Last Updated on April 24, 2019 by LawEuro
Communicated on 14 March 2019
FIRST SECTION
Application no. 55853/15
Ewa SIDOR
against Poland
lodged on 2 November 2015
STATEMENT OF FACTS
1. The applicant, Ms EwaSidor, is a Polish national who was born in 1965 and lives in Lublin.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. First expropriation proceedings
3. The applicant and her husband were owners of plots of land in Lublin, which were designated in the local development plan of 17 March 2005 for construction of an express road (plots nos. 1005/3, with a house located on it, and 1005/4) and a district road (plots nos. 1005/5 and 1005/6).
4. On 3 October 2005 the Lubelski Region Governor issued a decision about the location of the express road on the applicant’s property, on the basis of the National Roads (Special Rules of Preparation and Implementation of Investment) Act of 10 April 2003 (hereinafter “the Roads Act”).
5. In accordance with the Act the amount of compensation for expropriated property was determined according to the state of the property on the date of issuing the decision.
6. In 2008 the negotiation in respect of the acquisition of the applicant’s property by the General Agency of Public Roads and Motorways (“the Agency”) commenced. However, the applicant and the Agency failed to reach an agreement regarding the price. The applicant questioned the expert opinion in respect of the surface area of her house and its value.
7. On 2 March 2009 the applicant complained of the inactivity of the Agency regarding the negotiation and requested that an offer be made.
8. On 3 April 2009 the Agency informed the applicant that negotiations were carried out on the basis of the provisions of the Civil Code and therefore the parties to negotiations were not bound by any time-limits.
9. On 21 December 2010 the Agency applied to the Governor for institution of the expropriation proceedings.
10. On 18 January 2011 the Governor instituted expropriation proceedings in respect of plots nos. 1005/3 and 1005/4.
11. On 21 May 2011 the Agency applied to the Governor for discontinuation of the expropriation proceedings.
12. On 31 May 2011 Governor discontinued the proceedings and his decision was upheld on 26 September 2011 by the decision of the Minister of Infrastructure. The administrative authorities held that the proceedings had been initiated on the motion of the Agency and that following its withdrawal the proceedings had become devoid of purpose.
13. On 25 May 2012 Warsaw Regional Administrative Court dismissed the applicant’s appeal. On 13 August 2013 the Supreme Administrative Court quashed the Regional Court’s decision, finding that the application for discontinuation of the proceedings had been signed by an employee who had not had the proper authorisation to represent the Agency. On 9 January 2014 the case was returned to the Governor for reconsideration. The proceedings appear to be pending.
2. Second expropriation proceedings
14. On 14 July 2011 Director of the Agency applied to the Lubelski Region Governor for a decision authorising the implementation of the road investment (“the ZRID decision”). This decision given on the basis of the 2008 amendment to the Roads Act replaced several separate administrative procedures and determined in one administrative act the location of the road, the surveying division, construction design and also resulted in the acquisition of a real property by virtue of the Law by the State Treasury.
15. On 5 December 2011 the Governor issued the requested decision with a clause of immediate enforceability. The decision concerned, inter alia, the applicant’s plots nos. 1005/3, 1005/4, 1005/5 and 1005/6.
16. On 4 April 2012 the Governor offered the applicant temporary accommodation in a flat located in Lublin; however the applicant objected to the offer. She submitted that the accommodation in a flat did not meet the standard of their house and that it did not provide them with sufficient space.
17. On 24 April 2012 the applicant and her husband were evicted from their property. Eventually, the applicant rented a house and unsuccessfully applied to the Agency for reimbursement of the rent.
18. On 31 May 2012 the Minister partly amended the Governor’s decision of 5 December 2011.
19. On 11 January 2013 the Warsaw Regional Administrative Court annulled the ministerial decision of 31 May 2012 and returned the case to the Minister for reconsideration.
20. On 7 February 2014 the Minister again partly amended the Governor’s decision of 5 December 2011 in respect of certain plots but maintained the decision in respect of the applicant’s property.
