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FOURTH
SECTION
CASE OF SKRZYŃSKI v. POLAND
(Application
no. 38672/02)
JUDGMENT
STRASBOURG
6
September 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 Skrzyński v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr K. Traja,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 10 July 2007,
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 Piotr Skrzyński
(“the applicant”), on 15 April 2002. The applicant was
represented by Mr Adam Bodnar 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 rights resulting from the future
expropriation.
- On
17 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 1952 and lives in Milanówek.
- Since
1991 the applicant has owned a plot of land located in the
municipality of Milanówek, near Warsaw. It is listed in the
local land register under entry no. 31737.
- Under the local land development plan adopted in 1981,
which was
in force in 1991 when the applicant acquired the land
concerned, it was situated in an area described as “the
agricultural area without the right
to construction, reserved for
a future zone designated for recreational purposes”. The 1981
plan remained in force until 1993.
- On
30 March 1993 the Municipal Council of Milanówek, in a public
procedure provided for by relevant planning legislation, adopted a
resolution by which the local land development plan was accepted. The
applicant's land was included in an area in which a ring-road and a
hospital were to be constructed in the future.
- The
applicant and his neighbours lodged a complaint against the Council's
resolution with 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 into consideration and
to reconcile various interests of the municipality and the local
owners. As a result, the plan which had been adopted was unreasonable
and did not comply with standards of good land administration.
- They
were informed that the Supreme Administrative Court was competent to
examine their complaint.
- By
a judgment of 25 September 1995 the Supreme Administrative Court
dismissed the complaint, finding 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
restrictions on ownership imposed by the land development measures
were not per se incompatible with the nature of ownership as
guaranteed by the Civil Code.
- On
8 February 1999 the applicant requested that an initial approval for
a development project on his land be issued.
- On
27 March 2000 the applicant submitted to the Mayor of Milanówek
a request that his land either be acquired by the municipality or
that he be given another plot of land.
- In
a letter of 12 April 2000 the Municipal Office informed the applicant
that his request of 8 February 1999 had not been examined as he had
failed to submit an appropriate plan with it. He was further informed
that the validity of the 1993 plan had been prolonged by Parliament
for two more years, until the end of 2001.
- On
12 May 2000 the Marshal of the Mazowsze Region informed the applicant
that the construction of the roadway was undoubtedly in the interests
of the inhabitants of Milanówek, but that no funding would be
provided for it in the financing scheme for the regional land
development plan until at least 2010.
- On
17 July 2000 the applicant renewed his request for an initial
approval for a development project on his land. He wished to have a
house built on it.
- On
1 September 2000 the Mayor of Milanówek refused his request,
finding that the project as submitted by the applicant was
incompatible with the local land development plan.
- The
applicant appealed, submitting that there were no immediate plans to
build the road, there was no financing earmarked for it in the
relevant public budgets, and that his right to the peaceful enjoyment
of his property had been breached by the continuing restrictions on
the use of his land in view of its future expropriation at some
undetermined point of time.
- On
19 December 2000 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 for the municipality of
Milanówek.
- The
applicant appealed to the Supreme Administrative Court, arguing that
since the adoption of the 1993 plan he had been restricted in the use
of his property; that the municipality had refused to acquire his
land or to provide him with another plot; and that this amounted to a
breach of his right to the peaceful enjoyment of his possessions as
well as of various provisions of the Constitution. He stressed that
under the applicable laws he did not have any right to compensation
for the protracted restrictions on the exercise of his ownership.
- In
2001 the applicant requested the municipality three times to either
acquire his land or to grant him another plot. His requests were
unsuccessful.
- On
2 July 2002 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 1994 Local Planning Law. The court referred
to the judgment of the Constitutional Court given in 1995 (see
paragraph 54 below). The Constitutional Court had examined the
compatibility with the Constitution of section 68 § 1 of the
Land Planning Act 1994 insofar as it excluded the application of the
owners' right to compensation provided for in section 36 of that Act
to land development plans adopted before 31 December 1994. It found
that this provision was compatible with the Constitution.
The
Supreme Administrative Court observed that it was not its task to
amend or to 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 was unlawful.
