Published on 7 February 2022

FIRST SECTION

Applications nos. 59556/19 and 20240/20 Jerzy TUŻNIK against Poland and Mirosław SULIKOWSKI and Renata SULIKOWSKA against Poland lodged on 31 October 2019 and 7 May 2020 respectively communicated on 17 January 2022

STATEMENT OF FACTS

The applicant in the first case, Mr Jerzy Tużnik, is a Polish national who was born in 1957 and lives in Dąbrowa Górnicza. He is represented before the Court by Mr T. Kowolik, a lawyer practising in Katowice.

The applicants in the second case, Mr Mirosław Sulikowski and Ms Renata Sulikowska, are Polish nationals who were born in 1962 and 1961 respectively and live in Toruń.

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

(a) Background to the case

The applicant, along with his wife, was the owner of real estate located in Dąbrowa Górnicza. It comprised five plots of land and had a total area of over one hectare.

On 3 August 2001 the Mayor ( prezydent miasta ) of Dąbrowa Górnicza issued a decision, in which he established the conditions of construction ( warunki zabudowy ) for the applicant’s land. Pursuant to that decision, the land was to serve as a recreational area on which administrative buildings, sport venues and restaurants could be constructed.

On 31 May 2005 the Dąbrowa Górnicza City Council ( rada miasta ) enacted a local development plan ( miejscowy plan zagospodarowania przestrzennego ). Under its terms, the applicant’s land was to be used exclusively for the development of green spaces and cycle paths. The plan entered into force on 30 July 2005.

According to the applicant’s initial estimates, the change in local planning resulted in a decrease in the value of his property of 433,000 Polish zlotys (PLN) – approximately 108,000 euros (EUR).

(b) Enforcement proceedings

On an unspecified date enforcement proceedings ( postępowanie egzekucyjne ) against the applicant, related to an unspecified debt, were initiated. On 1 April 2016 the Dąbrowa Górnicza District Court accepted offers made at auction and awarded the ownership ( udzielenie przybicia ) of four of the applicant’s parcels to two individuals. They were sold for a total sum of PLN 54,000 (EUR 13,500).

(c) Proceedings for compensation

On 24 June 2013 the applicant requested the Dąbrowa Górnicza District Court ( Sąd Rejonowy ) to set a hearing for a friendly settlement of the dispute (zawezwanie do próby ugodowej ), claiming PLN 433,000 from the Dąbrowa Górnicza Commune ( gmina ). His claim was based on section 36 of the Local Planning and Development Act ( Ustawa o planowaniui zagospodarowaniu przestrzennym , “the Local Planning Act”).

On 7 April 2016, relying on an expert valuation prepared by A. in November 2015, the applicant reduced his claim to PLN 320,000 (EUR 80,000) and withdrew the remainder of his claim.

Having received a different expert valuation (prepared by B. in July 2016), on 28 February 2017 the applicant increased the amount of compensation sought to PLN 1.2 million (EUR 300,000).

On 4 April 2017 the Katowice Regional Court ( Sąd Okręgowy ) awarded him PLN 13,000 (EUR 3,250) and dismissed the remainder of his claim. It held, relying on a judgment of the Supreme Court ( Sąd Najwyższy ) (case no. II CSK 653/14, see below, B. Relevant domestic law and practice), that the applicant had lost standing to claim compensation in relation to the four parcels upon the transfer of their ownership in enforcement proceedings. With regard to the fifth parcel, the Regional Court held that the Commune had failed to prove that it belonged to the State Treasury.

Both parties appealed against that judgment.

On 20 February 2018 the Katowice Court of Appeal ( Sąd Apelacyjny ) amended the first-instance judgment and dismissed the applicant’s claim. It upheld that Regional Court’s arguments relating to the applicant’s standing but held that the remaining parcel comprised a watercourse: it thus belonged to the State Treasury.

On 27 February 2019 the Supreme Court refused to entertain his cassation appeal. The ruling was served on the applicant’s lawyer on 17 May 2019.

(a) Background to the case

In 1999 the applicants acquired perpetual usufructuary rights ( użytkowanie wieczyste ) to land located in Toruń. The real estate comprised eleven plots of land and had a total area of over four hectares.

Under the terms of the local development plan enacted on 19 October 2000, the applicant’s land was designated for purposes of general commercial retail services, non-nuisance light industry and warehousing. Part of the real estate was designated as a heritage protection zone.

The applicants wished to sell their perpetual usufructuary rights, for the purpose of construction of a shopping centre. To that effect, they concluded two preliminary sales contracts ( przedwstępna umowa sprzedaży ) dated November 1998 and September 2008 respectively. They received an advance payment of PLN 4,000,000 (EUR 1,000,000).

On 12 October 2006 the Toruń City Council amended the local development plan by extending the length of a street adjacent to the applicants’ real estate, effectively reducing its size.

On 9 July 2009 the Toruń City Council again amended the local development plan by introducing restrictions on the use of the applicants’ land, in particular by deciding that a road would be constructed on part of the land.

According to the applicants, due to the amendment they were prevented from proceeding with their plans and prospective buyers withdrew from sales contracts. They further indicated that Toruń’s 2009 budget projection anticipated the necessity of buying out the applicants’ real estate.

(b) Proceedings for compensation

Relying on section 36 of the Local Planning Act, on 20 February 2010 the applicants asked the Mayor of Toruń (the “Mayor”) to buy their property. They argued that changes to the local development plan prevented them from using the real estate as previously envisaged.