21. On 9 September 2014 the Warsaw Regional Administrative Court dismissed an appeal by the applicant. On 15 April 2015 the Supreme Administrative Court dismissed a cassation appeal lodged by the applicant. The domestic courts found that the authorities had taken into account the public interest, environmental requirements, the protection of the interests of third parties; that the authorities had analysed the alternative plans in respect of the road and had chosen the best option from an environmental and economic point of view; and that the applicant had been granted adequate compensation. The domestic courts held that the public road investment had been in accordance with the law. Moreover, the courts – referring to the applicant arguments – held that the Minister had not breached the principle of res judicata as the subject matter of the decision of 7 February 2014 had not been the same as the subject matter of the decision of 3 October 2005.
3. Compensation proceedings
22. On 16 August 2012 the applicant complained about the inactivity of the Governor in respect of compensation for his land acquired by the Agency by virtue of the decision of 5 December 2011.
23. On 4 October 2012 the Lubelski Region Governor fixed the amount of compensation at 1,086,000 Polish zlotys (271,500 euros). The applicant contested as to low the valuation of her property made by an expert commissioned by the Governor and alleged that the Governor had failed to take into consideration a valuation made by another expert.
24. On 8 November 2012 Minister found the complaint of 16 August 2012 unjustified.
25. On 25 February 2013 the Minister upheld the Governor’s decision. On 18 March 2013 the applicant received compensation however, she challenged the amount of compensation before the administrative courts.
26. On 18 December 2013 the Warsaw Regional Administrative Court annulled the ministerial decisions. On 10 February 2014 the Minister lodged a cassation appeal.
27. On 12 October 2015 the Supreme Administrative Court dismissed a complaint lodged by the applicant concerning the excessive length of proceedings.
28. Following an appeal by the Minister, on 9 December 2015 the Supreme Administrative Court quashed the Warsaw Administrative Court’s judgment of 18 December 2013 and dismissed the applicant’s appeal.
B. Relevant domestic law and practice
29. On 10 April 2003 the National Roads (Special Rules of Preparation and Implementation of Investment) Act was enacted. It entered into force on 25 May 2003. It has been amended several times since.
30. Section 18(1) of the Roads Act provided that the amount of compensation for expropriated property was determined according to its state on the date of issuing the decision authorising the location of a road investment and its market value established on the date of the expropriation decision
31. On 10 September 2008 the amendment to the Roads Act, came into force. The main change was the introduction of a new type of decision authorising the execution of road investment (“the ZRID decision”).
32. The amended section 12(4b) of the Roads Act provided that a decision granting compensation for expropriated property should be issued within thirty days of the date on which the ZRID decision became final.
33. The amended section 18(1) of the Roads Act provided that the amount of compensation for expropriated property was determined according to its state on the date of issuing of the ZRID decision and its current market value established on the date of the compensation decision.
COMPLAINTS
34. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complains that after the issuance of the decision on the location of the road on 3 October 2005 she was not able to develop her property and no compensation was granted to her in this connection. In her view, the length of the expropriation proceedings and the restrictions on the use of her land had amounted to an unjustified infringement of her right to the peaceful enjoyment of her possessions.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s peaceful enjoyment of her possessions or a control of the use of her property, within the meaning of Article 1 of Protocol No. 1?
2. If so, did that interference or control of use comply with the requirements of Article 1 of Protocol No. 1?
Reference is made to:
(a) the delay between the date of the decision on the location of the public road (3 October 2005) and the dates of decisions given in respect of the expropriation of the applicant’s property and compensation for it.
(b) restrictions on the applicant’s right to her property following the decision of 3 October 2005.
(c) section 18(1) of the Roads Act of 10 April 2003 determining an amount of compensation for expropriated property according to the state of the property on the date of issuing the decision in respect of the location of the public road (3 October 2005), regardless of the date of expropriation decision.
3. In particular, was an excessive individual burden imposed on the applicant (see ImmobiliareSaffi v. Italy [GC], no. 22774/93, § 59, ECHR 1999‑V)?
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