FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62040/00 by Anna KOZUBEK against Poland

The European Court of Human Rights (Fourth Section), sitting on 11 December 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr S. Pavlovschi , Mr L. Garlicki , Ms L. Mijović , Mr J. Šikuta , Mrs P. Hirvelä, judges , and Mr T.L. Early , Section Registrar ,

Having regard to the above application lodged on 15 December 1999,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Anna Kozubek , was a Polish national who was born in 1917, lived in Cracow and died on 18 January 2003. She was represented before the Court by Mr Krzysztof Tor , a lawyer practising in Krakow . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz , of the Ministry for Foreign Affairs .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1954 the a p p licant inherited a plot of land located in Radość , Warsaw . In the 1940s and 1950s the local community made many investments to turn the area into a district park. On 31 May 1991 she a p p lied to the Warsaw Praga District Office ( Urz ą d Dzielnicy Praga Południe ) for information concerning construction on her p lot. In re p ly, she was informed that according to the l ocal master plan of 1982 ( plan zagospodarowania prze strze nnego ) her p lot was situated in an area designated for housing construction on forest grounds and had a forestry zone status. On 26 October 1992 the a p p licant lodged an a p p lication for a construction p ermit. Her a p p lication was dismissed on 12 November 1992.

On 30 December 1992, u p on the a p p licant ’ s appeal, this decision was quashed. On the same date the Mayor of Warsaw Praga ( Burmistrz D zielnicy G miny Praga-Południe ) stayed the p roceedings concerning construction on the a p p licant ’ s p lot pending the termination of proceedings relating to divesting the area of its forestry zone status. According to the new local master plan of 28 Se p tember 1992 , the a p p licant ’ s p lot was situated in an area designated for housing construction and community green s p aces . It was p ossible to construct a house on the p lot; however, only after the p lot had been divested of its forestry zone status. In addition the surface area of the house could not exceed 15% of the total area of the p lot.

In 1992 the Municipality began work on the plot with a view to preserving its district park function. On 29 October 1992 the a p p licant requested the Munici p ality to discontinue the work on her p ro p erty. On 9 November 1992 she was informed that the Munici p ality was considering buying the p lots situated in the p ark area.

On 30 A p ril 1993 the a p p licant lodged a complaint with the Warsaw Governor ( Wojewoda Warszawski ) alleging inactivity on the p art of the first-instance authority (as regards the p roceedings concerning the divesting of the forestry zone status). On 28 May 1993 the a p p licant a p p lied to the Warsaw Develo p ment Planning Office ( Biuro P l anowania Rozwoju Warszawy ) and asked that her p lot be divested of its forestry zone status. On 16 March 1994 the a p p licant asked for the p roceedings to be ex p edited.

On 20 December 1994 the Munici p ality recommended granting the a p p licant ’ s application: that the p lot in question be divested of its forestry zone status. On 5 May 1995 the a p p licant was informed that the Governor ’ s office had not su p p orted the Munici p ality ’ s recommendation.

Upon the a p p licant ’ s further enquiries, on 11 July 1995 the Warsaw Governor informed her that one of the reasons for rejecting the recommendation was that a group of 500 p eo p le had protested against any construction being carried out on the a p p licant ’ s plot and the adjacent plots.

On 26 October 1995 the Munici p ality lodged a motion with the Minister of Environmental Protection ( Minister Ochrony Środowiska , Zasobów Natur a l nych i Leśnictwa ) concerning the alteration of the use of the applicant ’ s p lot.

On 23 February 1996 an analysis of the legal and factual circumstances of the applicant ’ s and other owners ’ cases was prepared.

On 8 A p ril 1996 the Mayor of Warsaw Wawer ( Burmistrz G m iny Warszawa Wawer ) informed the a p p licant that according to the p rovisions of the Act of 1980 on environmental protection, the com p etent authority to buy the a p p licant ’ s p lot was the Warsaw District Office ( Urząd Rejonowy ). Consequently, on 26 A p ril 1996 the a p p licant ’ s case was transferred to the Warsaw District Office.

