AS TO THE ADMISSIBILITY OF
Application No. 31491/96
by Kazimierz SWAT
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 May 1995 by
Kazimierz SWAT against Poland and registered on 15 May 1996 under file
No. 31491/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Polish citizen born in 1948, is a farmer,
residing in Slupsk.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
He owns a plot of land in Slupsk, located at the outskirts of the
town.
On 30 March 1989 the Slupsk Municipal Office informed the
applicant's mother that according to the local master plan a road would
be built on the plot No. 29 at Szczecinska Street.
On 4 June 1989 the applicant's mother requested that the plot
No. 52, located at Szczecinska Street in Slupsk, of which she was the
owner, was reclassified from agricultural to construction plot.
On 4 June 1989 the Slupsk Municipal Office informed the
applicant's mother that in order for agricultural property to be used
for non-agricultural purposes a permission of the Minister of
Agriculture was necessary. As no such permission had been issued with
regard to his plot, it could not be used for any other purposes than
agricultural and in particular not for building a house on it.
On 10 December 1990 the applicant's mother donated the plot
No. 52 to the applicant and his sister.
On 9 August 1993 the applicant requested the Slupsk Municipal
Office to assign him another plot to replace the plot concerned, in
view of its function under the local master plan.
On 11 January 1994 the applicant complained to the Ombudsman that
he could not use his plot. Due to its function under the local plan
it had lost any commercial value and could de facto not be sold. The
municipality had refused to buy it from the applicant, even though it
was uncertain when the construction would begin, and his efforts to
obtain another plot in exchange proved fruitless. He complained that
his plot should not serve as a reserve property for the municipality
and that his property right had become economically meaningless.
In a letter of 11 March 1994 the Ombudsman office informed the
applicant that the general problem of restriction on property rights
of persons in a situation identical to that of the applicant had been
submitted to the attention of the Minister of Construction on
6 November 1994. The Ombudsman had drawn the Minister's attention to
the fact that such situation amounted to a breach of property rights
and proposed that new legislation in this respect be adopted. This
legislation would oblige local authorities either to buy plots
concerned or to replace those plots by other plots, within six months
from the date on which a relevant request was submitted. This
legislation was being discussed by the Parliament (Sejm), but no
decision had yet been taken.
In a letter of 11 April 1994 the Municipal Office, in reply to
the applicant's letter of 9 August 1993, informed him that the
Municipal Council had approved the local master plan according to which
the plot No. 52 remained designed for road construction. Until the
beginning of the works, the plot could be used in the manner in which
it had been hitherto used.
On 1 and 10 May 1994 the applicant requested the Slupsk Municipal
Office to give him another plot of land to replace his "frozen" plot.
He referred to the Ombudsman's letter of 11 March 1994. He submitted
that in view of the fact that his property rights were breached he
requested that he be assigned another plot within six months from the
date of his letter, as envisaged in the new regulations to be adopted.
This letter apparently remained unanswered.
In reply to the applicant's request of 26 March 1997, on
3 April 1997 the Slupsk Municipal Office informed him that under the
local master plan his plot remained assigned for road construction.
On 26 March 1997 the applicant requested the Slupsk Municipal
Office to grant him compensation.
Relevant domestic law
Under Article 36 of the Law on Local Planning, adopted on
7 July 1994, the local authorities are obliged either to buy plots
designed for expropriation under local master plans which are not being
realised, or to replace those plots by other plots within six months
from the date on which a relevant request was submitted, or to award
compensation for the damage caused by fact that the plot is designed
for future expropriation. Under Article 36 of the Act, this obligation
applies only to the plans which were adopted before the Act entered
into force.
COMPLAINTS
The applicant complains in substance under Article 1 of Protocol
No. 1 to the Convention that his right to peaceful enjoyment of
property is breached by the fact that he cannot use his plot for
construction purposes, that it lost any commercial value due to its
being designed for road construction under the local master plan and
that the municipality does not comply with his request to replace it
by another plot.
THE LAW
The applicant complains in substance under Article 1 of Protocol
No. 1 (P1-1) to the Convention that his right to peaceful enjoyment of
property is breached.
However, the Commission is not required to decide whether or not
the facts submitted by the applicant in support of his complaint
disclose any appearance of a violation of the Convention as Article 26
(Art. 26) of the Convention provides that the Commission "may only deal
with a matter after all domestic remedies have been exhausted".
In the present case the applicant has not shown that any
administrative decisions were pronounced as regards compensation claims
under Article 36 of the Law on Local Planning, against which the
applicant could ultimately lodge an appeal with the Supreme
Administrative Court.
It follows that the application must be rejected for non-
exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3)
of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy