WOŹNIAK AND OTHERS v. POLAND
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
1. The applicants in the first case, Ms Maria Woźniak and Mr Eugeniusz Woźniak, are Polish nationals, who were born in 1932 and 1925 respectively and live in Rybno. 2. The applicants in the second case, Mr Stanislaw Chruśliński and Ms Janina Powodzińska, are Polish nationals, who were born in 1949 and 1952 respectively and live in Łódź. 3. In the past decades road construction projects were often carried out in Poland on privately owned plots of land which were de facto taken over for that purpose by the authorities despite de fact that the ownership of those plots had not been validly transferred to the State or other public bodies. 4. In 1998 the legislator adopted a statute specifically addressing the situation of persons whose lands had in the past been taken over for road construction purposes; in particular with a view to bringing their legal status into line with the realities of the present day and to ensure payment of compensation to former owners or their legal successors (see Relevant domestic law, paragraphs 20-23 below). 5. The facts of the cases, as submitted by the applicants, may be summarised as follows. 6. On an unspecified point in time part of the applicants’ land was taken over by the State and a road was built on it. 7. By virtue of the Sochaczew City Council resolution dated 25 March 1997 the road which crossed through the applicants’ property was classified as a local town road (droga lokalna miejska). 8. On an unspecified date the Mazowiecki Governor (Wojewoda Mazowiecki), acting ex officio, instituted proceedings concerning the land taken over from the applicants. On 2 July 2009 the Governor (Wojewoda Mazowiecki) issued a decision confirming the acquisition ex lege by the municipality with effect from 1 January 1999 of the part of the property covered by the road. This decision was based on section 73 (1) of the Act of 13 October 1998 – the Public Administration Reform (Introductory Provisions) Act, hereinafter the Introductory Provisions Act 1998 (Ustawa -przepisy wprowadząjace ustawy reformujące administrację publiczną), regulating the status of properties taken over in the past by the State for the purposes of constructing public roads (see Relevant domestic law below, paragraph 21). Under this Act, owners whose land had ex lege become the State’s or local municipalities’ property on 1 January 1999 under its section 73(1), were entitled to request compensation if they applied for it between 1 January 2001 and 31 December 2005. On the latter date the period for submitting the compensation claim would expire. 9. On 14 August 2009 the applicants requested compensation for the land to which the decision of 2 July 2009 pertained. 10. On 28 September 2009 the Mayor of the Sochaczew District discontinued the proceedings for compensation, finding that the applicants’ request for compensation had been lodged after the period for submitting their claim had expired. The applicants appealed. 11. On 3 December 2009 the Mazowiecki Governor quashed the decision of 28 September 2009 in so far as it had discontinued the proceedings and refused to allow the applicants’ request for compensation, finding that the period for submitting their claim had expired on 31 December 2005. 12. On 10 November 2010 the Warsaw Regional Administrative Court dismissed the applicants’ appeal, considering that they should have sought compensation prior to 31 December 2005. The judgment was served on the applicants’ lawyer on 27 January 2011. 13. On 27 February 2011 the lawyer informed the applicants that there were no grounds on which to bring a cassation appeal before the Supreme Administrative Court as their entitlement to claim compensation claim had been extinguished under the provisions of the Introductory Provisions Act 1998. It followed that the cassation appeal would not have offered any prospects of success. 14. On 1 March 2007 the Łódź Regional Office informed the applicants that administrative proceedings had been instituted ex officio with a view to giving a decision confirming the ex lege expropriation with effect from 1 January 1999 of land taken from them prior to 1989 for road construction purposes. 15. On 13 March 2007 the applicants requested that compensation be paid to them. 16. On 2 July 2009 the Łódź Governor (Wojewoda Łódzki) issued a decision confirming the acquisition ex lege by the municipality with effect from 1 January 1999 of the land covered by the road. It was based on section 73 (1) of the Introductory Provisions Act of 13 October 1998 17. On 2 July 2008 the Łódź County Sheriff (Starosta) refused to pay compensation to the applicants, referring to section 73 (4) of the 1998 Act. The applicants appealed, relying on the constitutional protection of their right to the peaceful enjoyment of their possessions. They argued that the authorities had failed to deal with their case speedily, since the proceedings to confirm expropriation had not been instituted until 2006, eight years after the Introductory Provisions Act 1998 had entered into force. As a result, they had been deprived of their entitlement to compensation. Had the authorities instituted the proceedings before the relevant expiry date, the applicants would not have lost their entitlement. They referred in particular to their advanced age and to the fact that the second applicant was in poor health, which made it extremely difficult for her to take the relevant steps, in particular in the absence of any information about her legal situation. 