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SECOND
SECTION
CASE OF ROSIŃSKI v. POLAND
(Application
no. 17373/02)
JUDGMENT
STRASBOURG
17
July 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Rosiński v. Poland,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr V. Zagrebelsky,
Mrs A.
Mularoni,
Mr L. Garlicki,
Mrs D. Jočienė, judges
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 26 June 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17373/02) 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, Mr
Jerzy Rosiński (“the applicant”), on 15 April 2002.
The applicant was represented by Mr Piotr Kładoczny of the
Helsinki Foundation of Human Rights.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged that his right to the peaceful enjoyment of his
property had been breached since the land which he owned had been
designated for expropriation at some undetermined future date. Under
domestic legislation he was not entitled to any compensation for the
interference with his ownership resulting from the future
expropriation.
- On
24 October 2006 the Court decided to give notice of the application.
Under the provisions of Article 29 § 3 of the Convention, it
decided to examine the merits of the application at the same time as
its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1934 and lives in Warsaw.
- The
applicant owns a plot of land with a surface area of 2,183 square
metres, located in the municipality of Milanówek, near Warsaw.
It is listed in the local land register under entry No. 29735.
- On
20 March 1993 the applicant and his neighbours lodged their
objections to a proposed new land development plan to be adopted by
the municipality.
- On
30 March 1993 the municipal council of Milanówek adopted the
local land development plan. The applicant's objections were not
taken into consideration. Under
the plan, the applicant's land was designated for agricultural
purposes. A road and a hospital
were to be constructed on his land after expropriation.
- The
applicant and his neighbours complained of this decision to the
Mazowsze Governor, arguing inter alia that the plan breached
their right to the peaceful enjoyment of their possessions. They
submitted that the local land development plan had been prepared in a
manner which failed to take properly into consideration and reconcile
the various interests of the municipality and the local owners. As a
result, the plan was unreasonable and did not comply with the
standards of good land administration.
- They
transferred the complaint to the Supreme Administrative Court, after
being informed that it alone was competent to examine the matter.
- By
a judgment of 25 September 1995, the Supreme Administrative Court
dismissed the complaint, considering that there were no indications
that the municipal authorities had failed to take into consideration
and properly weigh the various competing interests involved in the
preparation of the local land development plan. It noted that the
restrictions on ownership imposed by land development measures were
not per se incompatible with the nature of ownership
guaranteed by the Civil Code.
- In
1997 the applicant and 36 other inhabitants of Milanówek
requested the Mayor to amend the 1993 plan in order to avoid the loss
of various investments they had made in their land after the
implementation of the plan's projects. This request apparently
remained unanswered.
- In
a letter of 4 April 2000 the Municipal Office, in reply to a query
submitted by the applicant and other persons, stated that the
municipal authorities were under no obligation to provide any
compensation for owners whose property was to be expropriated in the
future. They were also informed that the validity of the 1993 plan
had been prolonged for a further two years under the amendment to the
Local Planning Act 1994 adopted in 1999.
- On
7 July 2001 the Mayor of Milanówek refused the applicant's
request for an initial approval of a development project on his land
(decyzja o warunkach zabudowy), considering that the project
would be incompatible with the local land development plan. The
applicant wished to have a house built on his land while, under the
plan, it was designated for the construction of a road and a
hospital.
- The
applicant appealed against this decision to the Mazowiecki Governor.
In a reply of 19 July 2001, he was informed that the appeal should be
lodged with the Local Government Board of Appeal and that the
construction of the road in Milanówek would not be budgeted
before 2010 at the earliest. The applicant addressed the Appeal
Board.
- On
21 November 2001 the Local Government Board of Appeal dismissed the
applicant's appeal on the ground that his construction project was
incompatible with the land development plan. It was further
reiterated that, under the Local Planning Act 1994, he had no right
to compensation for the fact that his land had been “frozen”
or for the restrictions on its use.