- On
31 December 2002 the validity of the 1993 land development plan
expired.
-
On 25 August 2003 the applicant was granted an initial planning
permission (decyzja o warunkach zabudowy) and on 25 November
2003 a final building permission (zezwolenie na budowę).
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 27 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
30 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. Judgments 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
39. 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
ratified Protocol No. 1 to the Convention.
40. 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 that had taken place before the date of
ratification should be taken into account as a relevant background
for the assessment of the 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 right guaranteed
by Article 1 of Protocol No. 1 to the Convention. The
applicant referred to the Court's judgment given in the case of
Skibińscy v. Poland (no. 52589/99, 14 November 2006)
concerning a similar set of facts with the same legal background
where the Court had been of the view that it had temporal
jurisdiction to examine that case.
- The Court's jurisdiction ratione temporis
covers only the period after the date of ratification of the
Convention or its Protocols by the respondent State. From the
ratification date onwards, all the State's alleged acts and omissions
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 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 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 further 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 a set of restrictions
imposed on the exercise of his ownership and arising from various
legal measures, adopted both before and after that date. The
Government's plea of inadmissibility on the ground of lack of
jurisdiction ratione temporis must accordingly be rejected.
2. Incompatibility ratione materiae with the provisions of the
Convention
- The
Government submitted that the applicant had acquired in 1991 a plot
which was of an agricultural character, without the right to build on
it. Hence, he could not be said to have had any legitimate
expectation that in the future he would be allowed to build on his
plot. 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 for eight
years (see paragraphs 65 – 69 below), rather than to the mere
refusal of a building permit. 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 obtained the aim he sought to attain before the
Court, namely an assessment of whether the contested regulations as
applied to his case had infringed his rights guaranteed by the
Convention. He should have lodged this complaint against the judgment
of the Supreme Administrative Court of 2 July 2002 dismissing the
applicant's appeal against the refusal of the initial planning
permission. It was open to the applicant to challenge, by way of a
constitutional complaint, section 68 § 1 of the Local Planning
Act 1994 the operation of which was prolonged for further periods by
the Acts of 22 December 1999 and 21 December 2001.
- The
Government further argued that the applicant should have lodged a
civil action with 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 with the Constitutional Court to challenge 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 civil liability of public authorities
were not applicable to his case because section 69 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
submitted that under the provisions of the Local Planning Act as
adopted in 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 these restrictions. As a
result, the restrictions complained of were applicable to the
applicant's situation for an overall period of eight years.
- The Court recalls that the object of the rule on
exhaustion of domestic remedies is to allow the national authorities
(primarily the judicial authorities) to address the allegation made
of violation of a Convention right and, where appropriate, to afford
redress before that allegation is submitted to the Court (Kudła
v. Poland
[GC], no. 30210/96, § 152, ECHR 2000-XI). The
Court further reiterates that Article 35 of the Convention,
which sets out the rule on exhaustion of domestic remedies, provides
for a distribution of the burden of proof. It is incumbent on
the Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant's
complaints and offered reasonable prospects of success (Selmouni
v. France [GC], no. 25803/94, § 76, ECHR 1999-V
and Mifsud v. France (dec.) [GC], no. 57220/00, ECHR
2002-VIII).
- The
Court has already dealt with the question of the effectiveness of the
Polish constitutional complaint (Szott-Medyńska v.
Poland (dec.), no. 47414/99, 9 October
2003; 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 of the
Convention resulted from the direct application of a legal provision
considered by the complainant to be unconstitutional.
- In
the instant case, the Court notes that the essence of the applicant's
complaint is that as a result of the expropriation to be carried out
at a future undetermined date he was not entitled to compensation for
a protracted period of uncertainty which was twice prolonged by the
legislator. Likewise, he was not entitled to obtain land to replace
the plot designated for expropriation. He did not have a claim
against the municipality to make it acquire his property before the
planned expropriation. Lastly, as a result of the decision given by
the municipality, he was also prevented from pursuing any development
projects on his property.
