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FOURTH
SECTION
CASE OF SKIBIŃSCY v. POLAND
(Application
no. 52589/99)
JUDGMENT
(Just
Satisfaction)
STRASBOURG
21
October 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Skibińscy v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 30 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 52589/99) against the
Republic of Poland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Polish nationals, Ms
Urszula Skibińska and Mr Henryk Skibiński (“the
applicants”), on 2 March 1999.
- In
a judgment delivered on 14 November 2006 (“the principal
judgment”), the Court held that there had been a violation of
Article 1 of Protocol No. 1 of the Convention. It held that
the applicants' right to the peaceful enjoyment of their property had
been breached since the land they owned had been designated for
expropriation at some undetermined future date. As a result, they had
been refused final construction permits and under domestic
legislation were not entitled to any compensation for this
interference with their ownership.
- Under
Article 41 of the Convention the applicants sought just
satisfaction for pecuniary damage in the amount of 1,160,500 Polish
zlotys (PLN).
- The
applicants further sought compensation for non pecuniary damage
in the sum of PLN 200,000.
- Since
the question of the application of Article 41 of the Convention
was not ready for decision as regards pecuniary and non pecuniary
damage, the Court reserved it. However, it awarded the applicants
EUR 1,647 (one
thousand six hundred and forty seven euros) in respect of costs and
expenses.
- The
Court further invited the Government and the applicants to submit,
within six months of the date on which the judgment became final in
accordance with Article 44 § 2 of the Convention,
their written observations on the matter and, in particular, to
notify the Court of any agreement that they might reach (ibid., point
2 of the operative provisions).
- The
applicants and the Government each submitted observations.
THE LAW
- 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
1. Pecuniary damage
- In
their submissions prior to the adoption of the principal judgment the
applicants sought compensation in the amount of PLN 1,160,500.
This
amount was broken down as follows:
(i) PLN 8,635
in respect of real estate taxes which the applicants had had to pay
for the property from 1995 until the end of 2004;
(ii)
PLN 9,000 in respect of reimbursement of maintenance costs of
the property;
(iii)
PLN 100,000 in respect of material damage which the property
sustained during the material time;
(iv)
PLN 5,000 in respect of damage resulting from repeated
burglaries at the property;
(v)
PLN 837,884 corresponding to the price which the applicants
could have obtained if their plan to have their property divided into
smaller construction plots and sold to private parties had been
brought to fruition, with the capital thus obtained being paid into
their bank account plus interest accruing from February 1995 to July
2003.
- After
the principal judgment had been adopted, the Government argued that
the applicants had not suffered any pecuniary damage. In any event,
the Court should take into consideration, when fixing the amount of
just satisfaction, that it had found that the interference complained
of had been both lawful and pursued a legitimate aim. In the light
thereof, any compensation to be awarded should be limited to the
actual damage. They further referred to the Court's judgments in
which it had accepted that the need for protection of the State's
financial security in periods of transition of its political and
economic system could justify reduction or even a total lack of
compensation for damages suffered by the applicants (Jahn and
Others v. Germany [GC], nos. 46720/99, 72203/01 and
72552/01, ECHR 2005 VI). Such considerations, in the
Government's view, were also relevant for the purposes of the present
case. They further submitted that also the temporary character of the
restrictions imposed on the applicants, which had come to an end on
31 December 2003, supported a conclusion that the applicant's
claim for pecuniary damages should be dismissed.
- The
Government further submitted that the restrictions complained of
applied only to a part of the applicants' property. There had been a
number of plots which remained unaffected.
- The
Government argued that in any event the applicants' rights were only
slightly affected by the measures complained of. Under the 1979 local
land development plan certain plots were designated for agricultural
purposes. The adoption of the amendments to that plan in 1994 did not
affect these plots. As to the land designated for construction
purposes, the actual right to start the construction could only be
derived from the initial approvals for developments (decyzja o
warunkach zabudowy). The applicants obtained such approvals on
17 December 1991, but they were valid only for a period of one
year. The applicants failed to start any building projects during
this period. Hence, there were no grounds on which to accept that
they had suffered any pecuniary damage as a result of the adoption of
the 1994 amendments to the land development plan.