- On
1 October 2001 the Municipal Office informed the applicant that the
plan had been amended in that the construction of the hospital was no
longer foreseen. However, the project to build a road remained valid,
but no timeframe was specified.
- On
11 March 2002 the applicant requested the Municipality to acquire his
property. The Municipal Office refused to do so by a letter of 9 May
2002.
- On
17 June 2002 the applicant complained to the Municipal Office that
the decisions it had given in respect of the land development in his
neighbourhood were incompatible with the land development plan
adopted in 1993.
- By
a letter of 2 July 2002, the Office informed the applicant that,
under domestic law, the owners of property to be expropriated in the
future had no right to compensation for the fact that their land
could not be developed. They would be entitled to compensation only
after the final expropriation decisions in respect of their property
had been taken.
- On
the same day the Supreme Administrative Court dismissed his appeal
against the decision of 19 December 2000. The court observed that its
jurisdiction was limited to the examination of the lawfulness of the
impugned decision. It found that the decision was lawful as it was
common ground between the parties that the applicant's construction
project was incompatible with the local land development plan.
It
further noted that the applicant had complained that his situation
could not be seen as being compatible with the Constitution, given
that owners affected by plans adopted prior to the Constitution's
entry into force could not benefit from compensation claims provided
for by section 36 of the Local Planning Act 1994. The court referred
to the judgment of the Constitutional Court given in 1995 (see
paragraph 36 below), which had examined the compatibility with the
Constitution of section 68 § 1 of the 1994 Act. That provision
had excluded the application of the owners' right to compensation
under section 36 to land development plans adopted before 31 December
1994. It had found the provision to be compatible with the
Constitution.
The
Supreme Administrative Court observed that it was not its task to
amend or criticise existing laws and that it was bound by this
provision. Otherwise, there were no grounds on which to consider that
the decision challenged by the applicant had been unlawful.
- In
the meantime, in January 2002 the applicant petitioned the Ombudsman.
- On
20 February 2002 the Ombudsman informed him that the legal framework
for “frozen land” was governed by the Local Planning Act
1994. Under section 36 of this Act, owners of such plots were
entitled to various forms of compensation, but only insofar as their
plots were affected by land development plans adopted after 1 January
1995.
- On
31 December 2002 the validity of the 1993 land development plan
expired.
- On
25 August 2003 the applicant was granted an initial planning permit
(decyzja o warunkach zabudowy) in respect of his land.
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 29 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
29 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
applicant alleged that his right to the peaceful enjoyment of his
possessions had been breached. He referred to Article 1 of Protocol
No. 1 to the Convention, which reads:
“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
40. The Government
submitted that the alleged violation of the applicant's property
rights had originated in the land development plan adopted 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.
41. The
applicant disagreed. He 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 were to be taken into account as relevant background
material for the assessment of the current facts of the case.
Moreover, in his case many facts had occurred after 10 October 1994
which should be regarded as giving rise to further breaches of his
rights guaranteed by Article 1 of Protocol
No. 1. The applicant referred to the Court's judgment in the
aforementioned case of Skibińscy v. Poland
concerning similar facts, where the Court had accepted 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 applicant's 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 his ownership and arising from various legal measures,
adopted both before and after that date (see paragraphs 24 34
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 1991 the applicant had acquired
agricultural land, with no construction rights. Hence, he could not
be said to have had any legitimate expectation that in the future he
would be allowed to build on it. Under Polish law the authorities
could not be required to permit agricultural land to be designated
for construction purposes. In the present case the applicant could
have had no more than a mere hope that he would acquire such a right.
- The
applicant disagreed.
- The
Court notes the Government's argument that under applicable laws the
applicant had no right to build on the land concerned. However, it
observes that the essence of the applicant's complaint relates to a
set of restrictions on the exercise of his ownership, with particular
emphasis on the lack of any right to compensation for the future
expropriation of his land, a state of affairs which lasted over eight
years (see paragraphs 63 66 below), rather than to the
mere refusal of a building permit given in 2001. It therefore rejects
the Government's objection.
