CASE OF TARNAWCZYK v. POLAND
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Pecuniary and non-pecuniary damage - award
Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1930 and lives in Sanok. She owns a plot of land with a house where she lives with her son and his family. The application relates to plot no. 1681 (at present 1444/3). 6. In the 1970s a general land development plan for the municipality of Sanok was adopted. The applicant's property, which was at that time owned by her relatives, was designated for public purposes. 7. On 28 May 1977, acting under the Act of 1958 on Rules and Procedures of Expropriation of Real Estate (ustawa o zasadach i trybie wywłaszczania nieruchomości), the Governor of Krosno (Wojewoda Krośnieński) decided to enter a notice about the institution of expropriation proceedings in respect of the property in the land and mortgage register kept by the local Public Notary Office. 8. An official expropriation decision was never issued. However, experts appointed by the Governor subsequently conducted numerous visits to estimate the property's value with the purpose of assessing the compensation payable for the future expropriation. 9. The applicant submitted that she had been informed several times by the Town Office that in view of the expropriation an earlier purchase of her property by the municipality was possible and that she and her family would be entitled to obtain new apartments and compensation. 10. The applicant carried out minor necessary repairs, but as the house had been built in 1934, it required general renovation. She submitted that in the late 1970s she had been told by a local official that she would not receive permission for a general renovation of the house because of the expropriation notice in the land register. The Government contest this submission. 11. In February and November 1979 the Public Roads Maintenance District Authority (Rejon Eksploatacji Dróg Publicznych), a Stateowned enterprise, carried out some demolition works on the property concerned. The applicant was neither requested to give her assent to them nor informed of them beforehand. The works involved cutting down trees and shrubs in her garden and extensive excavations. As a result of these works the applicant's garden was destroyed, her garage collapsed, apparently in March 1981, and water accumulating in ditches penetrated into the cellar. The works were suddenly interrupted without reason. The applicant was paid compensation for plants and fruit which had been destroyed. 12. Upon the applicant's protests she had been repeatedly reassured by the authorities that the land would soon be expropriated and she would receive appropriate compensation. At the same time, extensive construction works had continued on the neighbouring properties, which had already been expropriated. 13. In March 1981 the applicant informed the Town Office that as a result of the works water had been gathering on the land and endangering the stability of the house. In May 1981 the Town Office informed the applicant that her land would be bought out after the relevant estimates had been drawn up. On an unspecified later date in the 1980s the applicant obtained compensation for the fact that following the works she could not use her land as a garden for several years. 14. During the 1980s and 1990s the applicant repeatedly applied to the Town Office demanding that her land be restored to its previous condition or that it be purchased and new accommodation granted to her, but to no avail. 15. On 4 February 1987 she complained to the Krosno Governor. She pointed out that her plot of land had been designated for expropriation, but that no construction works in connection with the viaduct had started and that she had not been served with any expropriation decision. She reiterated that the property had sustained serious damage and the authorities had refused her requests for it to be redressed until the actual expropriation had been carried out. 16. By a decision of 15 June 1989 the Sanok District Court declared that the applicant had acquired ownership of plot no. 1681 by acquisitive prescription as of 1 January 1977. On 12 March 1990 a land and mortgage entry for that plot was established in the applicant's name. A notice about the expropriation proceedings was put in the relevant part of the entry. 17. In 1992 the applicant divided plot no. 1681 into two smaller plots (nos. 1681/1 and 1681/2). Subsequently, on 25 November 1992 the applicant sold plot no. 1681/1 (at present no. 1444/1) to a third party. 18. On 16 February 1995 the applicant requested the Sanok Town Office to take the relevant steps in order to have the expropriation warning concerning plot no. 1681/2 deleted from the land register, submitting that the warning had become groundless. On 16 February 1995 the Town Office lodged the necessary application with the land registry, indicating that the expropriation plans had been abandoned on an unspecified date. On 23 February 1995 the District Court complied with the request. 