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FIRST SECTION
DECISION
Application no. 8766/11
Jan RYBCZYŃSKI and Urszula RYBCZYŃSKA
against Poland
The European Court of Human Rights (First Section), sitting on 16 October 2018 as a Committee composed of:
Ksenija Turković, President,
Krzysztof Wojtyczek,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 26 January 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Jan Rybczyński and Ms Urszula Rybczyńska, are Polish nationals who were born in 1944 and 1947 respectively and live in Sobótka. They were represented before the Court by Mr C. Bakuń, a lawyer practising in Bielany Wrocławskie.
2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Mrs J. Chrzanowska and subsequently by Mr J. Sobczak, the Agent, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
4. On 12 November 2001 the Sobótka City Council (Rada Miejska) adopted a resolution on changes to the local development plan concerning the area of the applicants’ property. Part of that area was marked as “KD”‑internal access roads (niepubliczne ulice dojazdowe) and designated for the construction of internal access roads. The applicants did not appeal against this resolution and it became final.
5. On 25 March 2002 and 2 December 2004 the Sobótka Municipality gave decisions approving the division of land owned by the applicants into smaller plots. Certain plots were designated for the construction of a housing estate and other plots were to be used as roads, marked on the division plan as “KD”. The decision of 25 March 2002 explicitly specified the plots which were to be designated as roads and that these roads were internal access roads only. The division was effected at the applicants’ request.
6. Both decisions were served on the applicants, who were informed that they could appeal against them within 14 days from the date of service. However, the applicants did not appeal.
2. The applicants’ request for expropriation
7. On 3 June 2008 the applicants requested the Sobótka Municipality to take over ownership of the “KD” plots. They referred to the Court’s judgment in the case of Bugajny and Others v. Poland (no. 22531/05, 6 November 2007) and argued that internal access roads were connected to the network of public roads. Therefore they should have been formally expropriated and paid compensation. They claimed that they did not use the roads and could not obtain any financial compensation from the owners of the houses on the estate or other third parties in respect of the maintenance costs they had to bear.
8. In a letter of 21 September 2009 the Sobótka Municipality informed the applicants that it was not possible for the local authorities to take over ownership of plots nos. 4/11, 4/33 and 4/35 (marked in the local development plan as “internal access roads”). It further confirmed that it was under no obligation to take over and maintain internal access roads. With regard to plots nos. 4/12 and 4/13 the municipality stated that it might consider buying them from the applicants in order to widen the existing Morelowa Street.
9. On 15 December 2009 the applicants asked the municipality to adopt a resolution reclassifying the internal roads in question as public roads. They requested that the local land development plan be amended in such a way as to have these roads reclassified as municipal roads owned by the municipality.
10. In a letter of 14 January 2010 the Sobótka Municipality refused their request on the ground that the roads concerned were internal roads and should not to be regarded as public roads within the meaning of the Land Administration Act (see paragraph 15 below).The municipality again stressed that it was not obliged by law to reclassify them as municipal roads or to take over ownership of them.
3. Proceedings concerning the municipality’s alleged failure to act
11. On 15 March 2010 the applicants lodged a complaint alleging a failure to act on the part of the municipality in that it had failed to amend the local development plan and to adopt a resolution reclassifying the “KD” plots of land as public roads.
12. On 27 May 2010 the Regional Administrative Court in Wrocław gave a decision and rejected the applicants’ complaint as inadmissible in law. The court held that no provision of domestic law obliged the local municipalities either to adopt local land development plans or to amend the existing ones, including by reclassifying the roads. Hence, the complaint about the authorities’ failure to act had to be rejected on procedural grounds.
13. The applicants lodged a cassation appeal against this judgment with the Supreme Administrative Court, essentially reiterating their previous arguments.
14. On 1 September 2010 the Supreme Administrative Court gave a decision and dismissed the applicants’ cassation appeal, sharing the views of the first‑instance court. The court confirmed that no domestic legal provision obliged a local municipality to amend the existing local development plan in order to reclassify internal roads as public roads. Therefore, the complaint about the municipality’s failure to act was inadmissible in law and the Regional Court had correctly rejected it on procedural grounds.