18. On 25 May 2009 the Łódź Governor dismissed their appeal. The applicants appealed to the Regional Administrative Court. On 27 October 2009 the Łódź Regional Administrative Court stayed the proceedings, pending the outcome of the case No. K 20/09 instituted by the Ombudsperson which was at that time being examined by the Constitutional Court (see below, Relevant domestic law). 19. The proceedings were resumed at a later date. By a judgment of 24 August 2011 served on the applicants on 12 September 2011 the administrative court dismissed their appeal, referring to section 73(4) of the Introductory Provisions Act and to the judgments of the Constitutional Court (see paragraphs 27-33 below). It held that the period for submitting the compensation claim had expired in accordance with the terms specified in the Act. 20. As well as introducing general reforms to public administration, the Public Administration Reform (Introductory Provisions) Act 1998 of 13 October (Przepisy wprowadzające ustawy reformujące administrację publiczną) regulated the legal status of land taken over in the past for the purposes of road construction without a formal transfer of ownership of the land. 21. Section 73(1) of that Act conferred ex lege on the State Treasury or on the relevant local municipality ownership of such lands with effect from 1 January 1999 based on de facto possession. It further stipulated that the former owners had a right to compensation. 22. Section 73(4) of the 1998 Act provided that the former owners could submit compensation claims to the administrative authorities between 1 January 2001 and 31 December 2005. After 31 December 2005 the compensation claim had to expire. The original wording of this provision referred to a future statute which would govern the principles and procedures for the determination of the compensation to be awarded. It was amended in 2000 and the general reference to a “separate Act” therein was replaced by the specific reference to the Land Administration Act 1997 (see paragraphs 24-26 below). 23. The Act was published in the Journal of Laws of the Republic of Poland in 1998, no. 133, as item no. 872. It entered into force on the day of its publication, 29 October 1998. 24. On 1 January 1998 the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the Land Administration Act”) entered into force. It provides a generally applicable legal framework for expropriations. Although some of its provisions were modified in recent years, the substance of the provisions relevant to the present case remained unchanged. 25. In accordance with section 128 § 1 of the Act, compensation for expropriation has to correspond to the value of the property right concerned. Under section 130 § 1 of the Act, the amount of compensation is 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 the property is estimated on the basis of an opinion prepared by a certified expert. 26. Section 134 of the Act provides for the market value of the expropriated property to serve as a basis on which the amount of compensation is fixed. The following criteria are to be taken into consideration when establishing the market value of the property: its type, location, the use to which it has been put, the existence of any technical infrastructure on the property, its overall state and current prices of properties in the municipality. 27. In its judgment of 14 March 2000 (P 5/99) the Constitutional Court declared the section 73 (1) and 73 (5) of Introductory Provisions Act 1998 compatible with the Polish Constitution as well as with the Article 1 of the Protocol No. 1 to the Convention. It discontinued the proceedings in respect of the section 73(4) of Introductory Provisions Act 1998. The court stressed that the legislator intended to regulate in a general manner the question of land ownership in a domain of particular public importance. Sections 73 (1) and 73 (5) of Introductory Provisions Act 1998 concerned plots taken over during several decades for the purpose of road construction. The de facto taking of land and construction of roads created irreversible situations. The contested provisions pertained only to past situations and did not allow any further taking over of plots. The legislation under review served not only the public interest but also the interests of owners. It ended the state of uncertainty caused by the fact that they had not been able to exercise their ownership. The ex lege effect of the provisions was a rational solution which made it possible to bring the legal status of the plots into line with the realities. 28. In its judgment of 20 July 2004 (SK 11/02) the Constitutional Court declared section 73(4) of Introductory Provisions Act 1998 compatible with the Polish Constitution. The court stressed that Section 73 of Introductory Provisions Act 1998 concerned plots whose legal status did not reflect their actual situation existing for long periods of time, lasting for up to fifty years. The Constitutional Court emphasised that the owners concerned had in the past a possibility of asserting their rights but had failed to do so within the applicable time-limits. 