CASE OF WISNIEWSKA v. POLAND
Remainder inadmissible;No violation of P1-1
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. In 1996 the Gdańsk Municipal Office issued an initial approval for a development project on land owned by the applicant (decyzja o warunkach zabudowy i zagospodarowania terenu) providing, on the basis of a local land development plan adopted in 1993, for the improvement and resurfacing of Słowacki Street and the construction of a roadway. On 18 December 1997 the Gdańsk Municipal Council adopted a local land development plan for the construction of a road junction in the vicinity of the applicant’s land, indicating that there was a pressing need to improve and widen a road leading from the city centre to the airport. On 21 December 1999 the Gdańsk Municipal Office (Urząd Miejski) issued another approval for the construction of the roadway, based on the provisions of the local land development plan adopted on 18 December 1997. 6. On 29 March 2000 the Pomorze Governor approved a construction project for the roadway. 7. The applicant owned forty-three plots of a total surface of 4.77 hectares. In September 1999 an estimate of the value of seven plots, covering 6,656 square metres, was prepared by expert R.Ż. with a view to their expropriation. That expert assessed the market value of the land at 479,919 Polish zlotys (PLN). 8. On 21 October 1999 a negotiation meeting was held at the Gdańsk Municipal Office. The town offered PLN 479,912 as compensation for plots nos. 47/30, 47/32, 47/34, 47/36, 55/7, 60/1 and 61, at PLN 70.08 per square metre, calculated on the basis of the September 1999 estimate. The applicant refused to accept this price and argued that the market value of a square metre of similar land in the town was approximately PLN 600. 9. In February 2000 another expert, J.K., estimated the value of the applicant’s properties at PLN 63.70 per square metre, based on the agricultural character of the land. On 2 March 2000, referring to that report, the Gdańsk Municipal Office, acting on behalf of the Mayor of Gdańsk, fixed a two-month time-limit for the applicant to conclude a contract for the sale of her land for the sum of PLN 479,912. It informed her that if further negotiations failed, expropriation proceedings would be instituted and the land would be expropriated against payment of compensation in the amount of PLN 423,987. 10. On 26 April 2000 another negotiation meeting was held. The Municipal Office proposed conditions identical to those proposed in October 1999. The applicant reiterated her position as to the price and submitted that she would accept replacement property within the limits of the municipality as compensation. 11. On 8 May 2000 expropriation proceedings were instituted. 12. On 29 May 2000 an administrative hearing was held in the Gdańsk Municipal Office. The applicant proposed that the City should give her PLN 300 per square metre for her land, but her offer was rejected. The applicant again suggested that she should be given other plots in exchange for her land, but that solution was rejected on the ground that the City did not have any suitable plots at its disposal. 13. In June 2000 expert J.K. updated the estimate, having regard to the passage of time and the increase in market prices. She assessed the price of the applicant’s land at PLN 439,296. In the same month, an expert commissioned by the applicant assessed the price of the land at PLN 2,374,749. 14. On 27 June 2000 the Mayor of Gdańsk gave a decision by which the seven plots referred to in paragraph 7 above were expropriated. The amount of compensation for the land and the fence constructed on it was fixed at PLN 465,537. It was to be paid within 14 days from the date on which the expropriation decision became final. He observed that the amount of the compensation had been fixed on the basis of an estimate prepared by an expert, with reference to prices of similar plots on the local real estate market in June 2000. 15. The applicant appealed. She argued that the decision was in breach of sections 128, 130 and 134 of the Land Administration Act 1997. She submitted that it was based on the estimate drawn up in September 1999, which no longer reflected current prices of land. She referred to the caselaw of the Supreme Administrative Court according to which compensation for expropriated land should take into consideration current local market prices for similar types of land and, also, prices of such land sold by the municipality by way of tender. She referred to a privately commissioned estimate prepared by a certified expert (see paragraph 13 above), according to which the price of 1 square metre of comparable land in Gdańsk at that time was PLN 356. 16. On 25 January 2001 the Pomorze Regional Office, acting on behalf of the Pomorze Governor, upheld the expropriation decision, noting that it had been given in order to have the local land development plan implemented. The expropriation was therefore in the public interest. The negotiations between the parties had failed. Two estimates drawn up for the purpose of the negotiations were consistent and indicated, in the light of prices paid for properties of a similar character and location, that the market value of the property concerned was PLN 60-70 for 1 square metre. In the circumstances, the decision was lawful. 