FOURTH SECTION

Application no. 8766/11 Jan RYBCZYŃSKI and Urszula RYBCZY Ń SKA against Poland lodged on 26 January 2011

STATEMENT OF FACTS

The applicants, Mr Jan Rybczyński a nd Ms Urszula Rybczyńska , are a married couple of Polish nationals, who were born in 1944 and 1947 respectively and live in Sobótka . They are represented before the Court by Mr Cz . Bakun , a lawyer practising in Bielany Wrocławskie .

A. The circumstances of the case

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

On 2 December 2004 the Sobótka municipality gave a decision by which the division of land owned by the applicants into smaller plots, with a view to their being sold to third parties, was approved. Certain plots were designated for construction purposes and other plots were to be used as roads marked at the division plan as KD.

In June 2008 the applicants requested the municipality to take over the ownership of the “KD” plots by the local municipality. They submitted that they had never been informed that plots marked as KD were to remain their property and that publicly accessible roads were to be constructed on them. They referred to the Court ’ s judgment in the case of Bugajny and Others v. Poland , no. 22531/05, 6 November 2007 and argued that they as former owners of the plots which they had sold to third parties should not have been obliged to pay the maintenance costs in respect of these roads. They did not use them and could not obtain any financial compensation from the current owners or other third parties in respect of the maintenance costs they had to bear. They requested that the local land development plan be amended in such a way as to have these roads reclassified as municipal roads owned by the municipality.

An exchange of letters between the municipality and the applicants ensued. Ultimately, by a letter of 14 January 2010, the municipality refused to allow their request on the ground that the roads concerned were not to be regarded as public roads within the meaning of the Land Administration Act, the municipality was not obliged by law either to reclassify them as municipal roads or take upon itself their ownership.

The applicants challenged this letter before the administrative court by lodging a complaint about the municipality ’ s failure to act. They complained about the authorities ’ failure to give a decision which would deal with the substance of their case. They relied, inter alia , on the Court ’ s judgment in the case of Bugajny and Others v. Poland , no. 22531/05, 6 November 2007 and argued that they were made to bear an excessive individual burden.

By a decision of 27 May 2010 the Regional Administrative Court in Wrocław rejected their appeal. It was of the view that no provision of domestic law obliged the local municipalities either to adopt local land development plans or to amend the existing ones, including by reclassifying the roads. Hence, the complaint about the authorities ’ failure to act had to be rejected.

The applicants lodged a cassation appeal against this judgment with the Supreme Administrative Court , essentially reiterating the substantive law arguments which they had already developed in their appeal against the administrative decisions.

By a judgment of 1 September 2010 the Supreme Administrative Court dismissed their appeal, sharing the views of the first ‑ instance court.

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. lots 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 division 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 Re gional 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 the decisions and judgments given in their case were in breach of this provision. The municipality ’ s refusal to take over the ownership of the plots of land designated for road construction purposes imposed on them an excessive individual burden. They referred to the Court ’ s judgment in the case of Bugajny and Others v. Poland , no. 22531/05, 6 November 2007).

QUESTIONS TO THE PARTIES

1. Have the applicant s exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the remedy used by the applicants an effective r emedy within the meaning of this provision?

2. Has there been an interference with the applicant s ’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, did that interference comply with the requirements of this provision?

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 ).