On 10 June 1996 the applicant ’ s daughter asked the Warsaw District Office to be allowed to use the plot for construction purposes.

On 22 August 1996 the District Office considered that the 1980 Act did not a p p ly and therefore it transferred the case back to the Munici p al Office.

On 16 Se p tember, 23 Se p tember and 16 December 1996, 5 May and 3 June 1997 the a p p licant a p p lied to the Mayor of Warsaw asking for a speedy conclusion to her case. She further requested the Mayor to buy the p lot from her. During the whole period, the a p p licant ’ s p lot was used as a p ark.

On 21 April 1997 the applicant ’ s daughter notified the Warsaw Wawer Municipality that she wished to put up temporary fencing around her plot. On 1 July 1997 the a p p licant was informed that her application to alter the use of the plot had been rejected.

On 3 November 1997 the a p p licant asked the Munici p ality to grant a planning p ermission ( decyzja o warunkach zabudowy i zagos p odarowania terenu ). On 23 December 1997 the Mayor gave a decision authorising the a p p licant to construct a house and a sanitary tank on her p lot. The Mayor further held that it was necessary to obtain p ermission from the Minister of Environmental Protection in order to alter the use of the a p p licant ’ s p lot as specified in the local master plan that is, from a forestry zone to a residential and construction zone.

On 8 January 1998 the applicant applied to the Mayor of Warsaw requesting the commencement of the procedure for the alteration of the use of her plot in the local master plan.

On 19 January 1998 the a p p licant was informed that a certain group “ Friends of Radość Association ” ( Stowarzyszenie miłośników Radości ) (“the Association”) had appealed against the grant of planning permission o f 23 December 1997. On 27 January 1998 the Warsaw Self-Government Board of Appeal ( Samorządowe Kolegium Odwoławcze ) upheld the planning permission. On 14 March 1998 the Association lodged a complaint with the Supreme Administrative Court .

On 25 March 1998 the applicant filed a complaint under Article 37 § 1 of the Code of Administrative Proceedings with the Self-Government Board of Appeal alleging inactivity on the part of the Warsaw - Wawer Municipality as regards the proceedings to alter the use of her plot. On 20 April 1998 the Municipality explained that on 14 April 1998 the applicant ’ s case had been transferred to the Minister of Environmental Protection and therefore the Municipality was no longer competent to deal with the applicant ’ s case.

On 29 April 1998 the Board of Appeal transferred the applicant ’ s case to the Municipality. The Board further held that the applicant ’ s complaint could not be considered as a complaint under Article 37 of the Code of Administrative Procedure, since the Municipality was no longer competent to issue a decision in the applicant ’ s case.

On 29 June 1998 the a p p licant constructed a fence around her plot. The following day the fence was demolished by unknown persons. On 13 August 1998 the Warsaw Praga District Prosecutor discontinued the criminal proceedings, as it had been impossible to find the culprits.

Meanwhile, the Warsaw Wawer Mayor sent letters to the Ministry of Environmental Protection asking for examination of the owners ’ motions concerning construction on the forest plots in Radosc . This was to no avail as the Minister sent the motions back to the Municipality.

On 30 May 1999 the applicant sent a letter to the Mayor of Warsaw – Wawer Municipality asking for an explanation for the delay.

On 14 July 1999 the applicant lodged a complaint with the Supreme Administrative Court alleging inactivity on the part of the Warsaw – Wawer Mayor. She claimed that despite the final planning permission of 23 December 1997 and her application of 8 January 1998 the Municipality had failed to apply to the Governor to alter the use of her plot as specified in the local master plan. On 13 August 1999 the Supreme Administrative Court rejected the applicant ’ s complaint. The court held that the law in force did not oblige the Municipality to apply to the Governor, and therefore her complaint should be rejected.

