FIRST SECTION
DECISION
Application no. 66094/13
Małgorzata GOGOŁEK
against Poland
The European Court of Human Rights (First Section), sitting on 22 October 2019 as a Committee composed of:
Pere Pastor Vilanova, President,
Krzysztof Wojtyczek,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 7 October 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Małgorzata Gogołek, is a Polish national who was born in 1956 and lives in Warsaw. She was represented before the Court by Mr M. Namura-Ochalski, a lawyer practising in Warsaw.
2. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.Background to the case
4. The applicant’s father owned a plot of land situated in Warsaw. On 5 December 1961 a planning application that he had submitted for the construction of a house was approved by the local authority, with certain conditions. Subsequently, in March 1962 he was informed by the Board of the Warsaw-Mokotów National Council that, under the conditions attached to the planning permission, part of the plot in question – a narrow 2.5 ‑ metre-wide strip (with a surface area of 49 square meters) would be taken over in order to widen the adjacent road. The authority explained that the main plot was too big under the relevant provisions relating to the construction of individual houses and that the existing fencing was moreover not placed within the plot’s boundary. On an unknown later date, a pavement, road signs and traffic lights were built on part of the plot. During the winters the road was cleared of snow by the municipal authorities.
5. In 1999 the applicant inherited the land in question from her parents. In 2000 she sold the main plot (with a surface area of 1,410 square meters) and remained the owner of plot no. 56/8 (measuring 49 square meters).Proceedings before the administrative authorities
6. On 4 January 2005 the applicant lodged a request with the Mazowiecki Governor (Wojewoda Mazowiecki) seeking confirmation that plot no. 56/8, which had formed part of Radosna Street, had been taken over by the Warsaw-Wilanów Municipality pursuant to section 73(1) of the Public Administration Reform (Introductory Provisions) Act of 13 October 1998 (“the 1998 Act”) (see paragraph 13 below).
7. On 27 October 2010 the Governor refused the applicant’s request. The Governor held that the plot in question formed part of the road, which was not a “public road” within the meaning of the relevant provisions on public roads (see paragraph 15 below). Under the 1998 Act, only plots used as public roads that were not owned by the State Treasury or municipalities were to have been expropriated ex lege on 1 January 1999, and only in respect of such plots could compensation be sought. The road in question had not been listed as a public road in any of the resolutions issued by the local authorities. Therefore, the first condition for acquiring ownership ex lege had not been fulfilled; accordingly, the municipality had not acquired ownership of the road.
8. On 13 December 2010 the Minister of Infrastructure upheld the Governor’s decision. The Minster stressed that Radosna Street had not been listed as a public road in any of the resolutions issued by the local authorities and that the formal condition for acquiring ownership of the applicant’s plot ex lege had therefore not been met.
9. The applicant appealed. She submitted that she had suffered damage on account of the fact that the local authority had consistently refused to acquire the ownership of her plot and to pay her compensation in that respect.
10. On 8 June 2011 the Warsaw Regional Administrative Court dismissed the applicant’s appeal. The court reiterated that pursuant to section 73(1) of the 1998 Act, only plots designated as public roads that had not been owned by the State Treasury or municipalities were to be expropriated ex lege on 1 January 1999. It furthermore held that Radosna Street, which comprised the applicant’s plot, was not a public road within the meaning of the relevant provisions on public roads. The court concluded that if the road on which the plot was situated served the general public, the applicant might consider the problem in the light of the Bugajny judgment, even though that judgment had been given in different legal and factual circumstances (see Bugajny and Others v. Poland, no. 22531/05, 6 November 2007).
11. A cassation appeal lodged by the applicant was dismissed by the Supreme Administrative Court on 19 April 2013. The court endorsed the findings of the Regional Court and of the administrative authorities. It held that section 73(1) of the 1998 Act should be interpreted narrowly, given that it concerned expropriation. For that reason it was not possible to interpret the term “public road” widely to mean any road serving the general public. That term had to be understood strictly, as defined by the provisions of the 1985 Act on public roads (see below). Lastly, the court confirmed that there had been a procedural impropriety in the present case; however, it deemed that the applicant should have made use of civil law remedies, as more appropriate in the circumstances of her case.Relevant domestic law and practicePublic Administration Reform (Introductory Provisions) Act and the courts’ case law
12. The Public Administration Reform of 13 October 1998 (“the 1998 Act”) (Przepisy wprowadzające ustawy reformujące administrację publiczną) regulates the legal status of land taken over in the past for the purposes of the construction of public roads without a formal transfer of ownership of such land.
