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FOURTH
SECTION
CASE OF POTOMSKA AND POTOMSKI v. POLAND
(Application
no. 33949/05)
JUDGMENT
STRASBOURG
29 March
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Potomska and
Potomski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
judges,
and Fatoş Aracı,
Deputy Section
Registrar,
Having
deliberated in private on 8 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33949/05) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Polish nationals, Mr Zygmunt Potomski and
Mrs Zofia Potomska (“the applicants”), on 22 August
2005.
- The
applicants, who had been granted legal aid, were represented by Ms K.
Wicher-Kluczkowska, a lawyer practising in Koszalin. The Polish
Government (“the Government”) were represented by their
Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- The
applicants alleged a breach of the right to the peaceful enjoyment of
their possessions.
- On
27 August 2009 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1937 and 1939 and live in Darłowo. They
are a married couple.
A. Facts prior to 10 October 1994
- On
25 November 1970 the Board of the Sławno District National
Council (Prezydium Powiatowej Rady Narodowej) informed the
Board of the Darłowo Municipal National Council (Prezydium
Gromadzkiej Rady Narodowej) that pursuant to the decision of the
Minister of Municipal Economy (Minister Gospodarki Komunalnej)
of 25 September 1970 a cemetery located in Rusko was to be closed.
The closure was to be carried out on the basis of the 1959 Cemeteries
Act.
- On
12 September 1973 the Sławno District National Council issued a
preliminary decision in which the applicants were informed of the
conditions subject to which they could build a house on plot no. 59
located in Darłowo Municipality, Rusko settlement.
- On
15 March 1974 the Head of Darłowo Municipality (Naczelnik
Gminy) issued a decision in which he named Mr Potomski as the
buyer of plot no. 59, owned by the State Land Fund (Państwowy
Zasób Ziemi).
- On 14 November 1974 the applicants bought from the
State a plot of land with a surface area of 12 acres. The plot, no.
59, was classified as farming land. The applicants intended to build
a house and a workshop on it.
- On
4 May 1987 the Koszalin Regional Inspector of Historic Monuments
(Wojewódzki Konserwator Zabytków)
issued a decision adding the applicants' property to the register of
historic monuments (rejestr zabytków) on the grounds
that a Jewish cemetery had been established on it at the beginning of
the nineteenth century. It was one of the few remnants of the former
Jewish culture in the region. The Inspector found that the layout of
the cemetery was discernible and that certain parts of the cemetery
were intact (the foundations of a house of prayer, a stone wall and
some gravestones). The applicants were advised as to the scope of
their obligations deriving from the 1962 Protection of the Cultural
Heritage and Museums Act (ustawa o ochronie dóbr kultury i
o muzeach). They were prohibited from developing their property
unless they obtained a permit from the Regional Inspector of Historic
Monuments. The applicants did not appeal against the decision.
- On
30 May 1988 the applicants requested the Governor of Koszalin to
offer them an alternative plot of land on which they could construct
a house. On 15 June 1988 the Koszalin Regional Inspector of Historic
Monuments requested the Mayor of Darłowo to grant the
applicants' request. On 5 July 1988 the Mayor of Darłowo
informed the applicants that the exchange of plots requested by them
would be possible only in the event of the Mayor receiving a subsidy
from the Governor of Koszalin.
- On
30 September 1988 Darłowo Municipality adopted a local
development plan. The plan provided that the applicants could build a
house on their property (zabudowa zagrodowa).
- On
28 January 1991 the Mayor of Darłowo (Burmistrz)
requested the Koszalin Governor's Office to expropriate the
applicants' plot. On 12 March 1991 the Koszalin Governor's
Office transmitted that request to the Koszalin District Office
(Urząd Rejonowy) as the competent authority in the
matter.
- On
4 May 1992 the Governor of Koszalin requested the Koszalin Regional
Inspector of Historic Monuments to apply to the Head of the Koszalin
District Office (Kierownik Urzędu Rejonowego) to
institute expropriation proceedings pursuant to section 46(2)(2) of
the 1985 Land Administration and Expropriation Act. The Governor
considered that expropriation and payment of compensation would
enable the applicants to buy another plot for the construction of
their house.
- On
14 May 1992 the Regional Inspector requested the Head of the Koszalin
District Office to institute expropriation proceedings in respect of
the applicants' property. On 14 August 1992 the Head of the District
Office decided to discontinue the proceedings, finding that no entity
was interested in purchasing the cemetery. The Head of the District
Office further found that the applicants, who had been aware in 1974
that they were purchasing a Jewish cemetery, were obliged to protect
the site until they could find an entity interested in its purchase.
The applicants appealed and requested that the issue be resolved.
They stated that they were not interested in the maintenance and
protection of the site.
- On
2 October 1992 the Governor of Koszalin quashed the decision and
remitted the case. He held that the lower authority had to examine a
number of issues, in particular whether the property could be
expropriated following negotiations with the applicants. No
information was provided to the Court about the follow-up to that
decision.
B. Facts after 10 October 1994
- On
13 February 1995 the applicants requested the Head of the Koszalin
District Office to provide Darłowo Municipality with an
alternative plot of land which could then be offered to the
applicants. On 7 March 1995 the Koszalin District Office replied
that it did not have any such plots. On 25 April 1995 the Head of the
District Office informed the applicants that it did not have any plot
which could be the subject of an exchange. He further advised them to
lodge a request with the Mayor of Darłowo.
- On
an unspecified date in 2000 the applicants wrote to the Minister of
Culture and National Heritage about the problem with their property.