3. Exhaustion of domestic remedies
- The
Government argued that, if the applicant had considered that the
provisions on which the domestic decisions in his case had been based
were incompatible with the Constitution, it would have been open to
him to challenge these provisions by lodging a constitutional
complaint under Article 79 of the Constitution. Thus, the
applicant could have achieved the aim of his application to the
Court, namely an assessment of whether the contested regulations, as
applied in his case, had infringed his Convention rights. He should
have lodged a constitutional complaint against the judgment of the
Supreme Administrative Court of 2 July 2002 dismissing his appeal
against the refusal of the initial planning permission. It was open
to the applicant to challenge, by way of such a complaint, section 68
§ 1 of the Local Planning Act 1994, the operation of which
was prolonged by the legislation of 22 December 1999 and 21 December
2001.
- The
Government further argued that the applicant should have lodged a
claim before a civil court, claiming damages against either the State
Treasury or the municipality for the interference with his right to
the peaceful enjoyment of his possessions. Had a civil court found
against him, he could also have lodged a constitutional complaint,
challenging the provisions of the Local Planning Act 1994 which were
applied to his case.
- The applicant disagreed. He submitted that the
provisions of civil law on the liability of public authorities were
not applicable to his case because section 68 of the Local Planning
Act 1994 expressly excluded the civil liability of public authorities
for claims originating from interferences with property rights in
connection with future expropriations.
- As to the constitutional complaint, the applicant
contended that, under the provisions of the Local Planning Act 1994,
he had had a legitimate expectation that the restrictions on his
entitlement to compensation would expire on 31 December 1999.
Nevertheless, the legislator subsequently decided, on two occasions,
to prolong the duration of those restrictions. As a result, they were
applicable to his situation for some eight years.
- The Court recalls that the object of the rule on
exhaustion of domestic remedies is to allow the national authorities
(primarily the courts) to address the allegation of a 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 reiterates that Article 35 § 1 of the Convention,
which sets out the rule on exhaustion of domestic remedies, requires
the Government claiming non-exhaustion to satisfy the Court that the
remedy was effective - available in theory and in practice at the
relevant time. That is to say, the remedy must be shown to have been
accessible, 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; 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; Pachla v. Poland (dec.),
no 8812/02, 8 November 2005; 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 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
applicant's complaint is that, as a result of the expropriation to be
carried out at a future, undetermined date,
- he
was not entitled to compensation for the protracted period of
uncertainty, which was twice extended by the legislator;
- he
was not entitled to obtain land to replace the plot designated for
expropriation;
- he
was unable to oblige the municipality to acquire his property before
the planned expropriation; and lastly
- he
was prevented from pursuing any development projects on that
property.
-
The Court 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
paragraphs 21 and 37 above). The Supreme Court relied on this
constitutional case-law, when dismissing the applicant's appeal
against the municipality's refusal of the applicant's request for the
initial approval of his development project. Moreover, the Court
observes that the municipality refused, by way of letters, the
applicant's requests by which he sought to obtain compensation for
the fact that his property had been “frozen” under the
1993 plan (see paragraphs 13, 16 and 20 above). Under the applicable
provisions of domestic law, a constitutional complaint in
administrative proceedings is only available against the final
decision of an administrative court. However, in the present case the
authorities did not issue binding administrative decisions and it has
not been shown or argued that the applicant could oblige them to do
so. Hence, the Court considers that it has not been shown that, in
the circumstances, a constitutional complaint with reasonable
prospects of success was available to the applicant.
- Having
regard to the above considerations, the Court is of the view that the
constitutional complaint cannot be regarded as an effective remedy in
the applicant's case.
- Insofar
as the Government argued that the applicant 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 expressly excluded (paragraph
30 above). Hence, this remedy did not offer any prospects of success.
- Consequently,
the Court rejects 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 and that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The Government's submissions
- The
Government first submitted that there had been no interference with
the applicant's right to the peaceful enjoyment of his possessions.