- The
Government further submitted that throughout the period concerned the
applicants' land could have been used for commercial or other
business operation not requiring any building projects. Further, the
applicants were able to continue to use parts of their real estate
for agricultural purposes.
- As
to the scope of damage which should be covered by just satisfaction
for the violation of the Convention, the applicants submitted that
the current legislation, the 2003 Local Planning Act, provided that
entitlement to compensation arose immediately when a given property
was reserved for a future expropriation. In their case not only had
they not had any right to compensation, but this state of affairs had
lasted for nine years. This factor necessarily had to be taken into
account when fixing just satisfaction, which should also include lost
profits.
- The
applicants further submitted that their claim for just satisfaction
related only to those plots which had been affected by the changes
made to the 1979 plan in 1994. During the period concerned the plots
designated under the 1979 plan as amended in 1994 for building
purposes could not be sold or put to any other use as prospective
buyers had lost interest upon learning about the pending construction
of the ring road in the vicinity. Likewise, the state of legal
uncertainty as to the fate of the real estate made it impossible for
them to use it in a commercially profitable way. Potential buyers and
business partners abandoned their intentions after studying the local
land development plan. Hence, the Government's argument that they had
not suffered any damage was, in the applicant's view, clearly
erroneous.
- The
applicants submitted that under the 1979 plan a part of their land
had been designated for building purposes. In 1991 they had obtained
an initial approval for a development project on that part and a
permit to divide it into smaller plots suitable for construction. The
fact that they had not proceeded with the construction within one
year of obtaining the initial approval was immaterial for the
assessment of just satisfaction. This was so because they had derived
their right to build on the land from the 1979 plan, not from the
decisions given in 1991, and this right had been taken away from them
on the strength of the changes made to it in 1994.
- The
applicants further argued that even assuming that it might be
legitimate to rely on the fundamental transition of the country as
justification for the interference - an assumption which the
applicants challenged - it should be noted that the prolongation of
the periods during which they had no right to compensation had
resulted from a widespread inability of local municipalities to
conduct proper planning policies and to adopt and update land
development plans. Such a situation obtained also in the municipality
of Częstochowa, which had not to date applied a new land
development plan since the one adopted in 1979 had ultimately expired
on 31 December 2003.
- The
Court reiterates that where it has found a breach of the Convention
in a judgment, the respondent State is under a legal obligation to
put an end to that breach and make reparation for its consequences.
If national law does not allow - or allows only partial - reparation
to be made, Article 41 empowers the Court to afford the injured party
such satisfaction as appears to it to be appropriate. The Court
enjoys a certain discretion in the exercise of that power, as the
adjective “just” and the phrase “if necessary”
attest. In particular, if one or more heads of damage cannot be
calculated precisely, the Court may decide to make a global
assessment (see Comingersoll S.A. v. Portugal [GC],
no. 35382/97, § 29, ECHR 2000-IV).
-
In its principal judgment in the present case the Court found that
there had been a violation of the general rule of peaceful enjoyment
of possessions, enshrined in the first sentence of Article 1 § 1
of Protocol No. 1 to the Convention, in that the applicants'
land had been designated for expropriation at some undetermined
future date. The measures complained of significantly reduced the
effective exercise of that right. Not only were the applicants
prevented from bringing their construction projects to fruition,
their property was also to be expropriated at some undetermined
future date, without there being any provision for compensation under
the applicable laws (§ 79). Moreover, even after the
relevant legislation was repealed in 2003, the currently applicable
legislation did not provide for any retrospective right to
compensation for the prejudice suffered (§ 95).
- The
Court notes in this connection that in the principal judgment it
found that there was an interference with the applicant's right to
the peaceful enjoyment of their possessions (paragraphs 74 84 of
the principal judgment). It further observes that as early as 1994
the national legislator found it necessary to ameliorate the
situation of owners by creating for them a right to compensation for
damage resulting from expropriations to be carried out at a future
undetermined point of time (see paragraphs 33 34 of the
principal judgment). It was the mere fact of such an expropriation
being pending which entitled the owners, under the Local Planning Act
1994, either to have their plots bought by the municipality or
replaced by other plots, or to obtain compensation. The Local
Planning Act 2003 maintained these compensation entitlements
(paragraphs 44 and 51 53 of the principal judgment). Hence, the
legislature accepted that the prospect of a future expropriation was
sufficient to give rise to compensation.