19. On an unspecified later date the plot was divided into two smaller plots and as a result, a third plot, no. 1681/3, was created. On 15 March 1995 the applicant sold it. 20. On 25 August 1998 the applicant asked the Krosno Governor to clarify the situation of her property and for compensation in connection with the expropriation. The matter was transferred to the Sanok Mayor. On 9 October 1998 the Town Office informed her that the new local development plan was being drafted. The plan would determine in detail the outline of communication routes in the city and as a result also the advisability of buying out her real estate. The Office reminded her that until expropriation it was the owner who was obliged to maintain his house appropriately. Bearing in mind, however, the restrictions on general renovations the Office would consider the possibility of providing the applicant with another flat as a settlement with her. 21. On 7 January 1999 the applicant again applied to the Sanok Town Office for compensation. She mentioned on that occasion that she had obtained compensation, in an unspecified amount, for several years when she could not use the land as a result of damage caused by works carried out in 1979. 22. By a letter of 26 February 1999 the applicant was informed by the local authorities that they did not envisage using her plot of land for public purposes. 23. On 10 May 1999 the applicant instituted civil proceedings against the State Treasury represented by the Sanok District Office (Urząd Rejonowy) in respect of non-compensated pecuniary damage she had sustained as a result of expropriation proceedings having been instituted in respect of plot no. 1681/2. On 7 June 1999 the applicant was exempted from court fees and a legal-aid lawyer was later appointed to represent her. 24. On 29 September 1999 the Mayor of Sanok District (Starosta Powiatowy) replied to a summons sent by the court to the Chief of the District Office (Urząd Rejonowy) and explained that as a result of the reform of the local administration the appointment of heads of district offices had ceased as of 31 December 1998. Until that date the heads of district offices had been competent to represent the State Treasury in matters concerning the management of its properties. 25. On 29 September 1999 a hearing was held. The defendant failed to attend it. In connection with the Mayor of Sanok District's letter the applicant was requested to determine the legal entity against which she directed her statement of claim. 26. In reply, on 19 November 1999 the applicant's lawyer indicated the Podkarpackie Governor as representing the defendant State Treasury. He also specified the applicant's claim, indicating that she demanded compensation for the physical damage to her house resulting from the planned expropriation which had been caused by the fact that she had had to abstain from carrying out major renovation works and by the changes in the land configuration caused by the works carried out in 1979. 27. On 17 January 2000 the Podkarpackie Governor replied to the statement of claim, arguing that he could not act as a defendant in the proceedings. According to Article 11 of the Land Management Act of 21 August 1997, it was the Head of District (starosta powiatowy) who should represent the State Treasury in matters relating to expropriations, given that expropriations belonged to the so-called “commissioned tasks” of the Government administration (zadanie z zakresu administracji rządowej). Until 31 December 1998 the State Treasury had been represented in such cases by heads of district offices. From the statement of claim it could be assumed that the expropriation had to be effected upon the Sanok community's motion. The plaintiff had, however, failed to submit any documents to confirm the statements included in her action. It should therefore be rejected in respect of the Podkarpackie Governor. 28. At a hearing held on 27 January 2000 the applicant's lawyer maintained his opinion that the action should be pursued against the Podkarpackie Governor as he was the successor of the Rzeszów Governor who had issued the first decision in the applicant's case in 1977. On 18 June 2001 an expert opinion was submitted, assessing the physical damage to the applicant's house and garage at 22,976 Polish zlotys (PLN) and the value of construction materials which the applicant had bought for the purposes of general renovation but had not used at PLN 5,859. On an unspecified later date the applicant limited her claim to the damage suffered as a result of the 1979 construction works, the deterioration of the buildings and the waste of building materials. 