Communicated on 23 January 2018

FIRST SECTION

Application no. 30822/12 Eugeniusz DAWIDOWSKI against Poland lodged on 28 April 2012

STATEMENT OF FACTS

The applicant, Mr Eugeniusz Dawidowski , is a Polish national who was born in 1950 and lives in GÅ‚ubczyn .

The circumstances of the case

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

The applicant co-owns with his wife a plot of land measuring 0.43 hectares in Głubczyn . The plot is registered in the local land and mortgage register kept by the Złotowo District Court under no. 12845. On an unspecified date no later than 1994 an overhead power line with six electrical poles and a substation (hereinafter “the electrical grid”) was placed on the land.

There is a house, a bar, a shop and a car park on the plot of land in question. The applicant and his wife wanted also to set up a camping site there, but owing to the presence of the electrical grid they would not have had enough clients and decided not to pursue that activity.

On 6 November 2009 the applicant and his wife lodged a civil action against the electricity utility company, ENEA, which owned the electrical grid. They sought compensation of 208,946.40 Polish zlotys (PLN) (approximately 52,200 euros (EUR)) for non-contractual use of their land between 2000 and 2009 with the exception of 2006, for which the applicant and his wife had received compensation in proceedings concluded by a judgment of the Poznań Regional Court ( Sąd Okręgowy ) issued on 5 June 2009 (case no. II Ca 432/09).

The compensation the applicant and his wife demanded was calculated on the basis of the surface area of the plot of land precluded from normal use owing to the presence of the electrical grid, multiplied by the minimal rates of rent for lease ( dzierżawa ) of the municipal land designated for commercial and manufacturing purposes adopted by Krajenka City Council ( Rada Miasta ) for the relevant years. In order to prove the accuracy of the calculation, the claimants presented a private expert report concerning the surface area of the land precluded from normal use owing to the presence of the electrical grid. In their action, they also requested that if that measurement was questioned by the respondent, the domestic court order a court-appointed expert ’ s report with a view to indicating what structures had been installed on their land and establishing the surface area of the land they covered and the surface area that was thus precluded from normal use, including the protection zone provided for by domestic law.

On 30 June 2010 the Poznań Regional Court (case no. XIV C 1184/09) granted the claimants ’ action in its entirety. The first-instance court held that ENEA had not substantiated that it had any legal entitlement to use the claimants ’ land. Its factual use of the land in question was equivalent to the transmission easement ( służebność przesyłu ) and was exercised in bad faith. In consequence, the respondent was obliged to pay compensation for the use of the land. The court stated that the surface area of the land precluded from normal use amounted to 962 square metres, as indicated in the expert report submitted by the applicant and his wife. The court held that the respondent had not provided any evidence that would have undermined the accuracy of that report. It also established that compensation based on the rental rates adopted by Krajenka City Council was adequate. In consequence, it granted compensation based on the calculation submitted by the claimants.

The respondent appealed.

On 22 February 2011 the Poznań Court of Appeal modified the first-instance judgment and dismissed the action. It also ordered the claimants to pay PLN 10,448 (approximately EUR 2,610) in court costs.

The second-instance court held that the applicant and his wife had not sufficiently proved their claim. It stated that as the respondent had questioned both the surface area of the claimants ’ land precluded from normal use and the relevancy of the minimal rental rates adopted by the City Council, it was up to the claimants to offer evidence for both elements of the calculation. The Poznań Court of Appeal stated that an expert report presented by a party to the proceedings and not ordered by the court could not serve as evidence in civil proceedings. In consequence, the opinion presented by the applicant and his wife could not be used to substantiate their claim as to the surface area of their land precluded from normal use. The court noted that the claimants had requested the court to appoint an expert to draw up a report and acknowledged that such a report could be ordered by the second-instance court. However, it also held that such a report would indicate only the surface area of the claimants ’ land to be taken into consideration when calculating compensation for non-contractual use of the land. It would not serve as relevant evidence for the second element necessary for the calculation of compensation, namely the rate of compensation per square metre.

The Poznań Court of Appeal stated that the first-instance court had erroneously accepted the claimants ’ calculation based on the rental rates of land designated for commercial and manufacturing purposes adopted by Krajenka City Council, whereas the applicant and his wife had claimed that they had wanted to use the land for a camping site, which constituted a use of land for recreational or farm tourism. Therefore, in the second-instance court ’ s opinion, the rates adopted for commercial and manufacturing purposes could not have constituted a relevant basis for the calculation of the claim. The second-instance court stated that the claimants had not presented any other evidence for the calculation of the rate of compensation and had, therefore, failed to sufficiently prove their claim.

On 9 February 2012 the Supreme Court (case no. II CSK 430/11) refused to examine a cassation appeal lodged by the applicant and his wife.

COMPLAINTS

The applicant complains under Article 6 of the Convention that the second-instance court acted with excessive formalism and burdened him with the consequences of the procedural mistakes made by the first-instance court.

He also invokes Article 1 of Protocol no. 1 to the Convention, complaining that the presence of the electric grid is preventing him from making use of his land as he intended and is causing him additional nuisance for which he has not been accordingly compensated.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the approach of the second-instance court to the burden of proof arbitrary or excessively formalistic? Did it constitute a denial of justice?

2. Has the applicant been deprived of his possessions in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?

3. If so, was that deprivation necessary to control the use of property in accordance with the general interest and was it not arbitrary?