-
The Court further notes that the provisions of the Local Planning Act
1994 were examined by the Constitutional Court in 1995. That court
held that they were compatible with the obligation of the State to
protect private property laid down in the Constitution of 1952 (see
paragraph 37 above). Moreover, the Supreme Administrative Court, in
its judgment of 2 July 2000, based its reasons for dismissing the
applicant's appeal against the refusal of the initial planning
permission on this judgment.
- Lastly,
the Court observes that the applicant's requests to the municipality
by which he sought to obtain compensation for the fact that his
property had been “frozen” under the 1993 plan were
refused (see paragraph 21 above). Under applicable provisions of
domestic law a constitutional complaint in administrative proceedings
is open only against a final decision issued by the administrative
court. However, the authorities did not issue administrative
decisions against which an appeal to the administrative court would
lie. Hence, the Court considers that it has not been shown that in
the circumstances of the case the constitutional complaint was
available to him.
- 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. Hence,
this remedy did not offer any prospects of success.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The 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 plot, the applicant would not automatically have had
the right to use it for housing construction, 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 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 on this land. He had been entitled to use or dispose of
his plot only within the limits prescribed by the law, the principles
of reasonable social co-operation 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
the restrictions were imposed on the property in the centre of the
capital.
60. The
Government submitted that the measures complained of had pursued the
legitimate aim of securing land in connection with the implementation
of the local land development plan. As the Court acknowledged on many
occasions, this corresponded to the general
interest of the community. 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.
- The
procedure for the adoption of the 1993 local development plan had
involved local society in accordance with the 1984 Local Planning
Act. All stages of the procedure had been public
and the
inhabitants of the municipality had been able to comment on the draft
plan. The draft plans had been subject to consultation with the
inhabitants, including the applicant. The objections raised by the
owners concerned, including the applicant, 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 to use the property for
agricultural purposes in the same way he had used it prior to the
entry into force of the 1994 Act. Hence, the present case was
different from the situation in which the Court had found a violation
of Article 1 of Protocol No. 1 to the Convention in the case
Immobiliare Saffi
v. Italy ([GC], no. 22774/93, ECHR
1999 V) in that the applicant could freely enjoy
his ownership.
- 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. After that date the applicant acquired the
possibility of using his plot for construction purposes (see
paragraph 24 above).
- 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 was not entitled to any
compensation for this interference with his ownership.
- It
was true that he had not been formally deprived of his possessions
since he had remained the lawful owner of the land throughout the
period covered by the present case. However, as a result of the
planning measures taken in his case 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 plot, 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 plots had been significantly
reduced as a result of the adoption of the 1993 plan and the
consequential uncertain fate of the property affected by the future
expropriation.
- 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 for an individual owner a right to demand
that the public authorities designate his property to be used for
specific purposes, including housing construction purposes. However,
in the circumstances of the present case this provision should be
regarded as obliging the public authorities to take measures to
eliminate uncertainty surrounding the fate of the property and, in
addition, to take into account, in the procedure leading to the
adoption of the local land development plan, the interests and
objections of the individual owners. It was unacceptable, in
the light of this provision, to deprive the owner of the peaceful and
unhindered enjoyment of his possession for such a long period.
B. The Court's assessment
1. General principles
-
The Court reiterates that Article 1 of Protocol No. 1 contains three
distinct rules. They have been described thus (in James and Others
v. the United Kingdom, judgment of 21 February 1986, Series A no.
98, pp. 29 30, § 37; see also, among many other
authorities, Belvedere Alberghiera S.r.l. v. Italy, no.
31524/96, § 51, ECHR 2000-VI):
“The first rule, set out in the first sentence of
the first paragraph, is of a general nature and enunciates the
principle of the peaceful enjoyment of property; the second rule,
contained in the second sentence of the first paragraph, covers
deprivation of possessions and subjects it to certain conditions; the
third rule, stated in the second paragraph, recognises that the
Contracting States are entitled, amongst other things, to control the
use of property in accordance with the general interest ... The three
rules are not, however, '''distinct' in the sense of being
unconnected. The second and third rules are concerned with particular
instances of interference with the right to peaceful enjoyment of
property and should therefore be construed in the light of the
general principle enunciated in the first rule.”