Their letter was dealt with by the National Inspector of Historic
Monuments.
- On
1 August 2000 the National Inspector informed the applicants that the
Sławno District Office (starostwo powiatowe) was the
competent authority to deal with the matter. Furthermore, the
Regional Inspector of Historic Monuments could request the Sławno
District Office to commence expropriation proceedings under sections
33 and 34(1) of the Protection of the Cultural Heritage Act. They
were informed that section 33 of that Act provided that a monument of
particular historic, scientific or artistic value could be acquired
by the State if the public interest so required. The National
Inspector informed the applicants that the former Jewish cemetery in
Rusko belonged to that category of monuments, being one of the few
remnants of Jewish culture in the Middle Pomerania Region. The
applicants were advised to contact the Sławno District Office as
the representative of the State Treasury, whose duty it was to
resolve their problem.
- On
17 October 2000 Darłowo Municipality informed the applicants
that there was no legal basis for the municipality to acquire their
plot or to offer them another plot in exchange. They were further
informed that they could request the Mayor of Sławno District
(Starosta powiatu) to expropriate their land pursuant to the
Protection of the Cultural Heritage Act. A request could also have
been submitted by the Regional Inspector.
- On
26 January 2001 the Koszalin Regional Inspector of Historic Monuments
requested the Mayor of Sławno District to initiate expropriation
proceedings. The Regional Inspector stated that in 1974 the
applicants had bought the property as a construction plot.
Subsequently, following the 1987 listing decision, the applicants had
been prevented from developing their land in any manner. The Regional
Inspector expressed the opinion that the expropriation of the plot
and its ensuing transfer to the Jewish community would be consistent
with the provisions of the 1997 Act on Relations between the State
and the Jewish Community (ustawa o stosunku Państwa do gmin
wyznaniowych żydowskich) and the policy concerning the
Jewish monuments agreed between Poland and Israel.
- On
23 September 2002 the applicants informed the Mayor of Darłowo
that they would be prepared to exchange their plot for a plot
situated in Bobolin or Dąbki.
- On
24 March 2003 Darłowo Municipality requested the Sławno
District Office to provide it with a plot of land which would in turn
enable the municipality to arrange for an exchange of plots with the
applicants.
- On
19 May 2003 the Sławno District Office informed the Mayor of
Darłowo that the State Treasury's Property Resources did not
have plots situated in Bobolin suitable for such an exchange.
However, there was one plot in Dąbki that could be exchanged. By
a letter of 14 July 2003 the Mayor of Darłowo informed the
Sławno District Office that Mr Potomski had refused to exchange
his plot for the plot situated in Dąbki. He further requested
the District Office to initiate expropriation proceedings with a view
to resolving the issue of the applicants' plot.
- On
7 August 2003 the Mayor of Darłowo again requested the Sławno
District Office to commence expropriation proceedings with a view to
resolving the applicants' case. It reminded the District Office that
in accordance with section 6 of the 1997 Land Administration Act the
protection of properties classified as part of the cultural heritage
was in the public interest. The Mayor also noted that the 1987
decision unambiguously excluded any development of the applicants'
plot.
- On
14 August 2003 the Sławno District Office informed the
applicants of the possibility of exchanging their plot of land for a
plot situated in Rusko, the village where they lived. The proposed
plot was designated in the local development plan for housing and
services. They were further informed that in the event of a refusal
on their part the only solution would be the institution of
expropriation proceedings at the request of the Regional Inspector of
Historic Monuments. However, that procedure could be set in motion
only if the Inspector had secured a subsidy from the Governor for the
purpose. Accordingly, the applicants were informed that it was not
possible to specify when their case might be finally resolved.
- By
a letter of 22 August 2003 the applicants refused the exchange,
stating that the proposed plot did not satisfy their expectations.
They expressed their preference for expropriation.
- On
30 September 2003 the Mayor of Sławno District informed the
Regional Inspector that the negotiations concerning the exchange of
plots had failed. In his view, the only solution to the problem
consisted in expropriation of the applicants' property in accordance
with the Land Administration Act 1997, and having regard to its
section 6(5). Under the 1962 Protection of the Cultural Heritage Act
the expropriation could be requested by the regional inspector or the
district Mayor. However, the district Mayor did not have the
necessary funds to pay compensation in the event of expropriation.
Consequently, he informed the Regional Inspector that he could
institute the expropriation proceedings only once the Inspector had
secured an amount corresponding to the appropriate level of
compensation.
- On
an unspecified date the Union of Jewish Communities in Poland
(Związek Gmin Wyznaniowych Żydowskich w RP)
requested the Regulatory Commission (Komisja Regulacyjna ds. Gmin
wyznaniowych żydowskich) to transfer ownership of the
property owned by the applicants to it on the grounds that the land
had formerly been used as a Jewish cemetery. On 30 March 2005
the Commission discontinued the proceedings concerning that
application as the property in question had been owned by private
individuals (the applicants).
- In
April 2005 the Governor of the Zachodniopomorski Region (Wojewoda
Zachodniopomorski) informed the Mayor of Sławno District
that it would not be possible to grant a subsidy with a view to
purchasing the applicants' property. On 14 October 2005 the
Mayor of Sławno District apprised the applicants of that
decision. He informed them that there was no possibility as matters
stood of resolving the issue of their property.
II. RELEVANT LAW
A. The Council of Europe Convention for the Protection
of the Architectural Heritage of Europe, adopted on 3 October 1985
- Poland
signed this Convention on 18 March 2010 but has not yet ratified it.