13. Section 73(1) of the Act conferred ex lege on the State Treasury or on the relevant local municipality ownership of such land with effect from 1 January 1999 on the basis of de facto possession. It furthermore stipulated that former owners had a right to compensation. Under section 73(4), former owners could lodge compensation claims with the administrative authorities between 1 January 2001 and 31 December 2005. Section 73(5) specified how that compensation was to be determined.
14. In its judgment of 14 March 2000 (P 5/99) the Constitutional Court declared sections 73(1) and 73(5) of the 1998 Act compatible with the Polish Constitution and with Article 1 of Protocol No. 1 to the Convention.Public Roads
15. The Act on Public Roads (ustawa o drogach publicznch) of 21 March 1985 contains a legal definition of a “public road”. Under section 1 of that Act, the term “public road” means any road belonging to one of the categories specified in section 2 that can be used by the general public. The relevant categories of public roads are as follows: national roads, regional roads, district roads and municipal roads, as well as streets running between such roads. The relevant administrative authority has authority to include a road under one of the categories of public roads. In the case of municipal roads, a municipal council (“rada gminy”) issues a resolution in that regard, after obtaining the opinion of the relevant district board (“zarząd powiatu”).The Civil Code
(a) Restitution of property and claims for non-contractual use
16. Under Article 222 of the Civil Code:
Ҥ1 The owner may demand restitution of his or her property from any person who has actual control of it, unless that person has an effective right to that property.
§2 The owner has the right to claim the restitution of his or her lawful position and [to claim] the cessation of infringements against a person who infringes his or her ownership other than by depriving him of actual control of the property in question.”
17. There is no limitation period for claims under Article 222 of the Civil Code if they relate to immovable property (Article 223).
18. In addition, an owner or perpetual lessee of land is also entitled to seek compensation from a person who is in possession of his or her property in bad faith, in the form of an action for compensation for non-contractual use of land (bezumowne korzystanie z nieruchomości) under Article 225, in conjunction with Article 224 of the Civil Code. The limitation period for such claims is ten years (Article 118 of the Civil Code) or, if the item of property in question was returned to the owner, one year following the return (Article 229).
(b) Liability in tort
19. Article 417 § 1 of the Civil Code lays down a general rule on State liability for damage caused by the public authority. This provision, in so far as relevant, reads as follows:
“The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”Case-law of the domestic courts
20. After the entry into force of the 1998 Act, domestic courts delivered rulings concerning the interpretation of the Act’s provisions. In particular, the courts dealt with the issue of the concurrence of claims under the 1998 Act and the Civil Code. In a resolution of 26 May 2006, (III CZP 19/05), adopted by a bench of seven judges, the Supreme Court held that a ruling under section 73 of the 1998 Act did not preclude a former owner from seeking compensation for non-contractual use of land before 1 January 1999. The Supreme Court furthermore clarified that in order to seek compensation for non-contractual use of land, a road that had been de facto taken over by a municipality did not have to have the status of a public road pursuant to the relevant provisions but that it was sufficient that it was accessible to the general public (judgment of 11 July 2012 II CSK 709/11).
21. In a string of follow-up judgments, the domestic courts have been allowing claims under Articles 224 § 2 in conjunction with Article 225 of the Civil Code for compensation for non-contractual use of land (compare the Warsaw Court of Appeal judgments of 2 October 2008 (I Aca 437/08), 9 April 2013 (I Aca 1225/12) and 21 April 2017 (I Aca 268/16), and the judgment of the Poznan Court of Appeal of 28 August 2015 (I Aca 711/14)).
COMPLAINT
22. The applicant complained under Article 1 of Protocol No 1 to the Convention that the authorities’ refusal to take over the ownership of the plot in question and to pay her compensation in that respect had imposed an excessive individual burden on her.