2. 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 a future expropriation of his land.
The Court first notes that the applicant's objections to the plan
were dismissed (see paragraphs 9-11 above). The Court further
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
point in time and in the absence of any indication, even approximate,
as to its future date.
- 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 was informed by the
municipality that under the applicable legislation the municipality
was not obliged either to acquire his property which was to be
expropriated in the future and that he had no right to compensation
for the fact that he could not freely use and dispose of his property
in the light of the future expropriation (see paragraph 21 above). In
addition, his request for an initial approval of a development
project on his land was refused in 2001, with reference to the 1993
land development plan which was in force at that time.
- To
sum up, the measures complained of, taken as a whole, although in law
they left intact the applicant's right to continue to use and dispose
of his possessions, nevertheless in practice they significantly
reduced the effective exercise of that right. The applicant's
property was to be expropriated at some undetermined future date,
without there being any provision for immediate compensation under
the applicable laws. The applicant's right of property thus became
precarious and defeasible (mutatis mutandis, Sporrong and
Lönnroth v. Sweden, cited above, §§ 58-60;
Skibińscy v. Poland, cited above, § 79).
- The
Court is therefore of the view that there was interference with the
peaceful enjoyment of the applicant's possessions. The Court further
considers that the measures complained of did not amount to
expropriation. Likewise, they cannot be regarded as control of use of
property. Accordingly, the interference falls to be examined under
the first sentence of Article 1 of Protocol No. 1.
3. Whether the interference was “provided for by
law”
- The
Court recalls that the first and most important requirement of
Article 1 of Protocol No. 1 is that any interference by a public
authority with the peaceful enjoyment of someone's possessions should
be lawful (see Iatridis v. Greece [GC], no. 31107/96, §
58, ECHR 1999 II).
- The
Court observes that the applicant's situation was affected by future
expropriation for the purposes of the land development plan and by
the lack of any effective entitlement to compensation.
- The
Court notes that the first two measures were taken on the basis of
the Local Planning Act 1994. As to the applicant's situation
regarding compensation, it was affected by the operation of specific
provisions of that Act which, by prolonging the validity of the local
development plan under the amendments to the Local Planning Act 1994,
effectively deprived him of any possibility of obtaining redress for
those measures (see paragraphs 30 - 33 above). The
interference complained of was therefore “provided by law”
within the meaning of Article 1 of Protocol No. 1 to the Convention.
4. Whether the interference was “in the general
interest”
- Any
interference with a right of property, irrespective of the rule under
which it falls, can be justified only if it serves a legitimate
public (or general) interest. The Court reiterates that, because of
their direct knowledge of their society and its needs, the national
authorities are in principle better placed than the international
judge to decide what is “in the public interest”. Under
the system of protection established by the Convention, it is thus
for the national authorities to make the initial assessment as to the
existence of a problem of public concern warranting measures
interfering with the peaceful enjoyment of possessions (see Terazzi
S.r.l. v. Italy, no. 27265/95, § 85, 17 October 2002, and
Elia S.r.l. v. Italy, no. 37710/97, § 77, ECHR
2001-IX).
80. In
the present case the Court accepts that already in 1994 the measures
complained of pursued the legitimate aim of securing land in
connection with the implementation of the local land development
plan. This corresponds to the general interest of the community (see,
mutatis mutandis, Cooperativa La Laurentina v. Italy,
no. 23529/94, § 94, 2 August 2001; Bahia Nova S.A.
(dec.), no. 50924/99, 12 December 2000; and Chapman v. the United
Kingdom, no. 27238/95, § 82, ECHR 2001-I).