The relevant parts of the Convention provide:
Article 3
“Each Party undertakes:
1. to take statutory measures to protect the
architectural heritage;
2. within the framework of such measures and
by means specific to each State or region, to make provision for the
protection of monuments, groups of buildings and sites.”
Article 4
“Each Party undertakes:
...
2. to prevent the disfigurement, dilapidation
or demolition of protected properties. To this end, each Party
undertakes to introduce, if it has not already done so, legislation
which:
...
(d) allows compulsory purchase of a protected
property.”
B. Protection of monuments
- At
the material time issues relating to protection of the country's
heritage were regulated by the Protection of the Cultural Heritage
Act of 15 February 1962 (Ustawa o ochronie dóbr
kultury – “the Protection of the Cultural Heritage
Act”). A decision on listing a real property in the register of
historic monuments was taken, in principle, by the Regional Inspector
of Historic Monuments (section 14(1)). Following such a decision no
work could be carried out on the historic monument unless a permit
was granted by the regional inspector (section 21). Section 25 of the
Act imposed various obligations on the owners of listed monuments; in
particular a duty to protect them against any damage.
Section 33 provides, in so far as relevant:
“...ownership of a monument of particular
historic, scientific or artistic value may be acquired by the State
with a view to making it accessible to the general public where the
public interest so requires.”
Section
34 provided that the acquisition of ownership took place at the
request of the district Mayor or the regional inspector, in
accordance with the Land Administration Act 1997.
- On
17 November 2003 the Protection of the Cultural Heritage Act was
repealed and the Protection and Conservation of Monuments Act of
23 July 2003 (Ustawa o ochronie zabytków i opiece nad
zabytkami) came into force. In contrast to the former Act,
section 50(4) of the Protection and Conservation of Monuments Act
provides that immovable monuments may be expropriated at the request
of a regional inspector only where there is a risk of irreversible
damage to the monument.
C. Expropriation of land
- From
29 April 1985 to 1 January 1998 the rules governing the
administration of land held by the State Treasury and the
municipalities were laid down in the Land Administration and
Expropriation Act of 29 April 1985 (“the Land
Administration Act 1985”).
On 1
January 1998 the Land Administration Act 1985 was repealed and the
Land Administration Act of 21 August 1997 (Ustawa o gospodarce
nieruchomościami – “the Land Administration Act
1997”) came into force.
Section
6(5) of the Act, which was introduced by the Protection and
Conservation of Monuments Act, stipulates that the protection of real
properties classified as monuments within the meaning of the
Protection of the Cultural Heritage Act is a public-interest aim.
Under
section 112 of that Act, expropriation consists in taking away, by
virtue of an administrative decision, ownership 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. Section 113(1) stipulates that expropriation can
only be carried out for the benefit of the State Treasury or the
local municipality.
Section
114(1) of the Act provides that the institution of expropriation
proceedings is to be preceded by negotiations on acquisition of the
property under a civil-law contract between the State, represented by
the district Mayor, and the owner. In the framework of those
negotiations the State may propose an alternative property to the
owner.
Section 115(1) of the Act stipulates that expropriation proceedings
for the benefit of the State Treasury are to be instituted of the
latter's own motion. The expropriation proceedings for the benefit of
the local municipality are instituted at the request of the latter.
Only where the request is submitted by the local municipality does
refusal take the form of an administrative decision (decyzja;
section 115(4)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicants complained that they had been prevented from developing
their land following the listing decision of 4 May 1987. They further
complained that the authorities had failed to expropriate their land
or to provide them with an alternative plot on which they could
construct their house as originally intended. They did not invoke any
provision of the Convention.
- In
their observations of 29 March 2010 the applicants further alleged a
breach of Article 13 in that they had been deprived of the right to
an effective remedy in respect of the decisions given in their case.
No expropriation proceedings had been instituted and the applicants
had not received any redress. Their requests concerning the property
had either been redirected to a different authority or had produced
responses citing a lack of financial resources or lack of a legal
basis for resolving the case.
- The
Court considers that the thrust of the applicants' grievances
concerns the interference with the peaceful enjoyment of their
possessions. It is therefore appropriate to examine their complaints
under Article 1 of Protocol No. 1 to the Convention, which reads as
follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
1. Compatibility ratione temporis
- The
Government submitted that the complaint was compatible ratione
temporis only in so far as it concerned facts and decisions after
10 October 1994, the date on which Protocol No. 1 to the
Convention became binding on Poland.
- The
applicants argued that the Government's responsibility was engaged in
the period following 10 October 1994 on account of omissions which
occurred after that date.
- The
Court's jurisdiction ratione temporis covers only the period
after the ratification of the Convention or its Protocols by the
respondent State. From the ratification date onwards, all the State's
alleged acts and omissions must conform to the Convention or its
Protocols and subsequent facts fall within the Court's jurisdiction
even where they are merely extensions of an already existing
situation (see Almeida Garrett, Mascarenhas Falcão and
Others v. Portugal, nos. 29813/96 and 30229/96, §
43, ECHR 2000-I).
- Accordingly,
the Court is competent to examine the facts of the present case for
their compatibility with the Convention only in so far as they
occurred after 10 October 1994, the date of ratification of
Protocol No. 1 by Poland. It may, however, have regard to the facts
prior to ratification inasmuch as they could be considered to have
created a situation extending beyond that date or may be relevant for
the understanding of facts occurring after that date (see Broniowski
v. Poland (dec.) [GC], no. 31443/96, § 74, ECHR 2002-X). The
Court further observes that the applicants' complaint is not directed
against a single measure or decision taken before, or even after, 10
October 1994 but refers to their continued inability to develop their
property or have it expropriated.
