Resolution CM/ ResDH ( 2013)209 Six cases against Poland

Execution of the judgments of the European Court of Human Rights

Case

Application No.

Judgment of

Final on

SKIBIŃSCY

52589/99

14/11/2006

21/10/2008

06/04/2009

BUCZKIEWICZ

10446/03

26/02/2008

26/05/2008

ROSIŃSKI

17373/02

17/07/2007

17/10/2007

TARNAWCZYK

27480/02

07/12/2010

07/03/2011

PIETRZAK

38185/02

08/01/2008

07/07/2008

SKRZYŃSKI

38672/02

06/09/2007

06/12/2007

(Adopted by the Committee of Ministers on 16 October 2013 at the 1181st meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in the above cases and to the violations established;

Recalling the respondent State ’ s obligation , under Article 46, paragraph 1, of the Convention , to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)888 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

A ction report [1]

Information about the measures to comply with the judgments in the

Skibińscy against Poland group of cases

Case description

Skibińscy , A pplication N o. 52589/99 , judgment of 14/11/2006, final on 26/03/2007

Buczkiewicz , A pplication N o. 10446/03, judgment of 26/02/2008, final on 26/05/2008

Rosiński , A pplication N o. 17373/02, judgment of 17/07/2007, final on 17/10/2007

Tarnawczyk , A pplication N o. 27480/02, judgment of 07/12/2010, final on 07/03/2011

Pietrzak , A pplication N o. 38185/02, judgment of 08/01/2008, final on 07/07/2008

Skrzyński , A pplication N o. 38672/02, judgment of 06/09/2007, final on 06/12/2007

The cases concern an i nterference with the applicants ’ right to the peaceful enjoyment of their possessions (violation of Article 1 of Protocol No . 1) in relation to the local development plans adopted by particular municipalities before 1 January 1995. These plans designated some of the applicants ’ land for public use and thus could constitute grounds for future expropriation. Because the expropriation was to be carried out at a future, undetermined date and, according to the legislation in force at the material time, the applicants were not entitled to compensation for a protracted period of uncertainty and could not obtain land to replace the plot “designated for expropriation”. Moreover, they were unable to oblige the municipality to acquire their property what limited their possibility to pursue their own projects on the plots concerned.

The European Court noted that before the enactment of the Local Planning Act on 7 July 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 Article 36 of this Act that local authorities became obliged either to buy plots designated for future expropriation under local land development plans, 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 – after 1 January 1995.

The European Court concluded that a fair balance was not struck between the competing general and individual interests and that the applicants had been required to bear an excessive individual burden.

The Tarnawczyk c ase concerns also the applicant ’ s complaint as to the failure of her efforts to obtain compensation for certain other categories of damage related to the decision to expropriate her. Her claim in tort against the State Treasury, brought in 1999, was allowed in full by the court of first instance, but ultimately dismissed by the appellate court. Even though the existence of the damage was not contested by the Court of Appeal, the applicant ’ s claim failed because, in the view of that court, the applicant had erred by identifying the wrong defendant.

The European Court, not denying the complexity of the problems with which the courts had been faced as a result of the fundamental changes in the competencies of all the various authorities at the local and State administration level, considered that shifting the duty of identifying the competent authority to be sued to the applicant and depriving her of compensation on this basis was a disproportionate requirement and had failed to strike a fair balance between the publi c interest and the applicant ’ s rights.

The European Court awarded the applicants with just satisfaction in respect of non-pecuniary damage and in some cases also in respect of pecuniary damage as well as reimbursement of costs and expenses.

Skibińscy v. Poland, Case No. 52589/99

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

15,000

Paid on 29/06/2009

5,000

Paid on 29/06/2009

1,647 EUR

Paid on 29/05/2007

21,647 EUR

Buczkiewicz v. Poland , Case No. 10446/03

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5,000 EUR

-

5,000 EUR

Paid on 04/07/2008

Rosiński v. Poland, Case No. 17373/02

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5,000 EUR

-

5,000 EUR

Paid on 20/11/2007

Tarnawczyk v. Poland, Case No. 27480/02

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

5,870 EUR

1,000 EUR

-

6,870 EUR

Paid on 25/05/2011

Pietrzak v. Poland, Case No. 38185/02

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5,000 EUR

-

5,000 EUR

Paid on 03/09/2008

Skrzyński v. Poland, Case No. 38672/02

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5,000 EUR

-

5,000 EUR

Paid on 22/01/2008

All local development plans adopted before 1 January 1995 (hereinafter “old plans”) which bore impact on t he applicants ’ rights, were repealed as of 1 January 2004 (see general measures).

