after it was ultimately upheld by the Supreme
Administrative Court on 25 July 2001, the first-instance decision on
expropriation, given on 27 June 2000, remained in existence. At no
point in time did a situation arise where work was conducted on the
applicant’s land on the basis of that order in the absence of
any decision on expropriation (compare and contrast, Kolona v.
Cyprus, no. 28025/03, § 72, 27 September 2007). Nor did a
situation ever arise where the authorities allowed public
construction work to be carried out on the applicant’s property
without valid land development plans grounding the expropriation
decisions in the public interest. At no point in time, therefore, was
the applicant left in a state of uncertainty as to whether her land
would ultimately be subject to expropriation (compare and contrast,
Skibińscy, cited above, §§ 79 and 90).
The
Court further notes that the construction work on the land concerned
started in August 2001. Hence, no work had commenced on the
applicant’s property before the lawfulness of the requisition
order was examined by the Supreme Administrative Court in its
judgment of 25 July 2001.
Furthermore,
the Court notes that the fact that the requisition order was given
while the expropriation and compensation proceedings were still
pending had no bearing on the applicant’s procedural or
substantive rights arising in these parallel sets of proceedings. The
authorities continued to examine the applicant’s successive
appeals. Neither the requisition order nor the building permit
affected in any way the amount of compensation which was ultimately
paid to the applicant. Hence, the fact that the authorities issued
the requisition order and the building permit neither thwarted the
applicant’s efforts to obtain adequate compensation nor
prevented her from arguing her case.
The
Court observes that in the expropriation proceedings the applicant
did not oppose the expropriation as such but, rather, challenged the
amount of compensation offered. Thus, a
requisition order in respect of land which in any event had not been
used by the applicant for any specific purpose cannot be said to have
imposed an excessive burden on her.
The
Court further observes that the applicant obtained compensation in
the amount of PLN 554,898 as early as 27 February 2002. Merely six
months after construction work had started on the land concerned.
Therefore, she had already obtained most of the compensation in the
amount of PLN 725,232 to which she was ultimately entitled under the
final expropriation and compensation decision of 4 July 2006. Hence,
the applicant’s case differs from cases where applicants were
deprived of their ownership and subsequently had to wait a long time
before compensation was fixed or paid to them (compare and contrast,
Malama v. Greece, no. 43622/98, § 51, ECHR 2001 II).
Moreover, the passage of time and the resulting increase in land
prices was taken into account by the authorities when the final
compensation figure was calculated.
Having
regard to the circumstances of the case seen as a whole, the Court
concludes that a fair balance was struck between the demands of the
general interest of the public and the requirements of the protection
of the individual’s fundamental rights and that the burden on
the applicant was neither disproportionate nor excessive.
There
has therefore been no violation of Article 1 of Protocol No. 1
to the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares admissible the applicant’s
complaint about the authorities’ failure to stop the
construction work in the absence of a final expropriation decision
and the remainder of the application inadmissible;
Holds that there has been no violation of
Article 1 of Protocol No. 1 to the Convention.
Done in English, and notified in writing on 29 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David Thór Björgvinsson Registrar President