2. Exhaustion of domestic remedies
- The
Government claimed that the applicants had not exhausted domestic
remedies as they had failed to lodge an appeal against the Regional
Inspector of Historic Monuments' decision of 4 May 1987 with the
Minister of Culture.
- The
applicants disagreed. They admitted that they had not appealed
against the Inspector's decision but stressed that there had been no
legal grounds for mounting a successful challenge. They had not
contested the fact that the plot had been previously used as a
cemetery and that some tombs had been discovered.
- The Court notes that the Government did not suggest
that the Inspector's decision had been unlawful or indicate on what
grounds it could have been challenged. In the circumstances of the
case, and bearing in mind in particular that the applicants did not
contest the nature of the property as a historical monument, the
Court finds that an appeal would not have resulted in a different
decision. Accordingly, and without prejudice to the question whether
the examination of the Government's plea falls within its temporal
jurisdiction, the Court dismisses the Government's objection.
- Secondly,
the Government pleaded non-exhaustion of domestic remedies since the
applicants had not taken advantage of the possibility offered by the
local authorities of exchanging the plot.
- The
applicants submitted that the first plot located in Dąbki did
not correspond to the value or the attractiveness of their plot. The
plot they had been offered consisted of fields and swamps and could
not be used without restrictions. The applicants considered the
proposal as an inadequate attempt to satisfy their claim. The refusal
to accept the plot was thus fully justified. The applicants could not
be considered to have been obliged to accept any plot merely because
the State did not have other properties at its disposal. Furthermore,
the Government had not provided any valuation of the property in
dispute or the property offered to the applicants, and thus it had
not been possible to objectively assess the offer. In respect of the
second plot, the applicants stated that it was unsatisfactory and
that they could not accept it.
- In
so far as the Government's objection relates to the applicants'
refusal to accept the exchange of plots, the Court observes that this
issue is linked to the Court's assessment of compliance with the
requirements of Article 1 of Protocol No. 1 to the Convention. The
Court accordingly joins this part of the Government's plea of
inadmissibility on the ground of non exhaustion of domestic
remedies to the merits of the case.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The applicants' submissions
- The
applicants argued that they had not been aware that the property in
dispute had been used as a Jewish cemetery. Mr Potomski had come to
Rusko from Germany in 1945 and since his arrival the property at
issue had not been used as a cemetery and the authorities had done
everything possible to eliminate any signs that it had been ever used
for burying the dead. The authorities had taken a decision to close
the cemetery (the fence and the chapel had been dismantled) and the
land had been designated as a building plot (rural housing area).
Even if the applicants had known that the property had been used as a
cemetery, it could not automatically be inferred that it could not be
used for development. In any event, the applicants' knowledge was
irrelevant since what mattered was the designation of the property as
determined in the local development plan. When buying the property,
the applicants had been aware of its designation for rural housing
development. They assumed that between 25 November 1970, when the
local authorities decided to close the cemetery, and the date of
purchase in 1974 the cemetery had already been closed. Furthermore,
the applicants had not known about the Jewish tombstones present on
the site, since at the time of purchase the tombstones had been
covered by trees, shrubs and brushwood.
- The
applicants contested the argument that they had already known in 1974
that it would be impossible to build on the property. They submitted
that in the 1970s and 1980s many cemeteries left by the Germans had
been built over, and the simple fact that properties had been
previously used as cemeteries did not exclude them from development.
From the day on which their property was listed in the heritage
register in 1987, the applicant had been unable to take any action to
develop the property as they would not have obtained the requisite
permit. At the time, they had had investment plans consisting of
building a house together with a locksmith's workshop. The decision
of 4 May 1987 had put an end to those plans.
- The
applicants argued that they had been deprived of the right to make
full use of the property and had not obtained appropriate redress, in
the form of either compensation or an alternative plot. They had been
unable to use the property for the purpose it had been purchased for.
It had been bought “for the construction of a house combined
with a service workshop”, as confirmed in the applicant's
requests of 23 July 1973 and 11 August 1973.
- It
was right for the Government to protect the cultural heritage, but
the applicants should have been provided with just redress. The costs
of protection of the heritage had been borne only by the applicants
and thus an excessive burden had been imposed on them. That state of
affairs had persisted after 10 October 1994, the date relevant for
the purposes of Article 1 of Protocol No. 1.
- The
Government had not instituted expropriation proceedings after 10
October 1994 with a view to resolving the issue and providing redress
to the applicants, and had thus avoided their financial
responsibility for the property repurchase. The fact that no
valuation of the property at issue had been provided indicated that
the aim of the proceedings had not been the genuine settlement of the
case. The authorities' efforts had failed owing to the lack of
resources for repurchase of the property. The applicants argued that
they had undertaken a series of legal measures in order to obtain
appropriate redress, but to no avail.
- The
applicants had a right to expect that a plot offered in exchange
would be fit for purpose and would provide them with adequate
redress, and would not merely constitute an attempt by the Government
to avoid their financial responsibility for protection of the
heritage. The various authorities had shifted responsibility for the
situation between themselves, without securing adequate compensation
to the applicants. The failure to complete the domestic proceedings
had resulted from the lack of financial resources for awarding
compensation or offering a satisfactory alternative property. The
Government bore the responsibility for the failure to expropriate the
land belonging to the applicants, who had expressed their interest in
having the property expropriated and handed over either to the State
or to the Union of Jewish Communities.