- In
disputing the award of pecuniary damage to the applicants, the
Government rely on the need for protection of the State's financial
security when its political and economic system is in a period of
transition. The Court recalls that it addressed a similar argument in
the principal judgment, in which it observed that difficulties facing
legislatures in having to deal with the complex issues involved in a
period of transition could not exempt Member States from their
obligations stemming from the Convention or its Protocols (see
paragraph 96 of the principal judgment). The Court notes, in any
event, that notwithstanding the economic and other difficulties that
it faced, the legislature itself accepted in the Acts of 1994 and
2003 that owners of land designated for future expropriation should
in principal be compensated for the pecuniary damage thereby
suffered.
The
Court cannot accordingly accept the Government's view that the
applicants should not be awarded any sum by way of pecuniary damage
or that a distinction should be drawn in this respect between
“actual” damage and loss of profits sustained by the
applicants.
- Having
regard to its findings made in the principal judgment, the Court is
of the view that the applicants cannot be deemed to have lost title
to their property and that the compensation to be awarded by this
Court in such cases is confined to losses emanating from the
restrictions on control, use and enjoyment of his property.
- In
this connection, the Court observes that the applicants listed as
damage the amounts which they had paid in real estate taxes, for
maintenance costs and in respect of damage resulting from repeated
burglaries on the property. The Court fails to see any causal link
between these amounts and the violation found in the principal
judgment. In so far as the applicants refer to the amount of material
damage which the property sustained during the material time, the
Court notes that it has not been shown or quantified precisely what
kind of damage the property suffered.
- The
Court further notes that the applicants claimed PLN 837,884,
corresponding to the price which, according to their submissions,
they could have obtained if their plan to have their property divided
into smaller construction plots and sold to private parties had been
brought to fruition, with the capital thus obtained being paid into
their bank account plus interest accruing from February 1995 to July
2003. However, the Court is of the view that this claim for loss of
profit is based on the assumption that the applicants would have sold
all the plots concerned, whereas from 1992 until 1994, when the
amendments to the plan were adopted, the applicants sold only five of
them. As such, it is speculative and unsubstantiated.
- However,
the Court is of the view, having regard to the circumstances of the
case seen as a whole, that the applicants suffered pecuniary damage
which, under the applicable domestic law, cannot be compensated.
Having regard to the above considerations and to the great disparity
in the parties' positions the Court, making its overall assessment on
an equitable basis, awards to the applicants EUR 15,000 in respect of
all pecuniary damage.
2. Non-pecuniary damage
- The
Government referred to the Court's judgment in Rosiński
v. Poland, no. 17373/02, 17 July 2007, where the
applicants were awarded EUR 5,000 for non pecuniary damage
suffered in a similar case. They submitted that any award to be made
in the present case under this head should correspond to that award.
- The
applicants submitted that their case was different in that their
property was much bigger. They also argued that, in contrast with the
Rosiński case which concerned a small plot of land, they
had, being owners of a large property situated in a big town, based
their life prospects on plans of deriving considerable profit from
it. Their projects had been frustrated both by the adoption of the
1994 amendments and by the fact that they had no right to
compensation.
- The
Court reiterates that it has found in a number of cases concerning
similar factual and legal situations that applicants who only claimed
non pecuniary damages had sustained such damage on account of a
violation of Article 1 of Protocol No. 1 to the Convention
(see Rosiński v. Poland, no. 17373/02, 17 July
2007; Skrzyński v. Poland, no. 38672/02,
6 September 2007; and Buczkiewicz v. Poland,
no. 10446/03, 26 February 2008). It finds no grounds on
which to hold otherwise in the present case and accordingly awards
the applicants EUR 5,000.
B. Costs and expenses
- The
applicants have not made a claim for costs sustained in connection
with the proceedings after the principal judgment had been adopted.
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
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Polish zlotys at the rate applicable at
the date of settlement:
(i) EUR
15,000 (fifteen thousand euros), plus any tax that may be
chargeable,in respect of pecuniary damage;
(ii) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicants' claim for just satisfaction.
Done in English, and notified in writing on 21 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