B. Relevant domestic law and practice
15. The relevant provisions of the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the 1997 Land Administration Act”) are set out in the case of Bugajny and Others (cited above, §§ 32-40).
COMPLAINT
16. The applicants complained under Article 1 of Protocol No. to the Convention that the municipality’s refusal to take over ownership of the “KD” plots of land used as internal access roads had imposed an excessive individual burden on them.
THE LAW
A. Preliminary objections
1. The Government’s submissions.
17. The Government maintained that the application had been lodged in breach of the six-month time-limit provided for by Article 35 § 1 of the Convention. They referred to the fact that the decisions on the division of the applicants’ property had been given on 25 March 2002 and 2 December 2004, that is, many years before the date on which the present application was lodged with the Court (26 January 2011). In addition, the Sobótka City Council resolution on amendments to the local development plan had become final in 2001.
18. In this regard the Government stated that the applicants’ request for the municipality to take the initiative of adopting a resolution reclassifying the internal roads as public roads, and their subsequent complaints of failure to act lodged with the administrative courts, had not been effective remedies in the present case.
19. The Government maintained that the applicants’ complaint concerning the municipality’s alleged failure to act had lacked any legal basis. In that regard they noted that the six-month period ran from the final decision given in the process of exhaustion of domestic remedies.
2. The applicants’ submissions
20. The applicants replied that their application did not concern the provisions of the local development plan but the Sobótka Municipality’s refusal to take over the roads in question and the fact that they were designated as internal rather than public roads. In that regard the applicants submitted that they had exhausted all available remedies and had applied to the Court within six months from the last decision given in their case, namely the Supreme Administrative Court’s decision.
B. The Court’s assessment
21. Article 35 § 1 of the Convention reads as follows:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
22. 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.
23. The Court observes that the Government raised an objection in relation to compliance with the six-month time-limit. The applicants argued that they had complied with the six‑month rule, as they had made use of all available remedies and the proceedings had ultimately been terminated by the decision of the Supreme Administrative Court of 1September 2010 (see paragraph 17 and 20 above).
24. In this respect the Court reiterates its established case-law relating to the requirements of exhaustion of domestic remedies and the six-month period, which are closely intertwined. Thus where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Younger v. the United Kingdom (dec.), no. 57420/00, ECHR 2003-I). However, the obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible (see Sofri and Others v. Italy (dec.), no. 37235/97, ECHR 2003-VIII). In particular, for a remedy to be effective, it must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56681/00, § 46, ECHR 2006‑II). Where an applicant has tried a remedy that the Court considers ineffective, the time taken to do so will not interrupt the running of the six‑month time‑limit, which may lead to the application being rejected as out of time (see Rezgui v. France (dec.), no. 49859/99, ECHR 2000‑XI,).
25. The Court observes that the proceedings relating to the applicants’ request for the municipality to take over ownership of the “KD” plots were terminated on 14 January 2010 (see paragraph 10 above).It will further leave open the question whether these proceedings could be considered an effective remedy (compare and contrast Bugajny, cited above, §§ 6‑19) because, for the following reasons, it considers that the application was in any event introduced out of time.
26. The Court notes that following the municipality’s refusal to take over ownership of the plots in question, the applicants instituted another set of proceedings alleging a failure to act on the part of the municipality (see paragraph 11 above). However, their application was rejected at two levels of jurisdiction as inadmissible in law, with reference to the relevant domestic provisions (see paragraphs 12 and 14 above). In those circumstances, the Court does not consider that recourse to those proceedings offered any reasonable prospects of success.
27. In the light of the foregoing, the Court considers that it should not take into account the date of the Supreme Administrative Court’s decision for the purpose of calculating the six-month period in the present case.
28. Given that the present application was lodged on 26 January 2011 and that the proceedings relating to the applicants’ request for expropriation were terminated on 14 January 2010, the Court finds that the application was submitted outside the six-month time-limit and must be rejected in accordance with Article 35 § 1 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 8 November 2018.
Renata Degener Ksenija Turković
Deputy Registrar President
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