17. The applicant appealed to the Supreme Administrative Court. She argued that the price the municipality had offered during the negotiations bore no reasonable relation to the market value of her land. The municipality had refused to offer her replacement property, despite the fact that at the time it had been selling numerous properties to private buyers by way of tender. At a hearing held on 23 May 2001 the applicant applied for a stay of the enforcement of the expropriation decision. The court refused, noting that the enforcement of the decision had been stayed ex lege because of the authorities’ failure to submit their reply to the applicant’s appeal within the time-limit. 18. By a judgment of 25 July 2001 the Supreme Administrative Court quashed the Governor’s decision. The court observed that the modernisation of Słowacki Street was in the public interest as it was a part of the No. 7 trunk road. It further noted that in the light of the documents in the case file it had not been shown beyond doubt that the expropriation of all of the applicant’s designated plots had been necessary in order to implement the road construction project. In their decisions the authorities had failed to refer to the maps and plans prepared in connection with the local land development plan and road construction projects to show that the plots concerned were indeed covered by those projects. 19. The court further addressed the question of the compensation fixed by the contested decision. It noted that the authorities, when holding the administrative hearing on 29 May 2000, had failed to respect the relevant procedural provisions. Under the provisions of Article 89 of the Code of Administrative Procedure the purpose of an administrative hearing was to ensure, in a situation where there was a discrepancy between expert opinions as to compensation, that the experts were questioned and the discrepancy elucidated. Furthermore, the parties should have been given an opportunity to put questions to the experts and to make oral statements before the administrative authority. No such measures had been taken. The court noted that the hearing had been held prior to the date on which the last expert opinion concerning the compensation had been prepared. There was no proof in the case file that this last opinion had ever been served on the applicant. 20. The judgment with its written reasons was served on the applicant’s lawyer on 9 August 2001. 21. The expropriation and compensation proceedings before the appellate authority were later conducted again. The Pomorze Regional Office informed the parties that the administrative hearing would be held again and requested the Gdańsk Municipal Office to submit further evidence as to the prices of similar properties. Ultimately two hearings were held, on 3 September 2001 and 22 January 2002. Three experts were questioned. The parties were invited to consult the case file. 22. On 25 February 2002 the Pomorze Governor upheld the firstinstance decision in its part concerning the expropriation. He fixed the amount of compensation to be paid to the applicant at PLN 554,898. He referred to the expert opinions prepared for the purposes of the proceedings and explained which evidence and conclusions had been considered credible. He reiterated that the land concerned was of an agricultural nature. 23. Compensation was paid to the applicant on 27 February 2002. She accepted it, but observed that the amount was unsatisfactory. She subsequently appealed, submitting that the method by which the compensation had been fixed was to her detriment, that the second-instance authority had failed to respect the guidance contained in the judgment of the Supreme Administrative Court and that the amount of compensation did not reasonably correspond to the value of the land. 24. On 31 May 2005 the Supreme Administrative Court quashed the contested decision, finding that the method used to establish the value of the expropriated land was not in compliance with the applicable legal regulations. In particular, the expert opinion prepared by J.F., heavily relied on by the first-instance authority, was based on prices applicable in June 2000. The proceedings were subsequently conducted again. The Governor invited the parties to submit new evidence and to consult the case file. Another expert was appointed and submitted his evaluation report, assessing the value of the applicant’s property at PLN 725,231. On 28 April 2006 another administrative hearing was held before the second-instance authority. A time-limit was fixed for the parties to submit new evidence. Both the applicant and the Gdańsk Municipal Office availed themselves of that right. 25. On 4 July 2006 the Governor issued a new decision. It upheld the first-instance expropriation decision and increased the amount of compensation to PLN 725,232, with reference to the new expert report. 26. On 2 August 2006 the applicant, represented by a lawyer, appealed, submitting arguments similar to those on which she had relied in her previous appeal. 27. On 3 August 2006 the applicant revoked the power of attorney given to her lawyer. 28. On 29 September 2006 the Gdańsk Administrative Court rejected her appeal, noting that the applicant had failed to pay court fees. This decision was served on the applicant’s new lawyer on 18 October 2006. On 22 October 2006 the applicant requested the court to grant her retrospective leave to appeal out of time. She submitted that she had dismissed one lawyer and retained another one during the appellate proceedings. She had not been aware that the court fee should have been paid. 29. On 29 December 2006 the Gdańsk Administrative Court refused to grant the applicant retrospective leave to appeal out of time, considering that she had failed to inform the court about the alleged changes in her legal representation and to demonstrate that she had not been at fault in failing to pay the court fee. The applicant’s new lawyer appealed against that decision. 30. On 2 March 2007 the Supreme Administrative Court upheld the refusal to grant the applicant leave to appeal out of time. It observed that the applicant had failed to show that she had not been at fault in neglecting to pay the court fee. She had informed the first-instance court of her decision to revoke her first lawyer’s power to act on her behalf on 24 October 2004. Under the applicable procedural provisions, that was the date on which the revocation had taken effect. 31. As a result, the first-instance decision on expropriation and compensation became final. On 27 April 2007 the Gdańsk Municipality paid the applicant the outstanding amount of PLN 170,333. 32. On 20 September 2006 the Gdansk District Court rejected the applicant’s claim by which she sought compensation for the fact that from September 2000 onwards the municipality had been using her land without a valid expropriation decision. The court considered that the applicant’s claim could not be examined before a civil court and had to be dealt with in administrative proceedings. 33. By a decision of 16 May 2001 the Pomorze Regional Office, acting ex officio, stayed the enforcement of the expropriation decision given on 25 January 2001 (see paragraph 14 above), having regard to the fact that the applicant had lodged an appeal against it. It referred to section 9 of the Land Administration Act. 34. The Gdańsk Road Management Office (Zarząd Dróg i Zieleni) appealed against that decision. It argued that the mere fact that the applicant had contested the first-instance expropriation and compensation decision could not justify the staying of its enforcement. The construction of the road, which was by then well advanced, should not be delayed as this would entail serious financial loss. They further referred to concrete technical difficulties in the road construction and its logistics, caused by the fact that work which had already started could not be continued on the applicant’s land, such as the impossibility of using that land for transport purposes. 35. On 29 June 2001 the President of the National Housing and Local Land Development Office quashed the contested decision on formal grounds and ordered that the enforcement issue be re-examined. 36. On 10 August 2001 the Pomorze Regional Office, acting ex officio, resumed the enforcement of the expropriation decision, having regard to the judgment of the Supreme Administrative Court of 25 July 2001 dismissing the applicant’s appeal against the requisition order (see paragraph 43 below). It observed that following that judgment, the Office had a legal right to take possession of the land concerned, which was needed for the construction project. 37. After the first-instance expropriation decision had been given on 27 June 2000 (see paragraph 14 above) and when the applicant’s appeal against it was pending, on 7 August 2000 the Mayor of Gdańsk issued a requisition order allowing the Gdansk Road Management Office, on the basis of Article 122 of the Land Administration Act, to take possession of the applicant’s property with a view to starting construction work. He stated that it was necessary in order to proceed with the implementation of the already well-advanced road construction project and to prevent serious social and financial costs that further delay in the realisation of that project would cause. 38. The applicant appealed against that decision, emphasising that it was unlawful. She argued that no final expropriation decision in respect of her property had been given. The grounds invoked by the Mayor in the requisition order were drafted in very broad terms. The Mayor had failed to indicate, with ’s case to impose such a serious restriction on the exercise of her still valid ownership rights. No relevant and sufficient reasons for the occupation of her land had been advanced. In particular, the mere fact that expropriation proceedings had been instituted and construction work was about to start did not warrant the conclusion that such a serious restriction of her ownership rights was justified. 39. In September 2000 road construction work commenced on the neighbouring plots. No work had yet been carried out on the applicant’s land. On 5 September 2000 the applicant applied to the Gdańsk Regional Building Works Inspector for the work on her land to be stopped. On 6 October 2000 the Inspector informed the applicant that no work had yet been conducted on her land. On 20 October 2000 on-the-spot inspection, in the presence of the applicant, confirmed that fact. 40. On 5 December 2000 the Governor of Pomorze dismissed the applicant’s appeal against the requisition order of 7 August 2000, fully endorsing the arguments relied on by the first-instance authority. The applicant appealed against that decision before the Supreme Administrative Court, asking the court to stay the enforcement of the requisition order. 