2. The Government's submissions
- The
Government admitted that in the instant case there had been
interference with the applicants' right to the peaceful enjoyment of
their possessions. It clearly followed from the domestic courts'
case-law that a decision whereby a property was added to the list of
historic monuments constituted such interference. However, the
interference had been prescribed by law, namely section 14 of the
Protection of the Cultural Heritage Act and had pursued a legitimate
aim (the protection of historic monuments). The grounds for the
listing decision were explained therein and had therefore been known
to the applicants.
- The
Government submitted that both the public authorities and the
applicant had been aware that the property at issue had previously
been used as a Jewish cemetery. In their view, the formal decision on
the closure of the cemetery which had been given on 25 September 1970
merely meant that the cemetery could no longer be used as a burial
place. The applicants had been aware of the decision of 25 September
1970 and it could be assumed that they had been aware of the location
of the Jewish cemetery. Moreover, the current pictures of their plot
clearly showed that there were many remains of Jewish graves on it
and it had to be assumed that they had been visible at the time when
the applicants bought the property. In the light of the above
information there could be no doubt that the applicants had bought an
old Jewish cemetery and that they had been perfectly aware of it. The
applicants had not displayed due diligence when buying the plot and
the Government could not now bear any responsibility for the
decisions taken by the applicants in the 1970s.
- The Government admitted that on 12 September 1973 the
Sławno District National Council had issued a preliminary
decision known as an “information decision” informing the
applicants under what conditions they could construct a house on plot
no. 59. However, owing to the passage of time it was difficult to say
what kind of documents had constituted the basis for the issuing of
the decision. In addition, the decision had been subject to the
fulfilment of certain additional conditions specified in the law. The
applicants had not submitted any documents proving that they had
fulfilled those conditions.
- Furthermore,
the applicants had not taken advantage of the possibility offered by
the authorities to exchange the plot at issue for another plot
offered by the Sławno District Office. They had been informed
that in the event of refusing the second exchange proposal the only
solution would be the expropriation of their property; this, however,
was conditional on the grant of a subsidy by the authorities. The
Government maintained that the applicants had been informed that
because financial resources were limited it was impossible to say
when their case might be resolved. In their view, by refusing the
exchange the applicants had accepted that the expropriation could not
be carried out until such time as the appropriate financial resources
were available; they should therefore bear the consequences of their
decisions.
- The
Government further stressed that according to the notarial deed the
applicants had paid 462 Polish zlotys for the plot. As indicated by
the Central Statistics Office, average remuneration in the year 1974
had amounted to 3,185 Polish zlotys. Hence, the amount paid by the
applicants for their plot amounted to one-fifth of average
remuneration at the relevant time. The Government also stressed that
in the period between the purchase of the property by the applicants
and the date of the listing decision the applicants had not taken any
steps to achieve the purpose for which they had allegedly bought the
plot.
- In
the Government's view, the authorities had done more to improve the
applicants' situation than they had been obliged to. The applicants
had knowingly bought the remains of an old Jewish cemetery and even
in 1974 it had been quite obvious that they would not be able to
build anything on the visible remains of the cemetery. The
authorities had undertaken numerous measures with a view to
exchanging the applicants' plot for another one but their proposals
had been disregarded. In conclusion, the Government argued that the
applicants' complaint was manifestly ill founded or,
alternatively, that there had been no violation of Article 1 of
Protocol No. 1.
3. The Court's assessment
(a) Nature of the interference
- Article 1 of Protocol No. 1, which guarantees the
right to the protection of property, contains three distinct rules:
“the first rule, set out in the first sentence of the first
paragraph, is of a general nature and enunciates the principle of the
peaceful enjoyment of property; the second rule, contained in the
second sentence of the first paragraph, covers deprivation of
possessions and subjects it to certain conditions; the third rule,
stated in the second paragraph, recognises that the Contracting
States are entitled, amongst other things, to control the use of
property in accordance with the general interest ... The three rules
are not, however, 'distinct' in the sense of being unconnected. The
second and third rules are concerned with particular instances of
interference with the right to peaceful enjoyment of property and
should therefore be construed in the light of the general principle
enunciated in the first rule” (see, as a recent authority with
further references, Anheuser-Busch Inc. v. Portugal
[GC], no. 73049/01, § 62, ECHR 2007 ...).
- In the present case the Government admitted that there
had been interference with the applicants' right to the peaceful
enjoyment of their possessions (see paragraph 55 above) and the Court
cannot discern any reason to hold otherwise.
The applicants complained of the effects which stemmed from the
decision of 4 May 1987 listing their property in the register of
historic monuments, and in particular of the effective prohibition on
building a house with a workshop on the property as originally
intended. Furthermore, they alleged that in the period following the
decision at issue the authorities had failed to expropriate the
property or to offer them a suitable property in exchange.
- The Court notes that the 1987 listing decision did not
deprive the applicants of their possessions but subjected the use of
those possessions to significant restrictions; hence, it may be
regarded as a measure to control the use of property (see SCEA
Ferme de Fresnoy v. France (dec.), no. 61093/00, ECHR 2005 XIII
(extracts)). However, the applicants' complaint also relates to the
authorities' prolonged failure to expropriate the property or to
provide them with an alternative property. Having regard to the
different facets of the applicants' complaint, the Court considers
that it should examine the situation complained of under the general
rule established in the first sentence of the first paragraph of
Article 1 of Protocol No. 1 to the Convention (see, mutatis
mutandis, Skibińscy v. Poland, no. 52589/99, §
80, 14 November 2006).
- It was common ground that the interference at issue
had been provided for by law, namely the relevant provisions of the
1962 Protection of the Cultural Heritage Act. Similarly, it was not
disputed that the interference had pursued a legitimate aim, namely
the protection of the country's cultural heritage. The Court
reiterates that the conservation of the cultural heritage and, where
appropriate, its sustainable use, have as their aim, in addition to
the maintenance of a certain quality of life, the preservation of the
historical, cultural and artistic roots of a region and its
inhabitants. As such, they are an essential value, the protection and
promotion of which are incumbent on the public authorities (see SCEA
Ferme de Fresnoy, cited above; Debelianovi v. Bulgaria,
no. 61951/00, § 54, 29 March 2007; and Kozacıoğlu
v. Turkey [GC], no. 2334/03, § 54, ECHR 2009 ...). In
this connection the Court refers to the Convention for the Protection
of the Architectural Heritage of Europe, which sets out tangible
measures, specifically with regard to the architectural heritage (see
paragraph 31 above).
(b) Proportionality of the interference
- Any
interference with the right to the peaceful enjoyment of possessions
must achieve a “fair balance” between the demands of the
general interest of the community and the requirements of the
protection of the individual's fundamental rights (see, among other
authorities, Sporrong and Lönnroth v. Sweden, 23
September 1982, § 69, Series A no. 52). In particular, there
must be a reasonable relationship of proportionality between the
means employed and the aim sought to be realised by any measures
applied by the State, including measures depriving a person of his of
her possessions. In each case involving the alleged violation of that
Article the Court must, therefore, ascertain whether by reason of the
State's action or inaction the person concerned had to bear a
disproportionate and excessive burden (see, amongst other
authorities, The former King of Greece and Others v. Greece
[GC], no. 25701/94, §§ 89 90, ECHR 2000 XII;
Sporrong and Lönnroth, cited above, § 73; Broniowski
v. Poland [GC], no. 31443/96, § 150, ECHR 2004 V;
and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01
and 72552/01, § 93, ECHR 2005 VI).
- In assessing compliance with Article 1 of Protocol No.
1, the Court must make an overall examination of the various
interests in issue, bearing in mind that the Convention is intended
to safeguard rights that are “practical and effective”.
It must look behind appearances and investigate the realities of the
situation complained of. That assessment may involve not only the
relevant compensation terms – if the situation is akin to the
taking of property – but also the conduct of the parties,
including the means employed by the State and their implementation.
In that context, it should be stressed that uncertainty – be it
legislative, administrative or arising from practices applied by the
authorities – is a factor to be taken into account in assessing
the State's conduct. Indeed, where an issue in the general interest
is at stake, it is incumbent on the public authorities to act in good
time, in an appropriate and consistent manner (see Beyeler v.
Italy [GC], no. 33202/96, § §§ 110 in fine,
114 and 120 in fine, ECHR 2000 I; Sovtransavto Holding
v. Ukraine, no. 48553/99, §§ 97-98, ECHR 2002 VII;
Broniowski, cited above, § 151; and Plechanow v.
Poland, no. 22279/04, § 102, 7 July 2009).
- With particular reference to the control of the use of
property and therefore interference with proprietary rights, the
State has a wide margin of discretion as to what is “in
accordance with the general interest”, particularly where
environmental and cultural heritage issues are concerned (see,
mutatis mutandis, Beyeler v. Italy [GC], cited above, §
112; Kozacıoğlu v. Turkey [GC], cited above, §
53; and Yildiz and Others v. Turkey (dec.), no. 37959/04,
12 January 2010). Moreover it must not be assumed that every listing
of property after its purchase by an individual amounts to a
violation of the third rule of Article 1 of Protocol No. 1, or that
once a property is listed the owner is invariably entitled to some
form of compensation (see, mutatis mutandis, J.A. Pye (Oxford)
Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no.
44302/02, § 79, ECHR 2007 X; and Depalle v. France
[GC], no. 34044/02, § 91, ECHR 2010 ...). Property,
including privately owned property, has also a social function which,
given the appropriate circumstances, must be put into the equation to
determine whether the “fair balance” has been struck
between the demands of the general interest of the community and the
individual's fundamental rights. Consideration must be given in
particular to whether the applicant, on acquiring the property, knew
or should have reasonably known about the restrictions on the
property or about possible future restrictions (see Allan Jacobsson
v. Sweden (no. 1), 25 October 1989, §§ 60-61, Series A
no. 163; Łącz v. Poland (dec.), no. 22665/02, 23
June 2009), the existence of legitimate expectations with respect to
the use of the property or acceptance of the risk on purchase (see
Fredin v. Sweden (no. 1), 18 February 1991, § 54,
Series A no. 192), the extent to which the restriction prevented use
of the property (see Katte Klitsche de la Grange v. Italy,
27 October 1994, § 46, Series A no. 293 B; SCEA Ferme de
Fresnoy v. France (dec.), cited above), and the possibility of
challenging the necessity of the restriction (see Phocas
v. France, 23 April 1996, § 60, Reports of
Judgments and Decisions 1996 II; Papastavrou and Others v.
Greece, no. 46372/99, § 37, ECHR 2003 IV).
- The
Government placed emphasis on the fact that the applicants had been
aware that they had bought a former Jewish cemetery and that even at
the time of the transaction they had known that they would not be
able to build on the plot. However, on the basis of the material in
its possession, the Court stresses that the authorities took a formal
decision to close the cemetery in 1970. Subsequently, the plot was
classified as farming land and sold to the applicants on 14 November
1974. The authorities were aware of the applicants' intention to
build a house and workshop on the property, as the applicants had
expressed their intentions in their two requests in 1973. In
addition, on 12 September 1973 the authorities issued a preliminary
decision specifying the conditions attaching to the construction of a
house. In this connection the Court observes that it is not disputed
that the applicants bought farming land with a view to building a
house on it and that the authorities apparently did not object to
that intention at the relevant time. The applicants also submitted
that according to the local development plan in force at the relevant
time plot no. 59 had been designated for rural housing development;
the Government did not contest that argument. Furthermore, it emerges
from the Koszalin Regional Inspector's request to the Mayor of Sławno
District that the authorities considered the applicants to have
bought a building plot (see paragraph 21 above).
- The
Court considers that the main issue in the case concerns the legal
effects on the status of the applicants' property flowing from the
Regional Inspector's decision of 4 May 1987. On the basis of that
decision the applicants' real property was added to the register of
historic monuments, on the grounds that a Jewish cemetery had
formerly been located on the plot. That cemetery was one of the few
remnants of Jewish culture in the Middle Pomerania Region.
Subsequently, the authorities declared that the former cemetery
belonged to the category of monuments which were of particular
historic, scientific or artistic value (see paragraph 19 above).
- The
1987 decision resulted in a number of far-reaching restrictions on
the use of the property by the applicants, as provided by the 1962
Protection of the Cultural Heritage Act and subsequently the 2003
Protection and Conservation of Monuments Act. The applicants were
under an obligation to preserve the historical monument and protect
it from damage. They were prohibited from carrying out any work on
the monument unless they obtained a permit from the Regional
Inspector. The Court notes that since the entire plot at issue was
classified as a historic monument there was no possibility for the
applicants to develop even part of their property (contrast SCEA
Ferme de Fresnoy, cited above). This was confirmed by the
Koszalin Regional Inspector in his letter of 26 January 2001
addressed to the Mayor of Sławno District (see paragraph 21
above).
- In
order to assess whether a fair balance was struck in the case, the
Court needs to examine what measures counterbalancing the
interference with the applicants' right to the peaceful enjoyment of
their possessions were available to the applicants. The Court
considers that in the circumstances of the case the most fitting
measure would have been expropriation with payment of compensation or
offer of a suitable alternative property.
- The
Court notes that the domestic law provided for a particular
arrangement with regard to the expropriation of properties which were
listed and which the domestic authorities considered as monuments of
particular cultural significance. In accordance with sections 33 and
34 of the 1962 Protection of the Cultural Heritage Act, which were in
force until 16 November 2003, a monument of particular historic,
scientific or artistic value could be acquired by the State if the
public interest so required. The expropriation was to be carried out
at the request of the district Mayor or the regional inspector in
accordance with the 1997 Land Administration Act. Thus, the
expropriation could be carried out only at the request of the public
authorities or of their own motion, and the applicants did not have
any formal involvement in that procedure. The applicants' role in the
process was limited to submitting requests to initiate expropriation
proceedings. These requests had no binding effect on the authorities
and the latter enjoyed complete discretion in this regard. The
above-mentioned arrangements were even further restricted with the
entry into force of the Protection and Conservation of Monuments Act
on 17 November 2003, which specified that immovable monuments
could be expropriated at the request of a regional inspector only
where there was a risk of irreversible damage to the monument. Having
regard to the above, the Court finds that as the applicants had no
right to compel the State to carry out the expropriation, their
position vis-à-vis the authorities was clearly
disadvantageous.
- The
first request to expropriate the applicants' property made by the
Regional Inspector of Historic Monuments in 1992 produced no result.
During the period falling within the Court's temporal jurisdiction,
in 2001 the Regional Inspector requested the Mayor of Sławno to
expropriate the applicants' property, apparently to no avail (see
paragraph 21 above). In 2003, following the unsuccessful negotiations
on the exchange of plots, the Mayor of Sławno District informed
the Regional Inspector of Historic Monuments that expropriation
proceedings could be instituted on condition that the Regional
Inspector could secure a subsidy for that purpose. The district Mayor
declared that he did not have sufficient funds to pay compensation to
the applicants and therefore, for practical reasons, decided not to
institute expropriation proceedings. In this connection the Court
reiterates that a lack of funds cannot justify the authorities'
failure to remedy the applicants' situation (see, mutatis
mutandis, Prodan v. Moldova, no. 49806/99, § 61, ECHR
2004 III (extracts); Burdov v. Russia (no. 2),
no. 33509/04, § 70, ECHR 2009 ...; and Polańscy
v. Poland, no. 21700/02, § 75, 7 July 2009).
- The
Court reiterates that the genuine, effective exercise of the right
protected by Article 1 of Protocol No. 1 does not depend merely
on the State's duty not to interfere, but may give rise to positive
obligations (see Öneryıldız v. Turkey [GC],
no. 48939/99, § 134, ECHR 2004-XII; Broniowski,
cited above, § 143; and Plechanow v. Poland, cited
above, § 99). Such positive obligations may entail the
taking of measures necessary to protect the right to property,
particularly where there is a direct link between the measures an
applicant may legitimately expect from the authorities and his
effective enjoyment of his possessions, even in cases involving
litigation between private entities. This means, in particular, that
States are under an obligation to provide a judicial mechanism for
settling effectively property disputes and to ensure compliance of
those mechanisms with the procedural and material safeguards
enshrined in the Convention. This principle applies with all the more
force when it is the State itself which is in dispute with an
individual (see Anheuser-Busch Inc., cited above, § 83,
and Plechanow v. Poland, cited above, § 99).