29. The legislation vesting ownership of properties in the State Treasury or local municipalities by way of the 1998 Act was a one-off and exceptional solution the effects of which were limited in time. It concerned only land taken over for the purposes of road construction. It required special measures to be applied, partially departing from those envisaged by the Land Administration Act 1997. The solution consisting in assessing ex officio the status of all the plots concerned and issuing ex officio individual decisions confirming expropriation ex lege in each and every case could have not been carried out within a reasonable time. 30. The court observed that the special provisions created by the Introductory Provisions Act 1998 imposed certain limitations on the compensation paid to the owners whose lands had been in the past de facto expropriated for road construction purposes. These limitations included their inability to request compensation before 2001; a limitation on the period within which such applications could be made until 31 December 2005; a failure to specify exactly when compensation had to be paid to the person entitled; and a failure to take into account changes to the value of the property between the date ownership was formally transferred by way of a decision confirming the ex lege expropriation and the date the compensation was decided. However, the context and character of the set of measures created by section 73 of the 1998 Act justified these restrictions. 31. On 15 September 2009 the Constitutional Court gave a judgment (33/07) in reply to legal question put to it by the Gliwice Regional Administrative Court. That court requested the Constitutional Court to make an assessment of compatibility of section 73(4) of the 1998 Act with the Constitution in so far as this provision allowed for a compensation entitlement to be irrevocably extinguished regardless of whether an administrative decision confirming the acquisition ex lege, as from 1 January 1999, of land used for road construction purposes by the municipality (or the State Treasury) had been given. The Constitutional Court noted that proceedings concerning such decisions were governed by the generally applicable provisions of the Code of Administrative Procedure. Former owners were parties to these proceedings. The decisions confirming that the municipality or the State Treasury, as the case might be, had acquired ownership of properties taken de facto over by the State in the past were of a declaratory character. The fact that the 1998 Act did not provide for a time-limit for the authorities to give such decisions did not mean that it was impossible in law for former owners to claim compensation in absence of these decisions. These decisions were not a legal prerequisite for claiming compensation prior to the expiry of the substantive time-limit provided for by that Act, namely 31 December 2005. If a request for compensation was submitted in the absence of a decision, the compensation proceedings should be stayed. The authority to which the compensation request was submitted was obliged to request the governor to give a decision confirming the expropriation ex lege as from 1 January 1999, after which the compensation proceedings had to be resumed. The Constitutional Court referred to the practice of the administrative authorities, established by the courts (the Supreme Administrative Court, I OSK 260/08, 2 February 2008; the Warsaw Regional Administrative Court, I SA/Wa 1/06, 14 June 2006 and I SA/Wa 681/07, 10 July 2007). The court observed that the request for compensation under Section 73 the 1998 Act was in principle a second opportunity for owners to seek compensation as they could have claimed it in the past when their land had been taken for the road construction purposes. 32. On 30 November 2009 the Ombudsman challenged the constitutionality of the section 73(4) of the 1998 Act, submitting that it breached the proportionality principle enshrined in the Constitution by introducing an unclear and unconstitutional notion of “equitable” (słuszne) compensation, differing from that used for ordinary compensation purposes in the 1997 Land Administration Act. It was also in breach of the constitutional protection of the right to the peaceful enjoyment of possessions, as the compensation entitlement had irrevocably ceased to exist on 31 December 2005. It was further submitted that the period for submitting a compensation claim should not have been allowed to expire before the administration had given an expropriation decision. No provision was made in the 1998 Act obliging the authorities to issue the expropriation decisions prior to 31 December 2005, which rendered that regulation manifestly unfair (“regulacja pozorna”) and deprived owners of a reasonable protection of their rights. 33. In its judgment of 19 May 2011 (K 20/09) the Constitutional Court dismissed the Ombudsman’s challenge. It essentially rephrased its own reasoning adopted in 2004 and reiterated that the former owners had had ample time to take appropriate steps to obtain compensation; initially two years of vacatio legis after the 1998 Act had entered into force and, subsequently, five years within which to seek compensation. It had been possible for them to secure their rights by demonstrating adequate diligence. 34. In a number of decisions the courts held that the decisions given under the Introductory Provisions 1998 Act confirming acquisition ex lege of the land by the municipalities (or by the State Treasury) on 1 January 1999 were of a declaratory character. The courts also held that the fact that such a decision had not been issued did not prevent the persons concerned from claiming compensation under the provisions of that Act (see e.g. the Warsaw Regional Administrative Court, I SA/WA 694/09, 21 October 2009; the Poznań Regional Administrative Court, II SA/Po 558/90, 15 January 2009 and the Supreme Court, resolution III CZP 77/02, 21 January 2003).