Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31491/96

by Kazimierz SWAT

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 May 1995 by

Kazimierz SWAT against Poland and registered on 15 May 1996 under file

No. 31491/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1948, is a farmer,

residing in Slupsk.

The facts of the case, as submitted by the applicant, may be

summarised as follows:

He owns a plot of land in Slupsk, located at the outskirts of the

town.

On 30 March 1989 the Slupsk Municipal Office informed the

applicant's mother that according to the local master plan a road would

be built on the plot No. 29 at Szczecinska Street.

On 4 June 1989 the applicant's mother requested that the plot

No. 52, located at Szczecinska Street in Slupsk, of which she was the

owner, was reclassified from agricultural to construction plot.

On 4 June 1989 the Slupsk Municipal Office informed the

applicant's mother that in order for agricultural property to be used

for non-agricultural purposes a permission of the Minister of

Agriculture was necessary. As no such permission had been issued with

regard to his plot, it could not be used for any other purposes than

agricultural and in particular not for building a house on it.

On 10 December 1990 the applicant's mother donated the plot

No. 52 to the applicant and his sister.

On 9 August 1993 the applicant requested the Slupsk Municipal

Office to assign him another plot to replace the plot concerned, in

view of its function under the local master plan.

On 11 January 1994 the applicant complained to the Ombudsman that

he could not use his plot. Due to its function under the local plan

it had lost any commercial value and could de facto not be sold. The

municipality had refused to buy it from the applicant, even though it

was uncertain when the construction would begin, and his efforts to

obtain another plot in exchange proved fruitless. He complained that

his plot should not serve as a reserve property for the municipality

and that his property right had become economically meaningless.

In a letter of 11 March 1994 the Ombudsman office informed the

applicant that the general problem of restriction on property rights

of persons in a situation identical to that of the applicant had been

submitted to the attention of the Minister of Construction on

6 November 1994. The Ombudsman had drawn the Minister's attention to

the fact that such situation amounted to a breach of property rights

and proposed that new legislation in this respect be adopted. This

legislation would oblige local authorities either to buy plots

concerned or to replace those plots by other plots, within six months

from the date on which a relevant request was submitted. This

legislation was being discussed by the Parliament (Sejm), but no

decision had yet been taken.

In a letter of 11 April 1994 the Municipal Office, in reply to

the applicant's letter of 9 August 1993, informed him that the

Municipal Council had approved the local master plan according to which

the plot No. 52 remained designed for road construction. Until the

beginning of the works, the plot could be used in the manner in which

it had been hitherto used.

On 1 and 10 May 1994 the applicant requested the Slupsk Municipal

Office to give him another plot of land to replace his "frozen" plot.

He referred to the Ombudsman's letter of 11 March 1994. He submitted

that in view of the fact that his property rights were breached he

requested that he be assigned another plot within six months from the

date of his letter, as envisaged in the new regulations to be adopted.

This letter apparently remained unanswered.

In reply to the applicant's request of 26 March 1997, on

3 April 1997 the Slupsk Municipal Office informed him that under the

local master plan his plot remained assigned for road construction.

On 26 March 1997 the applicant requested the Slupsk Municipal

Office to grant him compensation.

Relevant domestic law

Under Article 36 of the Law on Local Planning, adopted on

7 July 1994, the local authorities are obliged either to buy plots

designed for expropriation under local master plans which are not being

realised, or to replace those plots by other plots within six months

from the date on which a relevant request was submitted, or to award

compensation for the damage caused by fact that the plot is designed

for future expropriation. Under Article 36 of the Act, this obligation

applies only to the plans which were adopted before the Act entered

into force.

COMPLAINTS

The applicant complains in substance under Article 1 of Protocol

No. 1 to the Convention that his right to peaceful enjoyment of

property is breached by the fact that he cannot use his plot for

construction purposes, that it lost any commercial value due to its

being designed for road construction under the local master plan and

that the municipality does not comply with his request to replace it

by another plot.

THE LAW

The applicant complains in substance under Article 1 of Protocol

No. 1 (P1-1) to the Convention that his right to peaceful enjoyment of

property is breached.

However, the Commission is not required to decide whether or not

the facts submitted by the applicant in support of his complaint

disclose any appearance of a violation of the Convention as Article 26

(Art. 26) of the Convention provides that the Commission "may only deal

with a matter after all domestic remedies have been exhausted".

In the present case the applicant has not shown that any

administrative decisions were pronounced as regards compensation claims

under Article 36 of the Law on Local Planning, against which the

applicant could ultimately lodge an appeal with the Supreme

Administrative Court.

It follows that the application must be rejected for non-

exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3)

of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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SWAT v. POLAND

SWAT v. POLAND

LEXI