On 30 July 1999 the Municipality Council adopted a resolution and held that the so-called park in Radosc should be designated as a district park in the future local master plan. The Municipality Board was ordered to institute proceedings in order to buy out the plots from their owners.

On 20 September 1999 an expert Z.J submitted an evaluation report on the value of the applicant ’ s plot and the plots of two other owners. Subsequently the Municipality began negotiating the price with the applicant and other owners of the plots of land in question.

On 19 April 2000 the Supreme Administrative Court dismissed the complaint of the Association against the decision of the local self-government board of 27 January 1998.

On 4 July 2000 the applicant was able to sell the plot in question for 534,600 zlotys [approx. 141,000 euros ]. The seller and the buyer declared in the notarial deed that the price represented the market price.

Meanwhile, on 5 November 1999 the applicant lodged a civil action with the Warsaw Regional Court against the Warsaw Wawer Municipality asking for payment for the use of the plot without a contractual basis. On 9 November 2000 she withdrew her action. Consequently, the proceedings were discontinued on 15 November 2000.

B. Relevant domestic law and practice

The provisions relating to the procedure for divesting the applicant ’ s plot of its protective forest status were included in the law of 26 March 1982 on protection of agricultural and forest grounds ( ustawa o ochronie gruntów rolnych i lesnych ). This law was repealed by the new law of 3 February 1995 which entered into force on 25 March 1995.

COMPLAINTS

1. The applicant complained under Article 1 of Protocol No 1 to the Convention that her right to peaceful enjoyment of her possessions had not been respected.

2. The applicant also claimed, relying on Article 6 that she had not had access to an effective judicial remedy in respect of her complaint about inactivity of the Warsaw Wawer Municipality (as regards the p roceedings concerning the divesting of forestry zone status).

THE LAW

I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION

The Court notes at the outset that the applicant died after the introduction of her application. Subsequently, her daughter, Mrs Anna Kozubek -Tor, informed the Court that she wished to pursue the application introduced by her mother.

The respondent Government submitted that the applicant ’ s daughter could not be considered a person entitled to pursue the proceedings before the Court on the applicant ’ s behalf and invited the Court to strike the application out of its list of cases. The Government referred to the fact that the applicant had sold the property in question in 2000, and that her daughter had never inherited it from her.

The Court reiterates that when an applicant dies during the proceedings, the next-of-kin of the applicant has a legitimate interest into justifying the continuation of the examination of the case (see, for example, Goc v. Poland (dec.), no. 48001/99, 23 October 2001).

The Court observes that in the present case the proceedings concerned the applicant ’ s pecuniary rights. It further accepts that the applicant ’ s daughter has a legitimate interest in pursuing the application on her mother ’ s behalf.

Accordingly, the applicant ’ s daughter has standing to continue the proceedings before the Court in the applicant ’ s stead, and the Government ’ s preliminary objection should be dismissed.

II. THE COMPLAINT UNDER ARTICLE 1 OF PROTOCOL NO 1 TO THE CONVENTION

The applicant complained that her right to peaceful enjoyment of her possessions had not been respected contrary to Article 1 of Protocol No. 1, which reads as follows:

“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. The parties ’ submissions

1. The Government ’ s submissions

The Government submitted that the alleged violation of the applicant ’ s property rights had originated in the law of 1982 and the local development plan of 1992. This part of the application was therefore, in their opinion, incompatible ratione temporis with the provisions of the Convention.

They further stressed that the applicant had already obtained satisfaction within the domestic system as regards her claims arising from the facts brought before the Court. Firstly, she had sold her land at the market price on 4 July 2000. Secondly, she had withdrawn her civil action for compensation and the proceedings had been discontinued on 15 November 2000. She had therefore voluntarily relinquished the right to seek compensation before the Polish courts.