41. On 23 May 2001 the court refused the applicant’s request for a stay of the enforcement of the requisition order, holding that to allow her request would defeat the very purpose of the requisition order. 42. On 15 June 2001 the Pomorze Regional Office requested the Supreme Administrative Court to give priority to the examination of the applicant’s appeal against the requisition order, referring to the fact that the construction work had been seriously delayed because no work could be done on the applicant’s land. The significant investment of public funds, the advanced stage of realisation of the project and the serious disturbance to traffic caused by the construction work called for priority to be given to the case. 43. By a judgment of 25 July 2001 the Supreme Administrative Court dismissed the applicant’s appeal. It observed that the expropriation proceedings had been conducted with a view to modernising the town’s road network, facilitating access to the local airport and reducing the number of road accidents on Słowacki Street. This was clearly in the public interest. The fact that the municipality had no final legal title to occupy the applicant’s property was the only remaining obstacle to starting the construction work on that property. It also hindered progress of the construction work carried out on the neighbouring properties. The Court referred to Article 122 of the Land Administration Act, which expressly provided for requisition orders in the absence of final expropriation decisions if a delay would make the implementation of a public-interest project impossible. 44. On 13 December 2000 the company commissioned by the municipality to carry out the work – the above-mentioned Gdansk Road Management Office – applied to the Gdańsk Municipal Office for a building permit for road construction work to be carried out on the applicant’s land. In April 2001 the applicant applied for the proceedings to be stayed, arguing that in the absence of the final decision on expropriation the Office had no legal right to take possession of her land. On 13 April 2001 the Road Management Office requested the Municipal Office to take steps to resolve the difficulties concerning the legal status of the applicant’s land, arguing that construction work on that stretch of road had advanced, with the exception of the 300 metres planned on the applicant’s land. 45. The proceedings concerning the application for the building permit were subsequently stayed, the authorities having regard to the fact that in the absence of the expropriation decision the construction company had no right to take possession of the land, and that under the applicable building regulations such a right was an essential prerequisite for requesting a building permit. 46. On 10 August 2001 the Pomorze Regional Office resumed the proceedings, having regard to the judgment of the Supreme Administrative Court of 25 July 2001 dismissing the applicant’s appeal against the requisition order (see paragraph 18 above). It observed that that judgment had conferred on the building company the right to take possession of the applicant’s land for construction purposes, even in the absence of a final expropriation decision confirmed by the administrative court. 47. On 14 August 2001 the Pomorze Regional Office issued the building permit as per the application, thereby authorising the construction company to start the construction work on the plots concerned. The applicant appealed against that decision, reiterating that as long as she had not been expropriated no one had the right to build on her land. 48. On 16 August 2001 the construction company took possession of the applicant’s land. The construction work started shortly afterwards. 49. On 12 November 2001 the Chief Building Works Inspector dismissed the applicant’s appeal and upheld the building permit. The applicant appealed, reiterating essentially that the building permit could not be given because the expropriation proceedings had not been concluded. 50. On 22 May 2002 the construction of the road was officially completed. On 23 January 2002 a decision authorising use of the road by the public was given. 51. On 27 June 2003 the Supreme Administrative Court dismissed the applicant’s appeal against the building permit. It dismissed the applicant’s arguments that the building company had had no legal right to take possession of her land. It noted that the first-instance expropriation decision had been given on 7 June 2000 (see paragraph 14 above). On 7 August 2000 the first-instance requisition order had been given (see paragraph 37 above). The latter order had become final and enforceable following the judgment of 25 July 2001 (see paragraph 43 above). The court held that that judgment had to be deemed to have conferred on the building company the right to possess the land within the meaning of the building regulations. 52. The court stressed that requisition orders were necessary for public-interest works to be able to go ahead where expropriation proceedings were still pending but the works should nevertheless be carried out to prevent certain negative consequences. Such a decision did not infringe the owner’s rights although it did limit them temporarily. 