On 18 March 2010 the request was refused by the Mayor.

On 29 April 2010 the applicants lodged a civil claim against the Toruń Commune, asking the court to order a mandatory buyout of their perpetual usufructuary rights. The claim was dismissed on 6 November 2012 by the Toruń Regional Court. On 28 March 2013 the Gdańsk Court of Appeal quashed that judgment and remitted the case for re-examination.

On 17 June 2013 the applicants modified their claim, seeking an alternative award of compensation in the amount of PLN 39,000,000 (EUR 9,750,000). They explained that if the real estate were to be auctioned off by the bailiff (see under (c) Enforcement proceedings, below), its buyout by the commune would become pointless.

On 2 February 2016 the applicants again modified their claim to PLN 28,000,000 (EUR 7,000,000), and in any event no less than PLN 18,200,000 (EUR 4,550,000).

On 20 May 2016 the Toruń Regional Court partially granted their claim and awarded them PLN 17,000,000 (EUR 4,250,000). It relied on an expert valuation, according to which the value of the applicants’ perpetual usufructuary rights (prior to the change in local planning) equalled PLN 16,750,000. It also awarded them interest on that sum in the amount of PLN 10,750,000. The sum collected in enforcement proceedings (see under (c) Enforcement proceedings, below) was subtracted from the combined amount of compensation and interest.

Both parties appealed against that judgment.

On 2 January 2018 the Gdańsk Court of Appeal amended the Regional Court’s judgment and dismissed the applicants’ claim. They were also ordered to reimburse the Toruń Commune’s trial costs in the total amount of PLN 120,000 (EUR 30,000).

The court reasoned that the applicants had lost standing to claim compensation, since their property had been auctioned off. It held that section 36(1) of the Local Planning Act required that the plaintiffs maintain ownership of the property until the day of payment of compensation.

The court also referred to teleological interpretation ( wykładnia celowościowa ) of sec. 36(3) of that Act and explained that only vendors of property were eligible for compensation. In this regard, it referred to a judgment of the Supreme Court (case no. V CKN 1254/00, see below, B. Relevant domestic law and practice), in which that court held that enforced sale of real estate was not to be considered equal to a regular sale, as defined by the Civil Code ( kodeks cywilny ).

On 7 November 2019 the Supreme Court dismissed their cassation appeal.

(c) Enforcement proceedings

In 2010 a court bailiff ( komornik sądowy ) launched enforcement proceedings relating to the applicants’ debts.

On 15 June 2015 the applicants’ real estate was auctioned off in enforcement proceedings. The sale was approved by the Toruń District Court ( Sąd Rejonowy ) on 29 January 2016 and thus became final. The property was sold for PLN 10,437,000 (EUR 2,610,000) and the sum was divided between the applicants’ creditors and the bailiff, in order to cover the costs of enforcement proceedings.

Section 36 of the Local Planning Act reads, in so far as relevant, as follows:

“1. If, in connection with the enactment of a local development plan or its amendment, the use of the real estate, or a part thereof, in the previous manner or consistently with its previous purpose has become impossible or substantially restricted, the owner or the perpetual usufructuary of the property may, subject to subsection 2, demand from the commune:

1) compensation for the actual damage incurred, or

2) purchase the real property or a part thereof.

2. The claims referred to in section 1 may also be settled by the commune offering the owner or perpetual usufructuary a substitute property. The claims expire as of the date of conclusion of the exchange agreement.

3. If, in connection with the adoption of a local master plan or its amendment, the value of the real estate is reduced and the owner or perpetual usufructuary disposes ( zbywa ) of the real estate and has not exercised the rights referred to in subsections 1 and 2, he or she may demand compensation from the commune equal to the reduction in the value of the real estate.

...”

On 9 August 2000 the Supreme Court delivered a judgment (case no. V CKN 1254/00) in which it held that the enforced sale of land ( egzekucyjna sprzedaż nieruchomości ) was to be considered legally distinct from sale ( sprzedaż ), as defined in the Civil Code.

On 11 March 2011 the Supreme Court delivered a judgment (case no. II CSK 321/10) in which it held that the term “disposes” ( zbywa ), as used in section 36(3) of the Local Planning Act, cannot be construed as being applicable to all forms of transfer of ownership or perpetual usufructuary right, but only to paid ones.

In another judgment, delivered on 29 September 2015 (case no. II CSK 653/14), the Supreme Court held that in order to claim compensation for actual damage under section 36(1)1 of the Local Planning Act, the plaintiff’s ownership of the property must be preserved until the conclusion of proceedings before the second-instance court.

Similar reasoning was presented in that court’s judgment of 6 October 2016 (case no. IV CSK 778/15).

COMPLAINTS

The applicants complain under Article 1 of Protocol No. 1 to the Convention about being refused compensation solely because they had lost rights to their properties as a result of enforcement. They argue that there is no justification for differentiating between the situation of a voluntary sale of property and an enforced one.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 (see, mutatis mutandis , Skibińscy v. Poland , no. 52589/99, § 80, 14 November 2006)?

2. If so, was this interference in accordance with the conditions provided for by law and in accordance with the principles of international law, within the meaning of this provision? In particular, did the dismissal of their claims for compensation impose a disproportionate and excessive individual burden on the applicants (see, mutatis mutandis , Skibińscy , cited above , § 87)?