The Government alleged that the applicant ’ s complaint was incompatible ratione materiae with the provisions of the Convention. They pointed out that Article 1 of Protocol No 1 did not guarantee a right to demand the public authorities to designate the land for a specific purpose.

They also submitted that the applicant had failed to exhaust the available domestic remedies. She should have lodged a claim before a civil court claiming return of the possession under Article 222 of the Civil Code or a claim for damages for interference under Articles 224 § 2 and § 225 of the Civil Code. Secondly, she should have lodged a claim under Article 224 § 2 and Article 225 against the Warsaw Wawer Municipality and demand payment for using her property as a park without a contractual basis. Lastly, they maintained that the applicant had failed to lodge an application for a building permit. Had her application been ineffective she could have lodged a constitutional complaint, challenging the relevant provisions.

As regards the merits of the applicant ’ s complaint, they firstly submitted that there had been no interference with the applicant ’ s right to the peaceful enjoyment of her possessions. Since 1982 the plot owned by the applicant had been covered by the legal regulations on protecting forests. However, the applicant had not been hindered by the authorities in the possession of her land. No restrictions had been imposed on the applicant ’ s use of her land according to its designation, namely as a forest plot.

The Government further argued that neither the provisions of Polish law nor Protocol No. 1 to the Convention obliged the Polish authorities to change the character of the use of land by individual owners. It had been within the discretion of both the Municipality Board and the Minister of Environmental Protection to agree to divest the applicant ’ s plot of its protected forest status. The applicant had never had a legal expectation of having the designation of her land changed and had never acquired any unconditional right to build on her plot (see, Allan Jacobsson v. Sweden , no. 18/1987/141/195, 25 October 1989, § 60; and Matti and Marianne Hiltunen against Finland (dec.), no. 30337/96, 28 September 1999).

They submitted that the measures complained of had pursued the legitimate aim of protection of the environment and the health and well ‑ being of the local population.

The Government were further of the opinion that the individual burden imposed on the applicant had not been excessive. She had not been prevented from either selling or renting out her property. She could have used it as a forest area. Furthermore, the applicant had in fact sold her land in July 2000. Although she had claimed that the price received had been low, she herself had declared in the notarial deed that the price obtained had actually represented the market price. In addition, the value of the applicant ’ s plot and the scope of its use had increased significantly as a result of the improvement of the technical infrastructure of the neighbourhood.

The Government concluded that, in the circumstances of the case, a fair balance had been struck between the applicant ’ s individual rights on one hand and the general interest of the local community on the other.

2. The applicant ’ s submissions.

The applicant disagreed with the Government. She stressed that her application referred to actions and decisions given after 1 October 1994. She maintained that she had had a right to develop her land on the basis of the local development plan.

In reply to the Government ’ s allegation that she had not exhausted the available domestic remedies, she claimed that the provisions of the civil code were not applicable in her case. In addition her case had been of an administrative nature, thus she could not have used civil means.

The applicant submitted that the local development plan of 1992 permitted development on her plot. However, the way the domestic authorities exercised their powers made it impossible for her to use the plot according to its designation in the local development plan. The applicant further argued that she could not have rented out the plot as it had represented part of the park. In addition, only a small group of inhabitants had asked for the establishment of a town park on the plot. Furthermore, the alleged park arrangement had not been supported by appropriate funds in the municipal budget.

The applicant stressed that she lived in a rented flat and that she could not have afforded to buy her own flat, in particular due to unlawful disposition of her property by the municipality. Lastly, she underlined that the authorities in the present case had failed to secure funds to buy the plot from her.

The applicant concluded that that she had had to bear an excessive burden and there had been a violation of Article 1 of Protocol No 1 to the Convention.

B. The Court ’ s assessment

The Court notes that it 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 . In the instant case t he Court observes that the applicant ’ s complaints are directed against measures and decisions taken after 10 October 1994.

