Communicated on 12 May 2017

FIRST SECTION

Application no. 45614/15 Waldemar KAMIŃSKI against Poland lodged on 9 September 2015

Application no. 45615/15 Jarosław KAMIŃSKI against Poland lodged on 9 September 2015

STATEMENT OF FACTS

The applicants, Mr Waldemar Kamiński (application no. 45614/15) and Mr Jaros ł aw Kamiński (application no. 45615/15) are Polish nationals, born in 1969 and 1976 and living in Charzykowy and Chojnice , respectively.

They are represented before the Court by Mr A. Zielonacki , a lawyer practising in Pozna Å„ .

A. The circumstances of the case

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

The applicants co-owned a plot of l and in Charzykowy listed as No. 875/6.

By a decision of 1 June 2009 this land was divided into smaller plots designated for subsequent sale for construction purposes. One of the plots, no. 875/31, was to be used for the purposes of construction of an internal road ( droga dojazdowa droga wewnętrzna ).

On 30 May 2011, following several unsuccessful attempts to obtain compensation, the applicants lodged an administrative application for compensation in respect of the plot no. 875/31. They argued that that land had been de facto expropriated because it was used as a public road, accessible to all, despite its designation in the above decision as an internal road. Hence, compensation should be paid for it under the provisions of the the 1997 Land Administration Act.

On 2 August 2011 the Mayor of Chojnice refused to grant the compensation to the applicants, having noted that there had been no expropriation in respect of that plot, because it had not been used as a public road. Hence, there was no call to award compensation to the applicants.

The applicants appealed, referring to the Court ’ s judgment in the case of Bugajny and Others v. Poland , no. 22531/05, 6 November 2007, where the Court had found a breach of Article 1 of Protocol No. 1. They stressed that the authorities had disregarded to what kind of use the road to be built was to be put.

On 25 November 2011 the Governor of Pomorze quashed the Mayor ’ s decision and remitted the case. He noted that the road to be built in the future would provide access to many individual smaller plots of land situated on the same estate. It was likely that a substantial number of people would use that road. The first-instance authority had failed to take this factor into consideration. It also failed to take into account the Court ’ s judgment in the case of Bugajny v. Poland where the Court had stressed that the qualification of a road as public should be made with reference to its actual use, including whether it was accessible to the general public, not merely to its formal legal status. It was further noted that this judgment had had the effect of reversing the formal interpretation of the provisions of Article 98 of the Land Administration Act by the administrative courts in that they became more willing to have regard to the actual condition on the roads, not merely to their legal qualification.

On 20 March 2012 the Mayor of Chojnice refused to grant compensation to the applicants. The authority noted that compensation could only be paid following a final decision on expropriation. However, the conditions for expropriation of land set out by section 98 (1) of the Land Administration Act 1997 had not been met. Land could be expropriated if it was to be used for the purposes of construction of public roads within the meaning of the Roads Act and if roads had been included into the local land development plan. Only the second condition obtained in the case.

The authority was further of the opinion that the Court ’ s approach in the case of Bugajny and Others v. Poland , no. 22531/05, 6 November 2007 could not be applied in the case, because this judgment concerned legal situation obtaining prior to 15 February 2000 when the law did not make a distinction between a public and non-public road. Following legislative changes adopted in 2000, expropriation became possible only in respect of roads defined as public (see Relevant domestic law). In the applicants ’ case, under the local land development plan adopted by the municipality the roads to be built on the land concerned had not been public roads within the meaning of the Public Roads Act. Hence, no decision to expropriate the relevant land could be given and no expropriation awarded.

The applicants appealed, reiterating their earlier arguments and referring to Article 1 of Protocol No. 1 and to the Court ’ s judgment in the Bugajny and Others v. Poland case.

On 29 August 2012 the Governor of Pomorze upheld the Mayor ’ s decision, fully sharing the approach of the first-instance authority.

The applicants appealed, reiterating their earlier arguments. It was noted that the breadth of the plot concerned was 12 metres and that it was to serve as access road to an estate of smaller plots to be sold to numerous third parties, the estate covering 33 hectares.

On 5 February 2013 the Gdansk Regional Administrative Court dismissed the applicants ’ appeal. The court held that in the decision on the division of land into smaller plots, given in 2009, the applicants ’ plot had been labelled as designed for use as an internal road. Consequently, the conditions for expropriation of that plot had not been met. It was of the view that section 98 (1) of the Land Administration Act was not aimed at making the municipalities expropriate and pay compensation in respect of all land used for the purposes of communication within the municipality. There was no basis on which to accept that the municipalities should use public funds for the purposes of compensating owners of plots not used for public purposes. The court further noted that if an owner of land used for construction of a road used de facto for public purposes was of the view that he or she should be expropriated against compensation, it was open to challenge the resolution of the local municipality on qualification of roads as public, by way of challenging its validity, under section 100 (1) of the Local Administration Act ( ustawa o samorządzie gminnym ). It was further noted that, notwithstanding the Court ’ s judgment in the Bugajny and Others case, the substantive administrative law did not provide a basis for compensation where the public use of road had merely de facto character. This judgment had to be seen as an impulse for the legislator to create a legislative framework for situations similar to that of the applicants ’ , but in the absence of such framework no compensation could be paid. The actions complained about were therefore lawful. The court was of the view that it was not excluded that persons in the applicant ’ s situation could claim compensation before civil courts on the basis of provisions of the Civil Code for the liability of the public authority in tort for unlawful actions.