29. On 28 November 2001 the Krosno Regional Court awarded the applicant compensation amounting to 28,835 PLN. That amount covered both the physical damage to the house and the cost of the building materials referred to above. The court found that there had been an obvious causal link between the expropriation proceedings instituted in the past in respect of the applicant's property on the one hand, and, on the other, the works carried out in 1979 by a State-owned enterprise and the ensuing damage to the applicant's house. It also noted that because of the pending expropriation proceedings she could not use the building materials she had purchased for the general renovation. It therefore found the compensation claim against the Podkarpacki Governor, acting as the legal successor of the former Krosno Governor, justified. 30. The Governor appealed, arguing that he did not have standing in the proceedings, given that following the two major administrative reforms, in 1990 and 1998, it was the Mayor of Sanok District who was competent to represent the State Treasury in such matters. 31. By a judgment of 21 February 2002 the Rzeszów Court of Appeal allowed the appeal under the applicable legislation and dismissed the applicant's claims. The court first noted that under the applicable land-planning legislation the mere fact that the applicant's property had been designated for future expropriation and that certain restrictions on the use of property had resulted from it did not entitle her to any compensation as the applicable laws clearly excluded such entitlements. Nonetheless, the applicant had in the past received compensation, in an unspecified amount, for certain damage caused to her property after the expropriation proceedings had been instituted. As to the claim concerning the value of the building materials, the court was of the view that it had not been shown that any official decision or information preventing her from renovating the house had been given or communicated to the applicant. 32. As for the physical damage to the house and garage, the court stated that the applicant had not established the responsibility of the defendant State Treasury for it. According to the court, it was essential to establish which administrative entity was originally to benefit from the property's expropriation and which public authority had ordered the works carried out on the applicant's plot. It fell to the applicant to establish the legal and factual elements of the case decisive for the determination whether it was the State Treasury or the local municipality which should have been sued in the case. As the applicant had failed to show any legal basis for the responsibility of the State Treasury, the claim should be dismissed. 33. The applicant did not lodge a cassation appeal as her legalaid lawyer refused to prepare and lodge it with the Supreme Court. 34. On 31 January 1961 Parliament (Sejm) enacted the Local Planning Act 1961 (ustawa o planowaniu przestrzennym). It was subsequently replaced by the Local Planning Act of 12 July 1984 (ustawa o planowaniu przestrzennym). 35. On 7 July 1994 a new Local Planning Act (ustawa o zagospodarowaniu przestrzennym) was enacted. It entered into force on 1 January 1995. 36. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994. 37. On 27 March 2003 a new Local Planning Act (ustawa o planowaniu i zagospodarowaniu przestrzennym) was enacted which repealed the 1994 Act. 38. From 1958 until 1984 the criteria and procedure applicable with regard to expropriation of individual properties were set out in the Act On Rules and Procedures For Expropriation of Real Estate 1958 (ustawa o zasadach i trybie wywłaszczania nieruchomości). 39. From 29 April 1985 to 1 January 1998 the rules governing the administration of land held by the State Treasury and municipalities were laid down in the Land Administration and Expropriation Act of 29 April 1985 (ustawa o gospodarce gruntami i wywłaszczaniu nieruchomości - the “1985 Land Administration Act”). 40. Article 50 of this Act provided that properties could be expropriated only for the benefit of the State or a municipality. 41. Pursuant to Article 53 (1) of the Act, a decision on expropriation had to include in particular: “(1) an indication of the property to be expropriated, ... (3) an indication of the party upon whose initiative the property is being expropriated, (4) an assessment of the amount of compensation, (5) identification of the persons (name, surname and address) entitled to compensation, (6) detailed factual and legal grounds, (7) instructions on appeal procedures.” 42. Under Article 55 of the Act, expropriation was to be carried out against payment of compensation. The payment was to be made within fourteen days from the date on which a decision to expropriate had become final. 43. On 1 January 1998 the 1985 Land Administration Act was repealed and the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the 1997 Land Administration Act”) was adopted, containing similar provisions on expropriation and compensation. 