The Court further notes that the essence of the applicant ’ s complaint relates to a set of restrictions on the exercise of her ownership including , the refusal of planning permission to allow her to develop the plot. It therefore rejects the Government ’ s objection on the grounds of incompatibility ratione materiae .

In so far as the Government claimed that the applicant had not exhausted the available domestic remedies and that she had already obtained satisfaction within the domestic system, the Court does not consider it necessary in the present case to rule on these objections since, even assuming that the applicant has exhausted domestic remedies and can still claim to be a victim of a violation of Article 1 of Protocol No 1 of the Convention in all respects, it considers that the application is in any event inadmissible for the reasons set out below.

The Court observes firstly that for several years the applicant ’ s plot had been used as a park and despite the local master plan and planning permission allowing for construction, the local authorities had failed to divest her p lot of its protect ed forest status. There was accordingly an interference with the peaceful enjoyment of the applicant ’ s possessions.

The Court further considers that the contested measures amounted in the circumstances to a control of the use of property. Accordingly, the second paragraph of Article 1 of Protocol No 1 applies in this case.

It remains to be determined whether the interference with the applicant ’ s property rights was in conformity with the State ’ s right under Article 1 § 2 of Protocol No. 1 “to enforce such laws as it deems necessary to control the use of property in accordance with the general interest”.

The interference complained of was in accordance with domestic law since it had a clear basis in the law on protection of agricultural and forest grounds. Moreover, the impugned prohibitions were aimed at preserving the existing forest areas in towns and were in the justified interest of the urban community.

It remains to be ascertained whether in respect of the interference with the applicant ’ s possessions there was a reasonable relationship of proportionality between the means employed and the aim to be realised.

The Court observes that according to the local master plans of 1982 and 1992 it was not possible to build on the plot in question until it had been divested of forestry zone status. The planning permission delivered on 23 December 1997 allowing the applicant to develop her property was not a final building permit and the granting of the final building permit depended on the outcome of the proceedings before the Minister of Environment. On the other hand the park where the applicant ’ s plot was located had been an amenity for the local population for many years. The inhabitants and local groups - Stowarzyszenie miłośników Radości - were protesting against the destruction of the park. The Court acknowledges that the task of the domestic authorities was difficult and that they had to find a solution that would respect the individual interest of the applicant and the inhabitants ’ interest in maintaining a valuable recreation area. However, in order to reconcile the conflicting interests the authorities decided to maintain the forest and buy out the plots.

The Court further observes that while the applicant was not limited in her right to use her property as a forest area she had never acquired an unconditional right to build on her land.

The Court lastly notes that the applicant sold the plot in question in July 2000 and that she had herself declared in the notarial deed that the price received had constituted a market price.

Having regard to all the circumstances of the case and the State ’ s wide margin of appreciation in this field (see, in particular, Tre Traktorer Aktiebolag v. Sweden , judgment of 7 July 1989, Series A no.159, p. 24, § 62), the Court therefore finds that a fair balance had been struck between the protection of the applicant ’ s possessions and the requirements of the general interest and that the applicant thus did not have to bear an individual or excessive burden.

It follows that this part of the application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention

III. THE COMPLAINT CONCERNING LACK OF AN EFFECTIVE REMEDY.

The applicant complained under Article 6 that she had not had access to an effective judicial remedy in respect of her complaint about the interference with her property right caused by the inactivity of the Warsaw Wawer Municipality throughout the p roceedings concerning the divesting of forestry zone status.

The Court considers that this complaint should be examined from the standpoint of Article 13 of the Convention . The Court further reiterates that, according to its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Kudła v. Poland [GC], no. 30210/96, § 15 7 , ECHR 2000-XI) . In view of its conclusions above, the Court considers that the applicant has no arguable claim of a violation of h er rights under Article 1 of Protocol No 1 in so far as it concerns the interference with her right to respect of property which would have required a remedy within the meaning of Article 13.

It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

T.L. Early Nicolas Bratza Registrar President