- In
the context of restrictions on the development of land resulting from
a development plan, the availability of a claim to have the property
purchased by the authorities is a relevant factor to consider (see
Phocas v. France, cited above, § 60). In the present
case, the domestic law did not provide a procedure by which the
applicants could assert before a judicial body their claim for
expropriation and require the authorities to purchase their property
(see, mutatis mutandis, Skibińscy v. Poland, cited
above, §§ 34-39 and 94-95, 14 November 2006,
concerning owners who were threatened with expropriation of their
property at an undetermined point in the future). Consequently, the
Court finds that the applicants were deprived of any means of
compelling the State authorities to expropriate their property (see
Immobiliare Saffi v. Italy [GC], no. 22774/93, § 56,
ECHR 1999 V). In the assessment of the proportionality of
the measures complained of, the lack of such a procedure weighs
considerably against the authorities.
- The
Court observes that the expropriation procedure was regulated by the
1985 Land Administration and Expropriation Act and subsequently by
the 1997 Land Administration Act which came into force on
1 January 1998. Section 114 of the 1997 Land Administration
Act stipulated that the institution of expropriation proceedings
should be preceded by negotiations on acquisition of the property by
agreement between the State and the owner. In the framework of those
negotiations the State could propose an alternative property to the
owner.
- In
this connection, the Court observes that the applicants' first
request to be provided with an alternative plot was made in 1995 to
the Head of the Koszalin District Office, the authority competent in
the matter at the material time. However, the request was to no
avail. In 2002 the applicants expressed their willingness to resolve
the matter by means of an exchange of land. In 2003, seeking to
resolve the situation, the authorities twice offered the applicants
an alternative property. However, the applicants refused both offers,
considering that the plots did not match their expectations.
Specifically, in respect of the first plot the applicants argued that
it did not correspond to the value of their property and consisted of
fields and swamps. The Court notes the applicants' argument that the
Government did not provide a valuation of their property or the two
alternative properties. It does appear that no such valuation was
provided by the Mayor of Sławno District, the competent
authority in the matter of expropriation, an omission which arguably
prevented the applicants from making an objective assessment of the
offers. Furthermore, the Court notes that the domestic law did not
compel them to accept an offer of alternative property even if it
matched in value the original plot.
- More
generally, the Court observes that in the event of a dispute as to
the suitability of a property offered in
lieu by
the authorities in the framework of pre-expropriation
negotiations, a
procedural mechanism should have been available to resolve
such dispute, and thus to ensure that a fair balance was struck
between the
competing interests (see, mutatis mutandis,
Hutten-Czapska
v. Poland
[GC], no. 35014/97, § 221, ECHR 2006 VIII where the
Court noted the lack of any procedure or statutory mechanism enabling
landlords to mitigate or compensate for losses incurred in connection
with the maintenance or repairs of property). In
those circumstances, the Court considers that the applicants could
not have been blamed for refusing both offers, as it appears that
they had no guarantee that their interests would be sufficiently
protected. Having regard to the above, the Court finds that the
Government's objection as to the exhaustion of domestic remedies on
the ground of the applicants' refusal to accept the alternative plots
should be rejected.
- Furthermore,
the Court observes that the interference with the applicants' right
to the peaceful enjoyment of their possessions began on 4 May
1987 and has apparently persisted to the present day. The
considerable length of time for which the applicants have had to put
up with the interference at issue is another element in the Court's
assessment of the proportionality of the measures complained of. In
addition, the applicants' situation was compounded by the state of
uncertainty in which they found themselves, in view of the continued
impossibility of developing their property or having it expropriated.
- Having
regard to all the foregoing factors, the Court finds that the fair
balance between the demands of the general interest of the community
and the requirements of the protection of the right of property was
upset and that the applicants had to bear an excessive burden.
There
has accordingly been a violation of Article 1 of Protocol No. 1
to the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- With
regard to pecuniary damage, the applicants claimed 10,000 Polish
zlotys (PLN) per year since 1987, the year in which the authorities
had decided to list their property in the register of monuments (in
total 230,000 PLN). The estimated amount consisted of possible
benefits that could have been obtained from the property if it had
been turned into a locksmith's workshop as the applicants had
originally intended. Currently, in view of their age, further
benefits could have been obtained from leasing the land or using the
property for residential purposes.
- The
applicants also claimed 100,000 PLN in respect of non pecuniary
damage on account of the distress they had suffered because of the
consideration of their case over many years. In this regard they
referred to their advanced age, their loss of trust in the
authorities and the absence of effective procedures in their case.
- The
Government, having argued that the applicants' complaints were
manifestly ill-founded or, alternatively, that there had been no
violation, submitted that their claims in respect of both heads of
damage were irrelevant.
- In
the circumstances of the case and having regard to the parties'
submissions, the Court considers that the question of the application
of Article 41 of the Convention as regards pecuniary and
non-pecuniary damage is not ready for decision and reserves it, due
regard being had to the possibility that an agreement between the
respondent State and the applicants may be reached (Rule 75 § 1
of the Rules of Court).
B. Costs and expenses
- The
applicants were paid EUR 850 in legal aid by the Council of Europe.
They did not file a claim for costs and expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government's preliminary
objection regarding the applicants' refusal to accept alternative
plots and declares the complaint under Article 1 of Protocol
No. 1 to the Convention admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention and dismisses the
above mentioned objection;
- Holds that as far as any pecuniary and
non-pecuniary damage is concerned, the question of the application of
Article 41 is not ready for decision and accordingly,
(a) reserves
the said question;
(b) invites
the Government and the applicants to submit, within six months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written
observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 29 March 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