5. Proportionality of the interference
- The
Court must examine in particular whether an interference with the
peaceful enjoyment of possessions strikes the requisite fair balance
between the demands of the general interest of the public and the
requirements of the protection of the individual's fundamental
rights, or whether it imposes a disproportionate and excessive burden
on the applicant (see, among many other authorities, Jahn and
Others 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 town
and country planning policy (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 of 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 plots. However, the Court
observes that the plan did not provide any timeframe within which the
ring-road and the hospital would be constructed. Further, in 2001,
eight years after the plan had been adopted, the Mazowiecki Governor
informed the applicant that the construction of the road would not be
budgeted for 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 throughout this period. This was
repeatedly confirmed by the municipal authorities, replying to the
applicant's requests (see paragraph 22 above). The Court emphasises
that this situation lasted for a long period of time: 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 1994 Local
Planning Act had a double effect: they extended the validity of the
local plan and also prolonged the period during which the applicant
could not claim any compensation from the municipality.
- In
this connection, the Court notes the Government's argument that the
provisions of the 1994 Act were intended to improve the situation of
owners, in that this Act introduced a right to compensation which
previously had never existed. They also pointed out the temporary
nature of the prolongations.
The
Court observes that it is not in dispute that the 1994 Act was
intended to improve the situation of owners to be expropriated in the
future in that a right to compensation was foreseen for them for the
first time in Polish law. However, in its assessment of the
proportionality of the measures complained of, the Court cannot
overlook the fact that, when enacting the 1994 Act, the legislature
on the one hand introduced compensatory provisions into law, but at
the same time excluded the application of those provisions in respect
of plans adopted before 1 January 1995. What is more, the legislature
subsequently prolonged this situation on three occasions, for an
overall period of nine years. Consequently, until 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 in
respect of his particular situation.
- 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 (see paragraph 35 above).
Such claims can be pursued before civil courts.
However,
it observes that these provisions started to operate only after the
2003 Act had entered into force and only in respect of local land
development plans adopted after that date. It has not been argued or
shown that the 2003 Act provides for any retrospective right to
compensation for the prejudice suffered by the applicant, before its
entry into force, as a result of restrictions originating in land
development plans adopted in the past. Consequently, the entry into
force of the 2003 Act did not alter the applicant's situation.
- The
Court notes the Government's argument that by adopting these
provisions the legislature had given the local government authorities
time to adjust land development plans to the new needs of the
municipalities, without the latter being obliged to compensate
individual owners for the consequences of local development plans
adopted before 1989, when the transformation of the legal and
economic system of the State had been undertaken.
The
Court is aware that the difficulties in enacting a comprehensive
legal framework in the area of urban planning constitute part of the
process of transition from a socialist legal order and its property
regime to one compatible with the rule of law and the market economy
– a process which, by the very nature of things, is fraught
with difficulties. However, these difficulties and the enormity of
the tasks facing legislators having to deal with all the complex
issues involved in such a transition do not exempt the Contracting
States from the obligations stemming from the Convention or its
Protocols (see Schirmer v. Poland, no. 68880/01, 21 September
2004, § 38).
- Lastly,
the Court notes that the applicant's request for an initial approval
of a development project on his land was refused in 2001. In the
refusal the authorities essentially referred to the provisions of the
land development plan. However, at the time when the applicant
requested the 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 interest of the community.
- In
the Court's view, given that it was uncertain whether the land
development plan would be implemented in the reasonably near future,
this state of affairs, seen as a whole, disclosed a lack of
sufficient diligence in weighing the interests of the owners against
the planning needs of the municipality.
- Having
regard to the above considerations, the Court is of the view that a
fair balance was not struck between the competing general and
individual interests and that the applicant had to bear an excessive
individual burden.
- 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 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 undoubtedly suffered
non-pecuniary damage as a result of the violation found above (see §§
81-92). It is of the view that the breach of Article 1 of Protocol
No. 1 caused the applicant distress and frustration on account of the
prolonged precariousness of his ownership of his property, which the
mere finding of a violation cannot adequately compensate (see, for
example, Elsholz v.
Germany [GC], no.
25735/94, §§ 70-71, ECHR 2000-VIII; Schirmer v. Poland,
cited above). Having regard to its case-law in similar cases (see,
among many other authorities, Eduardo Palumbo v. Italy, no.
15919/99, 10 November 2000, § 59, G.L.
v. Italy, no. 22671/93,
3.08.2000, § 49; A.O.
v. Italy, no. 22534/93,
30.05.2000, § 33) 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[s] 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 6 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas
Bratza
Registrar President