44. Neither under the 1961 nor under 1984 Local Planning Acts (see paragraph 34 above) were owners of properties to be expropriated in the future entitled to any form of compensation for damage resulting from restrictions on the use of their property and the reduction in its value originating in expropriations to be carried out at a future undetermined point in time. 45. Section 36 of the Local Planning Act enacted in 1994 created for local authorities a number of obligations towards owners whose properties were to be expropriated at an undetermined future date under land development plans adopted by competent municipal authorities. The municipalities were obliged either to buy plots designated for future expropriation under local land development plans, or to replace those plots by other plots within six months from the date on which a relevant request was submitted by the owner, or to award compensation for damage caused by the fact that the plot was designated for future expropriation. 46. However, this obligation and the corresponding claims of the owners applied only to plans adopted after the Act had entered into force, that is to say, to plans adopted by local municipalities after 1 January 1995. 47. Pursuant to the 1994 Act, plans adopted before the date of its entry into force were to expire on 31 December 1999. 48. In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years, namely until 31 December 2001. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995. 49. Under section 87 of the 2003 Act (see paragraph 37 above), all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003. 50. Compensation entitlements for owners, provided for by the 1994 Act (see paragraph 45 above), were in essence maintained by the 2003 Act. Pursuant to section 36 of that Act, when, following adoption of a new local land development plan, the use of property in the manner provided for by a previous plan has become impossible or has been restricted, it is open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts. 51. Before 1990 ownership of publicly-owned property was essentially assigned to the State Treasury. 52. The Local Government (Introductory Provisions) Act of 10 May 1990 (Przepisy wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych – “the 1990 Act”), which came into force on 27 May 1990, and other related statutes enacted at that time, re-established local government and municipalities and transferred to them powers that had previously been exercised solely by the local State administration. Pursuant to section 5(1), ownership of land which had previously been held by the State Treasury and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality. 53. Section 36 § 3 (3) of the Act provides, as far as relevant: “The State Treasury takes over: 3) obligations and receivables of local bodies of state administration (...) resulting from final and binding court rulings and administrative decisions delivered before 27 May 1990 (...).” 54. In 1970 the Supreme Court held that in cases where it was obvious from a statement of claim which organisational entity should represent the State Treasury in the proceedings, the court should not reject it even if a plaintiff had wrongly indicated the entity; it was obliged to serve the statement of claim on the appropriate entity (decision of 17 December 1970, I PZ 78/70.) 55. Section 36 § 3 (3) of the 1990 Act, introducing the first stage of the reform of local administration (see paragraph 52 above) raised doubts as to which legal entity was liable for damages in connection with an unlawful administrative decision issued by the State before the administrative reform. The problem was subject to divergent judicial interpretation. 56. On 7 January 1998 the Supreme Court delivered a judgment (II CKN 550/97) in which it concluded that the municipality should be sued for compensation for damage caused by an administrative decision delivered before 27 May 1990. 57. On 1 August 2008 the Supreme Court held that when a plaintiff erred in the statement of claim by indicating the wrong organisational entity of the State Treasury, that shortcoming should be regarded as relating to the representation of the defendant and rectified accordingly; the court was obliged to ensure of its own motion that the appropriate organisational entity was summoned to act in the proceedings (II CK, 90/02). 58. On 16 November 2004 a panel of three judges of the Supreme Court, adopted a resolution (no. III CZP 64/04), finding that the municipality – and not the State Treasury – had the legal capacity to be sued for damages in connection with an administrative decision issued before 27 May 1990, provided that the decision had been annulled or declared unlawful after that date. 59. In a resolution of 7 December 2006 (no. III CZP 99/06), adopted by a panel of seven judges, the Supreme Court concluded that the State Treasury had the capacity to be sued for damages arising from an administrative decision delivered before 27 May 1990, even if the decision had been annulled or declared null and void after that date. The resolution was adopted following the referral of a legal question to the Supreme Court by another court of appeal which had a similar case before it. 60. The Supreme Court maintained this position in several subsequent judgments.