In these circumstances, no other individual measure appears necessary.

On 1 January 1995, the Local Planning Act of 7 July 1994 entered into force (hereinafter the 1994 Act). Article 36 of the1994 Act provided that if, in relation with the adoption of a local development plan (hereinafter “local plan”) or its amendment, the use of real estate or its part in the previous manner or in accordance with its previous purpose, has become impossible or significantly limited, the owner or the perpetual user of the real estate may demand from the municipality that it either compensates the actual damage sustained or buys out the real estate or its part. Such claims may be compensated by way of restitution through an offer of an alternative real estate to the owner or the perpetual user. In such instances, the claims expire on the date of the conclusion of a contract of exchange. Moreover, if the value of a real estate has decreased in connection with the adoption of a local plan or its amendment, and the owner or perpetual user transfers this real estate and has not availed himself of the abovementioned rights, he may demand compensation from the municipality, equal to the decrease in the value of the real estate. Detailed rules concerning the calculation of the compensation by the municipality as well as the deadlines for the implementation of the obligations resulting from the reported claims are included in Article 36 of the 1994 Act.

To recapitulate, one can conclude that amendments introduced in the 1994 Act sufficiently protect the property rights guaranteed in the Constitution. On a side note, it should be noted that local plans as such do not concern and cannot determine issues pertaining to expropriation. Scope of the local plans is regulated by the laws in force. Based on these laws , local plans can determine the designation of the land for particular use as well as construction methods and conditions applicable on the land in question.

Analogous regulations pertaining to claims lodged by owners and perpetual users of a real estate are contained in Article 36 of the Local Planning and Development A ct of 27 Mar ch 2003, in force as of 11 July 2003 (hereinafter “the 2003 Act”). At the same time, rules concerning the calculation and terms of payment of compensation are contained in A rticle 37 of the 2003 Act.

Pursuant to the rules on development planning currently in force, planning decisions must be taken in respect of the principle of proportionality – they need to balance the public and the individual interests. In order to achieve this, the planning procedure includes participation of all interested stakeholders, what includes participation in public discussion on the solutions adopted in local plans.

At the same time, pursuant to A rticle 87 § 3 of the 2003 Act , all local dev elopment plans adapted before 1 January 1995 (the so-called “old development plans”) that were still in force were repealed with effect from 1 January 2004. It should be noted that some of the “old plans” expired already on 1 January 2003 on the basis of A rticle 67 § 1 of the 1994 Act. Such an annulment applied to the old plans adopted in the communities which had failed to take up studies on the conditions and directions of the local development before the expiry of the time-limit of 8 years running from the date of the entry into force of the 1994 Act.

The annulment of a local development plan means that its provisions are no longer in force , thus cannot form a basis for any limitations on the owners in developing the land previously covered by the plans. The possibility to determine the use of land and construction conditions on the land where no local development is currently in force is prescrib ed in A rticle 4 (2) of the 2003 Act. The latter provision pertains in particular to instances when the old development plans ceased to operate whereas no new plan has been adopted.

To sum up, it should be noted that none of the old plans are in force and thereby they cannot form a basis for any limitations on the rights of the owners. In case a new local plan is adopted, which imposes limitations on the use of real estate in the previous manner or in accordance with its previous purpose, all owners affected by its provisions are entitled on equal footing and without any exceptions to obtain redress through compensation or restitution envisaged in Article 36 of the 2003 Act. Thus, the problem of the lack of compensation for owners whose properties had been allocated for the future public investments has been solved. All interim regulations in the field of local planning that were in force in the period of the Polish systemic transformation have already been repealed. Regulations currently binding ensure full respect for the property rights of individual owners affected by the provisions of local plans, including the right to appropriate compensation in instances when the local plan adopted prevents or seriously limits the use of real estate in the previous manner or in accordance with its previous purpose.

In these circumstances, no other general measure appears necessary .

III. Conclusions of the responding S tate

The g overnment considers that further individual measures are not necessary in the present case and that the general measures adopted will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Information submitted by the Polish authorities on  20 August 2013.