Communicated on 12 May 2017

FIRST SECTION

Application no. 11600/15 Marek PLUCIŃSKI against Poland lodged on 2 March 2015

STATEMENT OF FACTS

The applicant, Mr Marek Pluciński , is a Polish national, who was born in 1956 and lives in Lutomiersk .

He is represented before the Court by Mr A. Zielonacki , a lawyer practising in Poznań .

A. The circumstances of the case

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

The applicant owned a plot of land in the Lutomiersk municipality.

In 2002 the municipality gave a decision by which this land was divided into a number of smaller plots designated for subsequent sale to third parties. Three plots, referred to as plots nos. 176/32, 176 /45 and 176/46, were designated for future use for construction of roads, streets and walking paths ( drogi , ulice and ciÄ…gi piesze ). The decision expressly provided that ownership of the latter plots was, under this decision, ex lege transferred to the municipality.

On 24 January 2005 the applicant lodged with the municipality a request for compensation in respect of the plots referred to above. The applicant submitted that these plots had been divided by the decision of 24 June 2002 by the Mayor of the municipality and that these plots became property of the municipality on that day.

On 29 August 2005 the Mayor of Pabianice ( starosta ) granted the applicant compensation of PLN 55,295 [1] in respect of plots nos. 176/32, 176/45 and 176/46. The municipality of Lutomiersk appealed.

On 16 August 2006 the Governor of Łódź quashed this decision and remitted the case to the lower instance.

On 28 December 2006 the Mayor of the Pabianice District ( starosta ) granted the applicant compensation for the three plots referred to above in the amount of PLN 73,083 [2] . The municipality appealed.

On 10 December 2007 the Governor of Łódź quashed this decision and remitted the case to the lower instance.

On 3 April 2008 the Mayor of Pabianice district granted the applicant compensation in the amount of PLN 169,560 [3] . The municipality appealed.

On 15 October 2008 the Governor of Łódź upheld the decision awarding compensation to the applicant. It was noted that the 2002 decision had resulted, as expressly provided in its text, in a transfer of ownership to the municipality. Hence, as the applicant ’ s property had been expropriated, under the applicable provisions on expropriation and compensatin , compensation had to be awarded to the applicant in respect of these three plots.

On 28 May 2009 the Łódź Regional Administrative Court quashed the decision and the decision of the first-instance authority and remitted the case to the latter. It was of the view that the administrative authorities had failed to establish the circumstance crucial for the outcome of the case, namely whether the plots concerned were to be used for public road construction purposes. The municipality appealed.

On 13 July 2010 the Supreme Administrative Court dismissed the municipality ’ s cassation appeal.

On 9 November 2011 the Mayor of Pabianice refused to grant the compensation as the plots concerned had not been formally qualified as “public roads”.

On 17 February 2012 the Governor of Łódź quashed the decision and remitted the case to the first-instance authority. The Governor stated that de facto status of the plots, namely whether they were actually used as roads accessible to the general public and whether they were “public roads” in the practical sense of the term, should also be taken into consideration.

On 27 September 2012 the Łódź Regional Administrative Court quashed the Governor ’ s decision. The court held that the plots nos. 176/32, 176/45, 176/46, 176/47 and 176/48 had not had a formal status of public roads within the meaning of the Law on Public Roads. The applicant was still the owner of the land concerned and the plots were to be used as roads only de facto . The authorities had erred in law when giving the decision in 2002 and holding that ownership of the land had been thereby transferred to the applicant. Such a transfer would only have been possible in respect of plots used as roads formally qualified as public roads. There was therefore no call for awarding compensation to him as the law provided only for expropriation and compensation of land used for construction of roads formally qualified as public ones, regardless of their actual use.

The applicant appealed, referring to the Court ’ s judgment in the Bugajny v. Poland case ( Bugajny and Others v. Poland , no. 22531/05, 6 November 2007). He argued that the approach of the regional court was incompatible with the Court ’ s judgment in so far as the actual use to which the land concerned was to be put, namely as a public road, and the interference with the applicant ’ s right to the peaceful enjoyment of his property had been entirely disregarded.

On 10 July 2014 the Supreme Administrative Court dismissed the cassation appeal. It fully upheld the reasoning of the lower court. It was of the view that only the formal status of the road as a public road was of legal significance for the applicant ’ s compensation claim, not whether it actually was used as a road accessible to the general public. The court shared the view of the lower court that the decision of 24 June 2002 could not divest the applicant of his ownership in a legally relevant manner.

On 27 November 2014 the Governor of Łódź upheld the decision of the Pabianice Mayor of 9 November 2011 and refused to determine compensation to be paid to the applicant. The authority reiterated that the applicant remained owner of the plots, they could not be expropriated as they were not designated for construction of roads formally qualified as public and that there was therefore no call to award compensation to him.

B. Relevant domestic law and practice

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 93 § 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 (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 Bugajny 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 v. Poland , no. 22531/05, 6 November 2007 (see, e.g. the Lublin Regional Administrative Court, II S.A./Lu 326.08; 26 June 2008; the Warsaw Regional Administrative 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 applicant complains that the domestic authorities refused to expropriate his land and award him relevant compensation. They limited themselves to taking into consideration the formal legal status of the impugned plots, but disregarded the actual use to which that land was put. This amounted to a violation of his right to the peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1 to the Convention and was not compliant with the approach which the Court had adopted in its Bugajny and Others v. Poland judgment.

The applicant submits that he did not appeal against the last negative decision given by the administrative authorities, because in the light of the earlier stand of the administrative courts to the effect that his legal position was untenable lodging a further appeal to these courts concerning the same legal issues would have been obviously futile.

QUESTIONS TO THE PARTIES

1. Has a road been built on the plots of land concerned in the present case? If the answer to this question is in the negative, can the applicant claim to be a victim of a violation 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. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was he, in the circumstances of the case, obliged to lodge an appeal with the administrative court against the decision of the Governor of Łódź of 27 November 2014, regard being had to the fact that the administrative authorities were bound by the legal view expressed by the administrative courts in their earlier judgments, and to the fact that under these judgments the applicant was not entitled to obtain compensation?

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

[1] Approx . EUR 13,832.

[2] Approx . EUR 17,270

[3] Approx . EUR 42,390.