THE LAW
23. The applicant complained of a breach of her property rights on account of the authorities’ refusal to formally expropriate her property and pay her compensation in that respect. She relied on Article 1 of Protocol No. 1 to the Convention, which reads:
“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.”The Government’s submissions
24. The Government submitted that the application was incompatible ratione temporis with the provisions of the Convention. They noted that the applicant’s legal predecessors had lost possession of the plot before the Convention had entered into force in respect of Poland and submitted that the applicant was in fact seeking redress for an interference that did not fall under the Court’s temporal jurisdiction. The Government also stressed that the applicant’s father had been informed in 1962 that part of his property would be used to widen the adjacent road. However, he had never contested that decision, and nor had he undertaken any legal actions in that respect.
25. The Government furthermore submitted that the applicant had failed to exhaust the relevant domestic remedies. They noted that the Supreme Administrative Court in its judgment of 19 April 2013 had informed the applicant that she should have sought recourse in civil-law remedies. They submitted that the applicant could have lodged a claim under Articles 222 and 224 taken in conjunction with Article 225 of the Civil Code in order to seek the restitution of her land and compensation for the non-contractual use of that land. In that respect they referred to the Supreme Court’s resolution of 26 May 2006 (III CZP 19/05) (see paragraph 20 above). Lastly, the Government maintained that the applicant could have also claimed compensation under Article 417 of the Civil Code.The applicant’s submissions
26. The applicant disagreed with the Government’s submissions. She replied that her case concerned a continuing violation of Article 1 of Protocol No. 1 to the Convention. She stressed that she had made use of all the available domestic remedies. She had appealed against the first-instance decision and had subsequently lodged appeals with both the Regional and Supreme Administrative Courts. In particular, the Warsaw Regional Administrative Court in its judgment of 8 June 2011 had noted that the present case was similar to the case of Bugajny v. Poland, and for that reason she had applied to the Court.The Court’s assessment
27. The Court does not need to rule separately on each of the Government’s objections, as the present application is in any event inadmissible for the following reasons.
28. The Government maintained that the applicant should have used the available domestic remedies – namely, she should have lodged a claim under Articles 222 and 224 taken in conjunction with Article 225 of the Civil Code in order to seek restitution of her land and compensation for the non‑contractual use of that land (see paragraph 25 above). The applicant did not comment on that particular legal remedy.
29. The Court reiterates that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the Court for their acts before they have had an opportunity to put matters right through their own legal system. Recourse should therefore be had by an applicant to remedies that are available and sufficient to afford redress in respect of the breaches alleged. As a consequence, complaints intended to be made before the Court should have first been made to the appropriate domestic body (at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law), and any procedural means that might prevent a breach of the Convention should have been used (see, among many other authorities, Cardot v. France, 19 March 1991, § 34, Series A no. 200, and Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996‑IV).
30. As indicated by the Government, it was possible for the applicant to bring a claim under Articles 222 and 224 in conjunction with Article 225 of the Civil Code in order to seek the restitution of her land and to claim compensation for the non-contractual use of that land. The applicant has not alleged that those remedies were inadequate or ineffective in her case. In that regard, the Court observes that the domestic courts in a string of judgments have confirmed that in addition to lodging claims under the 1998 Act, owners whose land was de facto taken over for the purpose of road construction could claim compensation for non-contractual use of land under the relevant provisions of the Civil Code (see paragraphs 20‑21 above). Most importantly, the Supreme Administrative Court in its judgment of 19 April 2013 explicitly pointed out to the applicant that civil law remedies were more appropriate in her case (see paragraph 11 above). The Court sees no reason to doubt their effectiveness. Even so, the applicant did not avail herself of those remedies.
31. In view of the above, and having regard to the subsidiary character of the Convention machinery, the Court does not find that there were any special reasons for dispensing the applicant from the requirement to exhaust domestic remedies.
32. In consequence, the Court finds that it would be inconsistent with the subsidiarity principle to accept the application for substantive examination without requiring the applicant first to submit the substance of her Convention claim to the domestic authorities.
33. It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 November 2019.
Renata DegenerPere Pastor Vilanova
Deputy RegistrarPresident
Full & Egal Universal Law Academy