FOURTH SECTION

DECISION

Application no . 16572/13 Barbara WILCZYŃSKA against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 3 February 2015 as a Chamber composed of:

Guido Raimondi , President, George Nicolaou , Ledi Bianku , Nona Tsotsoria , Zdravka Kalaydjieva , Paul Mahoney , Krzysztof Wojtyczek , judges,

and Françoise Elens-Passos, Section Registrar ,

Having regard to the above application lodged on 21 February 2013 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Barbara Wilczyńska , is a Polish national, who was born in 1963 and lives in Cracow.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is a co-owner of four plots of land located in Nowy S Ä… cz .

3. On 18 May 2010 the Nowy S ą cz Municipal Council adopted a new local development plan. The plan stipulated that a public road was to be constructed on the applicant ’ s property .

4. On 25 March 2011 the applicant formally requested the Municipal Council to alter the local development plan and to adopt a different location for the future road. The Municipal Council refused this request in a resolution adopted on 28 April 2011.

5. On 18 May 2011 the applicant filed a complaint with the Cracow Regional Administrative Court against the resolution of 18 May 2010. She alleged, inter alia , that the local development plan had unlawfully designated part of her property for a future road. She argued that such a designation resulted in restrictions on developing her property and the reduction in its value. This amounted to a breach of her property rights.

6. The Cracow Regional Administrative Court on 18 November 2011 dismissed the applicant ’ s complaint. It found that the local development plan constituted an interference with the applicant ’ s property rights which, however, was justified by the public-interest considerations. The plan did not affect the core of the applicant ’ s property rights since she retained the possibility to use and to dispose of the property. With regard to the alleged reduction in the value of the property, the court noted that the applicant could have pursued her compensation claim under section 36 of the 2003 Act.

7. The applicant filed a cassation appeal. She argued, inter alia , that the Regional Administrative Court had erroneously applied the provisions of the 2003 Act. In this respect she submitted that the local development plan had deprived her of the possibility to develop her property and resulted in the reduction of its value. The applicant further alleged that the municipality had not adopted an alternative, less onerous, proposal for the location of the road.

8. On 1 June 2012 the Supreme Administrative Court dismissed her cassation appeal. It concurred with the lower court that the location of a road retained by the municipality had been the most favourable to the applicant ’ s interests. The Supreme Administrative Court found that the interference with the applicant ’ s property rights had not been excessive since only part of her property had been designated for a road while the remaining part could be developed.

9. The Supreme Administrative Court ’ s judgment was served on the applicant on 24 August 2012.

B. Relevant domestic law

1. Earlier laws on local planning

10 . From 1 January 1985 to 31 December 1994 questions of land development were governed by the Law of 12 July 1984 on Local Planning. Under this law 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.

11 . On 7 July 1994 a new Law on Local Planning was enacted (“ the 1994 Act”). It entered into force on 1 January 1995.

12 . Section 36 of the 1994 Act 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.

13 . However, pursuant to section 68 § 1 of the 1994 Act, these obligations and the corresponding claims of the owners applied only to plans adopted after the 1994 Act had entered into force, i.e. to plans adopted by local authorities after 1 January 1995.

14 . Pursuant to the 199 4 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 1994 Act which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995.

2. The 2003 Law on Local Planning

15 . On 27 March 2003 a new Law on L ocal Planning was enacted (“the 2003 Act”). It entered into force on 11 July 2003 and repealed the 199 4 Act. Under section 87 of the 2003 Act, all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003.

16. Compensation entitlements for owners, provided for by the 1994 Act, were in essence maintained by th e 2003 Act. Pursuant to section 36 of the latter 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 had become impossible or had been restricted, it was open to the owner to claim compensation from the municipality for actual damage sustained , or to request the municipality to buy the plot or its part . These claims may be also satisfied by the provision of an alternative property to the owner by the municipality. Any litigation which might arise in this respect between local authorities and owners could be pursued before the civil courts.

COMPLAINT

17. The applicant alleged a breach of Article 1 of Protocol No. 1 to the Convention . She complained that the location of a future road had adversely and disproportionately affected her property rights. The road was to cross her property and surround her family house. Furthermore, two of her plots lost the status of constructible land while the two remaining ones had been reduced.

THE LAW

18. The applicant complained under Article 1 of Protocol No. 1 to the Conventio n about the adverse effects on her property resulting from the local development plan adopted in 2010. The plan stipulated that a public road was to be constructed on her property.

19. The Court recalls that it has dealt with similar issues in a series of judgments against Poland starting with the case of Skibińscy v. Poland , no. 52589/99, 14 November 2006 (see, Rosiński v. Poland , no. 17373/02, 17 July 2007 ; Skrzyński v. Poland , no. 38672/02, 6 September 2007 ; Pietrzak v. Poland , no. 38185/02, 8 January 2008 ; Buczkiewicz v. Poland , no. 10446/03, § 26 February 2008 ) in which it found a violation of Article 1 of Protocol No. 1 of the Convention. In all these cases the applicants ’ property rights were affected by local development plans which designated their property for public use at an undetermined future date . The measures complained of, taken as a whole, although in law they left intact the applicants ’ right to continue to use and dispose of their possessions, nevertheless in practice they significantly reduced the effective exercise of that right. The applicants ’ propert ies were to be expropriated at some undetermined future date, without there being any provision for immediate compensation under the applicable laws (see, Skibińscy , cited above, § 79).

20. The Court recalls 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, the compensatory measures foreseen in section 36 of the 1994 Act were conditional in that it applied only to local development plans adopted after 1 January 1995.

21. On 11 July 2003 a new Law on Local Planning (“the 2003 Act”) entered into force. Under the 2003 Act all local developments plans adopted prior to 1 January 1995 expired by 31 December 2003. Section 36 of the 2003 Act granted a right to compensation to owners who were restricted in the use of their property as a result of the adoption of a new local development plan. Such claims can be pursued before civil courts.

22. The applicant in the present case finds herself in precisely that situation. She claims that her property rights were adversely affected as a result of the adoption of the local development plan in 2010. The Court notes that she was advised by the administrative courts to pursue her compensation claim under section 36 of the 2003 Act. It finds that the applicant was required to avail herself of the compensatory remedies set out in section 36 §§ 1-2 of the 2003 Act before having seized the Court.

23. The Court reiterates that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. The Court cannot emphasize enough that it is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports 1996 ‑ IV; and Demopoulos and Others v. Turkey ( dec. ) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 69, ECHR 2010).

24. It follows that th e application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 26 February 2015 .

Françoise Elens-Passos Guido Raimondi Registrar President