53. A requisition order should be assessed in the context of the expropriation proceedings seen as a whole. Such an order was usually given after the first-instance expropriation decision had been issued. The applicable legal regulations expressly allowed for such orders to be given. The court referred to Article 108 of the Code of Administrative Procedure and to section 122 of the Land Administration and Expropriation Act 1997. Expropriation and requisition orders were two different legal institutions. They conferred different rights on the public authorities. A requisition order was clearly of a temporary character. It was obvious that its legal effects differed from those produced by a decision on expropriation. However, it conferred on the authorities a right to take possession of the land and to use it for public-benefit purposes. By introducing a requisition order into the Land Administration and Expropriation Act 1997 the legislature had intended to avoid situations where expropriation could be blocked as a result of appeals lodged by the affected parties. 54. In the court’s opinion, if one accepted the applicant’s argument that the requisition order did not confer a right to take possession of the land for building purposes, the very purpose of the requisition order would be defeated. 55. A requisition order could not per se be regarded as a violation of ownership. It did not replace the expropriation decision and did not deprive the owner of his or her ownership right; at most it limited it temporarily until the termination of the expropriation proceedings. This was justified under Article 64 § 3 of the Constitution (see paragraph 59 below). The court recalled that the right of property was not an absolute right. 56. The court observed that the grant of the building permit did not infringe the law despite the exceptional character of the applicant’s situation and the pending expropriation proceedings. The applicant’s case demonstrated that, in practice, requisition orders were necessary. In certain cases, it would have been impossible to realise the public-benefit purposes for which expropriation proceedings had been instituted without having recourse to requisition orders. 57. Article 21 of the Constitution provides: “1. The Republic of Poland shall protect ownership and the right of succession. 2. Expropriation shall be allowed only in the public interest and against payment of just compensation.” 58. Article 31 of the Constitution reads: “Freedom of the person shall receive legal protection. Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law. Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” 59. Article 64 of the Constitution provides: “1. Everyone shall have the right to ownership, other property rights and the right of succession. 2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession. The right of ownership may be limited only by means of a statute and only to the extent that it does not violate the essence of such right.” 60. On 1 January 1998 the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the Land Administration Act”) entered into force. Under section 112 of that Act expropriation consists in the removal, by way of an administrative decision, of ownership rights or other rights in rem. Expropriation can be carried out where public-interest aims cannot be achieved without restriction of those rights and where it is impossible to acquire those rights by way of a civil law contract. 61. Under section 113 an expropriation can be carried out only for the benefit of the State Treasury or the local municipality. 62. Section 122 provides that in cases defined by Article 108 of the Code of Administrative Procedure (see paragraph 68 below) the administrative authority is empowered to issue a requisition order allowing an entity carrying out works for the public benefit to enter and take possession of land in respect of which a decision on expropriation has been given, if a delay would make realisation of the public-benefit works impossible. A clause of immediate enforceability (rygor natychmiastowej wykonalności) may be issued in respect of such an order. 63. In accordance with section 128 § 1 of the Act, expropriation is to 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 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. 64. Section 131 provides for the possibility of awarding the expropriated owner a replacement property if he or she so agrees. 65. Pursuant to section 132, compensation must be paid within fourteen days from the date on which the expropriation decision becomes subject to enforcement. 66. Section 134 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. 67. In situations specified by Article 108 of the Code of Administrative Procedure, local State administration can authorise an entity charged with the implementation of a public-interest project to occupy the property concerned immediately if a delay would render the implementation of the project impossible. 68. Article 108 of the Code provides for an administrative decision to be rendered immediately enforceable, even if further appeal against it is available, when this is necessary for the protection of life or limb, or for the protection of the national economy against serious damage, or for the protection of other societal interests.