Communicated on 27 August 2018

FIRST SECTION

Application no. 67607/17 Paweł SZCZYPIŃSKI against Poland lodged on 6 September 2017

STATEMENT OF FACTS

The applicant, Mr Paweł Szczypiński , is a Polish national who was born in 1958 and lives in Borzęcin Duży .

A. The circumstances of the case

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

1. The background

On 9 February 1993 the applicant and his wife bought a plot of agricultural land in Borzęcim Duży . In 1993 the applicant made attempts to obtain a building permit but the proceedings were slow and unsuccessful. On his land the applicant runs a farm growing ornamental plants and vegetables, which necessitates his permanent presence.

In 1994 the applicant built a one-family house on the plot and moved into it with his wife and his disabled son. On 10 December 1996 the mayor of Stare Babice ( Wójt Gminy ) issued a demolition order for the applicant ’ s house. The decision indicated that the house measured six by six meters plus a garage. According to the local land-use plan it was built on land which had been designated for agricultural purposes, which excluded any possibility of housing construction. The decision ordered the demolition of the house by 31 December 1999 and stated that the applicants could apply to change the land use or to request leave to stay in the property owing to their farming activity.

The order became final as the applicant was advised against appealing. Afterwards, the authorities aimed at enforcing the demolition order and in 2002 and 2007 ordered the applicant to comply with the order.

2. Proceedings under Article 162 § 1 of the Code of Administrative Procedure

On 8 March 2013 the applicant requested that the decision of 10 December 1996 be annulled ( wniosek o stwierdzenie wygasniecia ) under Article 162 § 1 of the Code of Administrative Procedure. They submitted that on 30 June 2011 the local land-use plan had changed and their land had been re-designated for farming purposes ( siedlisko rolnicze ), which included family housing.

On 8 May 2014 the district building inspector ( Powiatowy Inspektor Nadzoru Budowlanego ) dismissed their request. It was established that the 1996 decision remained in effect and could not be annulled for the reasons invoked by the applicant.

The applicant appealed, maintaining that their house fulfilled the technical requirements and complied with the land use at that time. He pointed to the domestic court ’ s rulings in which analogous situations had been considered as grounds for annulling demolition orders that had not been enforced.

On 27 June 2014 the Mazowiecki regional building inspector upheld the previous decision. The applicant appealed.

On 28 January 2015 the Warsaw Regional Administrative Court dismissed the appeal. The court considered that there had been no grounds for annulling the decision as the construction of the house had been illegal at the material time. Subsequent developments in the land-use plan had not changed the situation.

The applicant lodged an appeal on points of law. He argued, inter alia , that the authorities had ignored what had been at the stake for him and his family, who could lose their only home and source of income. Their material situation was very difficult and would not allow them to demolish the building and build another house. Enforcement of the decision ordering demolition would cause the applicant and his family irreversible damage. The applicant also argued that the demolition of his house was not in the general interest either.

On 7 February 2017 the applicant ’ s appeal on points of law was dismissed by the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) on the same grounds. The court reiterated that the change of legal circumstances had no influence on the legality of the demolition order which had been given earlier. The court did not examine the fact that the house in question had been the applicant ’ s only home and other personal circumstances raised in the appeal on points of law.

3. Proceedings under Article 155 § 1 of the Code of Administrative Procedure

On 9 November 2012 the applicant instituted proceedings under Article 155 of the Code, which provided for a different type of annulment of a final administrative decision ( wniosek o uchylenie decyzji ).

The proceedings followed a similar pattern as above and ended with the Supreme Administrative Court ’ s judgment of 23 October 2015. The court found:

“It cannot be expected that the enforceable decision ordering demolition could after many years be annulled or amended by the authorities, only because it would be justified by ‘ a legitimate interest of the party [to the proceedings] ’ ”.

4. Further proceedings aiming at demolition

On 9 November 2012 the applicant requested that the relevant authority postpone the enforcement of the demolition order. He justified the request by his legitimate interest as a party to the proceedings and the changes to the local land-use plan. The applicant raised his personal and family circumstances, in particular his sick child, the impossibility of acquiring another residence, and the running of the farm.

Subsequently, the proceedings were stayed while the above-described two sets of administrative proceedings aiming at quashing of the decision under the Code were pending. On 2 October 2017 the proceedings were resumed.

On 7 December 2017 the district building inspector gave a decision refusing the applicant ’ s request to postpone the enforcement of the demolition order. The inspector considered that the legitimate interest of the applicant could not be grounds for postponing the demolition. The relevant provision of the Building Act provided that postponement may be granted for reasons related to the wishes of the public or to the economy ( względy społeczne lub gospodarcze ).

The applicant ’ s appealed. On 8 February 2018 the Mazowiecki regional building inspector upheld the impugned decision. It appears that the applicant appealed against this decision to an administrative court.

5. Imposition of a fine

On 23 October 2007 the district building inspector ordered the applicant to pay a fine in the amount of 8,000 Polish zlotys (PLN).

On 22 May 2012 the district building inspector ordered the applicant to pay another fine of almost PLN 40,000 for failure to enforce the demolition order.

On 9 May 2017 the Supreme Administrative Court finally upheld the decision concerning the fine.

6. Most recent proceedings for annulment

On 12 May 2016 the applicant instituted another set of proceedings, under Article 161 § 1 of the Code, seeking annulment of the decision of 10 December 1996.

On 24 April 2018 the Regional Administrative Court finally dismissed his request and refused to annul the impugned decision.

B. Relevant domestic law and practice

Article 155 of the Code of Administrative Procedure (“the Code”) permits the amendment or revocation of any final administrative decision whenever necessary in the general or individual interest, if this is not prohibited by specific legal provisions.

Article 161 § 1 of the Code provides for expiration of a final domestic decision. It reads as follows:

“The public administration body which issued the decision at the first instance shall confirm that it has expired if such a decision:

1) has become without purpose, and confirmation of the expiry of the decision is required by law or would be in the public interest or in the interests of the parties;

2) was issued subject to one of the parties fulfilling a certain condition and the party in question has not met that condition.”

COMPLAINT

The applicant complains under Article 8 of the Convention that enforcement of the demolition order would amount to a breach of his right to respect for his home and family life.

The domestic authorities ordered the demolition of his only house, home to his family, including his disabled child, who is also suffering from cancer. The family lives on their farm and is helped by social services in order to meet high medical costs. Despite the applicant ’ s involvement in multiple domestic proceedings, the authorities have never reviewed the proportionality of the demolition order. They have not examined the case in the light of his personal circumstances and the fact that since 2011 construction of a house on his land has been legal.

QUESTIONS TO THE PARTIES

1. Is the impending demolition of the house, which the applicant and his family have lived in since 1994, necessary in terms of Article 8 § 2 of the Convention? In particular, was the applicant able to have the proportionality of the measure reviewed by an independent tribunal in the light of the relevant principles under Article 8 of the Convention (see Ivanova and Cherkezov v. Bulgaria , no. 46577/15 , § 61, 21 April 2016 )?

2. Is the impending demolition of the house compatible with Article 1 of Protocol No. 1 to the Convention?