The plot bought by the applicant had originally been designated for
agricultural purposes. Even if there had been no public investment
planned for his property, the applicant 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 1991, when the applicant had acquired
ownership of the land, the planned course of the new ring road
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
applicant had bought a property designated for agricultural use and
should have been aware that his ownership right had not encompassed
the right to build a house there. He had been entitled to use or
dispose of his plot only within the limits prescribed by the law, the
principles of reasonable social co-operation and the socio-economic
purpose of ownership. The applicant's 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.
60. 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 communications and
environmental problems of the municipality of Milanówek. As
the Court has acknowledged on many occasions, such matters correspond
to the general interest of the community.
- The
procedure for the adoption of the 1993 local development plan had
involved the local communities, in accordance with the 1984 Local
Planning Act. All stages of the procedure had been public and the
inhabitants of the municipality, including the applicant, had been
able to comment on the draft plans. The objections raised by the
owners concerned had been carefully examined by various competent
authorities and, in the last resort, in judicial proceedings before
the Supreme Administrative Court.
- The
Government were of the opinion that in the present case the
individual burden imposed on the applicant had not been excessive. He
had not been prevented from either selling or leasing his property.
It had remained possible for him to continue using the property for
agricultural purposes in the same way he had used it prior to the
entry into force of the 1994 Act. Hence, the present case was
different from the situation in which the Court had found a violation
of Article 1 of Protocol No. 1 to the Convention in the case
Immobiliare Saffiv. Italy ([GC], no. 22774/93, ECHR
1999 V) as the applicant could fully enjoy his ownership
rights.
- The
value of the applicant's plot and the scope of its use increased
significantly as a result of the expiry of the 1993 local
development plan after 31 December 2002 and following the entry into
force of the 2003 Act.
- The
Government concluded that, in the circumstances of the case, a fair
balance had been struck between the applicant's individual rights on
the one hand and the public interest and transport needs of the local
community on the other.
2. The applicant's submissions
- The
applicant was of the view that there had been a breach of his
right to the peaceful enjoyment of his possessions since the land he
had owned had been designated for expropriation at some undetermined
future date. Under domestic legislation, he had not been entitled to
any compensation for this interference with his ownership rights.
- It
was true that he had not been formally deprived of his possessions
since he had remained the lawful owner. However, as a result of the
planning measures taken, his property rights had been stripped of any
economic significance. The fate of his land remained uncertain from
1994 until 2003. While the 1993 local development plan had provided
for the construction of a roadway through his land, the date of its
actual construction remained uncertain.
- As
to the Government's argument that the applicant could have tried to
sell his land, he averred that such an approach entirely disregarded
the fact that the market value of the plot had been significantly
reduced as a result of the adoption of the 1993 plan and the
consequential uncertain fate of the property.
- The
applicant submitted that his request to be granted a construction
permit had been refused. He acknowledged that Article 1 of
Protocol No. 1 did not guarantee him the right to build.
However, this provision should oblige public authorities to take
measures to eliminate uncertainty surrounding the fate of property
and, in addition, to take into account, in the procedure leading to
the adoption of a local development plan, the interests and
objections of the individual owners. It was unacceptable, in
the light of this provision, to deprive owners of the peaceful and
unhindered enjoyment of their possessions for such a long period.
3. 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 applicant's possessions.
- The
Court observes that the applicant's situation was affected by the
local land development plan adopted by the municipality of Milanówek
in 1993 because it provided for the future expropriation of his land.
The Court first notes that the applicant's objections to the plan
were dismissed. The Court emphasises that the applicant's situation
was negatively 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. However, under the Local
Planning Act 1994, the local authorities did not have any obligation
to compensate the applicant at the material time.