The court noted that no road had been constructed yet on the plot of land concerned. It was further noted that the applicants were creating on the land concerned servitudes of passage. The court found that the applicant had been establishing, by way of civil proceedings, an easement of passage on this plot in order to allow owners of the neighbouring properties to accede to their land.

By a judgment of 23 January 2015, served on the applicants ’ lawyer on 9 March 2015, the Supreme Administrative Court dismissed the applicant ’ s cassation appeal, fully sharing the conclusions of the lower court. The court held that the intended use of property had been established in a division decision of 1 June 2009. The court stated that the applicants remained owner of the plot so their land had not been expropriated. There was no call to award compensation to him.

B. Relevant domestic law

1 . Relevant provisions of the land expropriation legislation

On 1 January 1998 the Land Administration Act of 21 August 1997 ( Ustawa o gospodarce nieruchomościami – “the 1997 Land Administration Act”) entered into force. Pursuant to section 112 of that Act, expropriation consists in taking away, by way of an administrative decision, of ownership or of other rights in rem . Expropriation can be carried out where public interest aims cannot be achieved without restriction of these rights and where it is impossible to acquire these rights by way of a civil law contract.

Under section 113 an expropriation can only be carried out for the benefit of the State Treasury or of the local municipality.

In accordance with section 128 § 1 of the Act, expropriation can be carried out against payment of compensation corresponding to the value of the property right concerned. Under section 130 § 1 of the Act, the amount of compensation shall be fixed, regard being had to the status and value of the property on the day on which the expropriation decision was given. The value of property shall be estimated on the basis of an opinion prepared by a certified expert.

Section 131 provides that a replacement property can be awarded to the expropriated owner, if he or she so agrees.

Pursuant to section 132, compensation shall be paid within fourteen days from the date on which the expropriation decision becomes subject to enforcement.

2 . Changes in the relevant provisions of the Land Administration Act 1997

The question of expropriation of land for the purposes of road construction is regulated in that Act. Section 98 § 1 of the Act provides that the division of an estate into smaller plots is possible only when the division proposed by the owner is compatible with the local land development plan. Under § 3 of this section, a decision on the division can not be given if the plots resulting from the division would have no access to a public road. Access to a public road is also deemed to be available if a plot has access to an internal road.

Until 15 February 2000 section 98 of the Act read as follows:

“ 1. Plots of land designated for the construction of roads in an administrative decision on the division of property shall be expropriated ex lege on the date on which such a division decision becomes final. (...)

3. The compensation due for such plots shall be established by way of negotiation between the expropriated owner and the relevant public authority; if negotiations fail, compensation shall be determined according to the principles applicable in respect of land expropriation. ”

On 15 February 2000 amendments to this Act came in force. Following these amendments, the text of subsection of Section 98 (1) read as follows:

“1. Plots of land designated in a decision on the division of property for the construction of public roads, such as municipal, county, regional and national roads shall be expropriated ex lege on the date on which such a divisio n decision becomes final. (...) “

3. Case-law of the administrative courts following the Court ’ s judgment in the case of Bu gajny and Others v. Poland, no. 22531/05, 6 November 2007

In a number of judgments the regional administrative courts allowed appeals against second-instance administrative decisions by which the municipal authorities refused to expropriate and fix the amount of compensation or to reclassify the land used for road construction purposes, relying on the Court ’ s judgment in the case of Bugajny and Others (see, e.g. the Lublin Regional Administrative Court, II S.A./Lu 326.08; 26 June 2008; the Warsaw Regional Administrat ive Court, I S.A./ Wa 673/10, 22 June 2010; I S.A./ Wa 332/10, 16 November 2011; the Poznań Regional Administrative Court, II SA/Po 893/09, 27 October 20120; the Bydgoszcz Regional Administrative Court, II SA/ Bd 457/08, 15 July 2008; the Supreme Administrative Court, I OSK 403/11. 9 February 2012; I OSK 1360/08, 23 September 2009).

COMPLAINT

The applicants complain under Article 1 of Protocol No. 1 to the Convention that their right to the peaceful enjoyment of their possessions was breached by the refusal to expropriate the property and pay compensation. The authorities disregarded the fact that this land was to be used de facto as a public road and ensuring access to their properties for numerous persons. Therefore, the roads on the estate constituted part of the public road network. The artificial description of the road concerned as “internal”, despite its public use, served the purpose of evading the obligation on the part of the municipality to expropriate the land and to pay compensation to the applicants. It was the municipality itself which decided which roads to be qualified as public. It was therefore possible for it to evade the obligation to pay compensation by qualifying roads as internal, despite them being put to public use.

QUESTIONS TO THE PARTIES

1. Has a road been built on the plot of land concerned in the present case, no. 875/31? If the answer to these questions is in the negative, can the applicants claim to be victims of a violati on of Article 1 of Protocol No. 1 to the Convention?

If the answer to this question is in the positive, who built that road, when, and who bore the financial burden of the construction?

2. If a road has been built, is it accessible and used by the general public?

3 . Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

4 . Has there been an interference with the applicants ’ peaceful enjoyment of their possessions, within the meaning of Article 1 of Protocol No. 1? In particular, did that interference impose an excessive individual burden on the applicants (see Bugajny and Others v. Poland , no. 22531/05, §§ 67-74, 6 November 2007)?