In
that connection, the Court further notes 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 section 36 of that Act
that local authorities became obliged either to buy plots designated
for future expropriation under local land development plans, or to
replace those plots by other plots, or to award the owners
compensation for damage caused by the fact that their plots were
designated for future expropriation. However, the right to
compensation applied only to plans adopted after the 1994 Act had
entered into force. Consequently, they were not applicable to the
applicant's situation as the plan for the municipality had been
adopted in 1993.
- The
Court further notes that the applicant's request for an initial
approval of a development project on his land was refused in 2001. He
was informed that, under the applicable legislation, the municipality
was not obliged to acquire his property which was to be expropriated
in the future and that he had no right to compensation.
- Consequently,
the measures complained of, taken as a whole, in law left intact the
applicant's right to continue to use and dispose of his possessions.
Nevertheless, in practice, they significantly reduced the effective
exercise of that right. The applicant's property rights thus became
precarious and defeasible (mutatis mutandis, Sporrong and
Lönnroth v. Sweden, cited above, §§ 58-60;
Skibińscy v. Poland, cited above, § 79).
- The
Court therefore concludes that there was indeed an interference with
the peaceful enjoyment of the applicant's possessions. The Court
further considers that the measures complained of did not amount to
expropriation. Likewise, they cannot be regarded as 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”
- The
Court notes that it is not in dispute between the parties that the
interference with the applicant's property rights was based on the
Local Planning Act 1994 and subsequent legislation (see
paragraphs 24-34 above). 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).
76. 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 1993 the
municipality of Milanówek adopted a local land development
plan. Under this plan, the applicant's property was designated for
future expropriation with a view to the construction of a ring-road
and a hospital in the vicinity of his land. However, that plan did
not have any timeframe for its implementation. Further, in 2001,
eight years after the plan had been adopted, the Mazowiecki Governor
informed the applicant that the budget for the construction of the
road would not be available before 2010.
- As
a result, the applicant was threatened with expropriation at an
undetermined point in time and he did not have any effective
entitlement to compensation in the meantime. This was repeatedly
confirmed by the municipal authorities. The Court emphasises that
this situation lasted for a long period: from 1993 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 the applicant could
not claim any compensation from the municipality.
- In
this connection, the Court notes the Government's argument that the
provisions of the 1994 Act were intended to improve the situation of
owners, because it introduced 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.
- Lastly,
the Court notes that since July 2003, when the 2003 Act entered
into force, section 36 of that Act has granted a right to
compensation to owners who were restricted in the use of their
property as a result of the adoption of a local development plan.
Such claims 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 (see paragraph 30 above). It has not been argued or
shown that the 2003 Act provides for any retroactive right to
compensation for the prejudice suffered by the applicant, before its
entry into force, as a result of the restrictions originating in
earlier development plans. Consequently, the entry into force of the
2003 Act did not alter the applicant's situation.
- The
Court notes the Government's argument that, by adopting such
provisions, the legislature had given the local authorities time to
adjust land development plans to the new needs of the municipalities,
without the latter being obliged to compensate individual owners for
the consequences of local development plans adopted before 1989, when
the transformation of the legal and economic system of the State had
been undertaken.
- The
Court is aware that the 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).
- Finally,
the Court notes that the applicant's request for an initial approval
of a development project on his land was refused in 2001 (see
paragraphs 14 16 above). In the refusal the authorities
essentially referred to the provisions of the development plan.
However, when the applicant requested that approval, there were no
good grounds on which to believe that the land development plan
adopted in 1993 would be implemented promptly. As a result, the de
facto blocking of any construction on the applicant's 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 whether the land
development plan would be implemented within a reasonable timeframe,
this resulting state of affairs, seen as a whole, failed to strike
the requisite fair balance between the competing general and
individual interests. Consequently, the applicant was required to
bear an excessive individual burden (see
Skibińscy v. Poland, cited above, § 97).
- 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
applicant claimed 15,000 euros (EUR) in respect of non-pecuniary
damage which he had sustained as a result of the distress and
uncertainty occasioned by the violation complained of, and for the
fact that no efforts had been made by the competent authorities to
clarify and ameliorate the legal and factual position of owners
threatened with expropriation in the future.
- The
Government submitted that the applicant's claim was exorbitant and
should be rejected. They asked the Court to rule that a finding of a
violation constituted in itself sufficient just satisfaction.
Alternatively, the Government invited the Court to award a sum which
would be considerably lower than the amount claimed.
- The
Court considers that the applicant has sustained some non-pecuniary
damage on account of the violation of Article 1 of Protocol No. 1 to
the Convention which would not be sufficiently compensated by that
finding (see, for example, Elsholz v. Germany [GC],
no. 25735/94, §§ 70 71, ECHR 2000-VIII; Schirmer
v. Poland, cited above). Having regard to the circumstances
of the case and ruling on an equitable basis, the Court awards the
applicant EUR 5,000.
B. Costs and expenses
-
The applicant did not seek reimbursement of costs and expenses
relating to the Convention proceedings and this is not a matter which
the Court has to examine of its own motion (see Motière
v. France, no. 39615/98, § 26, 5 December
2000).
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 applicant, 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, plus any tax that
may be chargeable, to be converted into Polish zlotys at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 17 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Mrs Mularoni
is annexed to this judgment.
F.T.
S.D.
CONCURRING OPINION OF JUDGE MULARONI
I
agree with the conclusion of the majority that the application is
admissible and that there has been a violation of Article 1 of
Protocol No. 1.
However,
as to the exception of incompatibility ratione temporis raised
by the respondent Government, I would like to express a separate
opinion, since my position is different from what emerges from the
text of the judgment.
The
Government submitted that the alleged violation of the applicant's
property rights had originated in the land development plan adopted
in 1993, that is, before 10 October 1994, the date on which Poland
ratified Protocol No. 1 to the Convention. Consequently the
application should have been declared incompatible ratione
temporis with the provisions of the Convention.
I
would have agreed with the Government had the interference with the
applicant's rights ended on 31 December 1999, the date on which,
pursuant to the 1994 Act, plans adopted before its entry into force
were to expire (see paragraph 33 of the judgment).
This
was not the case. 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. Subsequently, on 21 December 2001,
Parliament passed a further 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 (see paragraph 34 of
the judgment). On 11 July 2003, the date of entry into force of the
Local Planning Act 2003, any limitation on the applicant's property
rights was removed.
I
therefore consider that there has been a violation of Article 1 of
Protocol No. 1, but only in respect of the period from 1 January 2000
to 11 July 2003. This was accepted by the applicant (see
paragraph 25 of the applicant's observations) and I do not see any
valid reason to extend the applicability ratione temporis of
Protocol No. 1 to previous periods. Consequently, I have some
difficulties with what I consider to be a kind of ambiguity in the
examination of this issue.
In
paragraph 43 of the judgment, my distinguished colleagues do not make
any distinction between measures adopted before and after 10 October
1994 (i.e. before and after ratification), and consider the violation
a continuing one.
In
paragraph 46, they seem to accept that the violation covers only the
period after ratification of Protocol No. 1 by Poland.
In
paragraph 80, they refer to the whole period during which the
applicant's property rights were limited, from 1993 (when the plan
was adopted) to 31 December 2003. Here I have an additional
difficulty, since any limitation on the applicant's property rights
came to an end on 11 July 2003. The applicant's application for
planning permission to build a house
was granted on 25 August 2003. This was accepted by both parties and
I cannot understand why the Court should determine the “final”
date as 31 December 2003.
I
disagree with the majority's approach on this point. I consider that
a clear line should have been drawn between measures within the scope
of the Court's supervision and those outside it.
Furthermore,
nowhere is a distinction made between what I consider the first
period (from the adoption of the plan in 1993 to 31 December 1999,
the date of expiry of the plan) and the second one (1 January 2000 to
11 July 2003), which I regard as the only critical period. This
probably means that the majority consider that, in any event, a
violation has to be found for at least some time before 1 January
2000, a conclusion with which I deeply disagree.
