CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 9 avril 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s68D1564D { width:34.89pt; display:inline-block } .sC6B6F7B3 { width:150.43pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block } .s75A32C27 { border-collapse:collapse } .s2F3EB0E4 { border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sE32676A4 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-after:avoid; font-size:12pt } .sE1A7A04C { font-family:Arial; font-weight:bold; color:#424242 } .sBAADFE8C { border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .sF9C0A319 { margin-top:0pt; margin-bottom:0pt; page-break-after:avoid; font-size:12pt } .sBA32C63A { margin-top:12pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid }     FIRST SECTION DECISION Applications nos. 59556/19 and 20240/20 Jerzy TUŻNIK against Poland and Mirosław SULIKOWSKI and Renata SULIKOWSKA against Poland   The European Court of Human Rights (First Section), sitting on 9 April 2024 as a Committee composed of:   Péter Paczolay , President ,   Alena Poláčková,   Gilberto Felici , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the applications nos. 59556/19 and 20240/20 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 the applicants listed in the appended table (“the applicants”), on the various dates indicated therein; the decision to give notice of the complaint under Article 1 of Protocol No.   1 to the Polish Government (“the Government”) represented by their Agent, Mr. J. Sobczak of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the applications; the parties’ observations; the decision to reject the Government’s objection to the examination of the applications by a Committee; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The issue in the case is whether the applicants’ right to compensation for the decrease in value of their real estate due to amendments to local development plans ( plany zagospodarowania przestrzennego ) has been violated, as their claims were dismissed owing to the fact that they had lost the rights to the property at issue while the relevant proceedings were pending. 2.     The applicants owned real estate property and, when its value decreased as a result of the enactment of amendments to the relevant local development plans, they claimed compensation from the local authorities. 3 .     Among the legal avenues, provided for in Section 36 of the Local Planning Act of 27 March 2003 (the “Act”; Ustawa z dnia 27   marca 2003 r. - o planowaniu i zagospodarowaniu przestrzennym ) and available to the applicants, the following two are of relevance. First, by virtue of Section   36   (1) of the Act if, in connection with the amendment of the local development plan, the use of the property in the previous manner or for the previous purpose has become impossible or substantially restricted, the owner or perpetual usufructuary of a property may claim (1) compensation for the actual damage suffered or (2) the buyout of the property or its part. Second, by virtue of Section 36 (3) of the Act, if, in the above-mentioned circumstances, the entitled person disposes of the property and has not used the first legal avenue, they may claim compensation equal to the decrease in the value of the property. 4.     The applicants in both applications never sold their properties themselves and initiated court proceedings against the respective local authorities specifically citing the first legal avenue. 5.     While the relevant proceedings against the local authorities were pending, both properties were forcibly sold by court bailiffs within enforcement of claims brought against the applicants by third parties – Mr   Tużnik lost the rights to his property on 1 April 2016, Mr   Sulikowski and Ms   Sulikowska on 29 January 2016. The applicants then argued that the forced sale should be considered akin to “disposing” of their properties and requested the domestic courts to award them compensation on the basis of Section 36 (3) of the Act. 6.     In final rulings given in 2019 the domestic courts ultimately dismissed the applicants’ claims, holding that they had lost standing to claim compensation. The courts considered that, in order to be awarded compensation, one has to retain ownership of the property affected by the local development plan until the end of the compensation proceedings. The applicants, however, have lost their property rights during the relevant proceedings owing to the fact that they have been indebted towards third parties. 7.     The applicants complained under Article 1 of Protocol No. 1 to the Convention of being refused compensation on the grounds that they had lost the right to their properties as a result of enforcement proceedings initiated by third parties. They argued that there was no justification for differentiating between the situation of a voluntary sale of property and a forced one conducted by a court bailiff. THE COURT’S ASSESSMENT 8.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. 9.     The Court notes that the Government raised preliminary objections on various grounds, including the allegedly premature character of application no. 20240/20 on account of a case for reopening of domestic proceedings pending before the Supreme Court. The Court does not find it necessary to decide on those objections, for the following reasons. 10.     The Court notes that the most far-reaching interference with the applicants’ property rights (namely, the loss of all rights to the real estate property sold by court bailiffs) resulted from the applicants’ being indebted to third parties, rather than from the amendments to the local development plans. The applicants have not raised any complaints in this respect and in any event the issue of forced sale of their real estate property is outside the six-month time ‑ limit. 11.     The instant scenario is therefore to be distinguished from other cases involving the consequences of adoption or amendment of local development plans, notably Skibińscy v. Poland , no. 52589/99, 14 November 2006. In that case, at the end of the domestic proceedings the applicants were left with a seemingly intact property right which, in practice, had been significantly reduced in its effective exercise (ibid., § 79). In the case under consideration the applicants currently have no property rights whatsoever due to the forced sale of their property. 12.     The issue to be examined is therefore whether the applicants, at the time, had an enforceable right to compensation despite having lost their property. 13.     Pursuant to the applicable provisions (see paragraph 3 above), the claims originally asserted by the applicants were clearly available only to persons whose rights have been restricted in connection with local development plans. As established in the Polish Supreme Court’s case-law (judgments of 29   September 2015, case no. II CSK 653/14, and of 6 October 2016, case no.   IV CSK 778/15), in order to claim compensation for actual damage under section 36 (1)1 of the Act, the claimant’s ownership of the property must be preserved until the conclusion of proceedings before the second-instance court. 14.     In such circumstances, the applicants could not reasonably have expected the local authorities to compensate for their loss. The Court notes that, as it transpires from the case files, the applicants were aware of that limitation, as they modified their arguments in the domestic proceedings and, at least in parallel, relied on the second legal avenue. 15.     Turning to the provision relied upon by the applicants after the forced sale of their property, the Court shall examine whether the applicants, in their particular situation, that is, not having sold the property themselves, had a legitimate expectation of obtaining compensation. 16.     The Court notes in this regard that, according to well-established case ‑ law of the Polish Supreme Court: (i) the forced sale of real estate property ( egzekucyjna sprzedaż nieruchomości ) is to be considered legally distinct from sale ( sprzedaż ), as defined in the Civil Code (judgment of 9   August 2000, case no. V CKN 1254/00); and (ii) the term “disposes” ( zbywa ), as used in section 36 (3) of the Act, cannot be construed as being applicable to all forms of transfer of ownership or perpetual usufructuary right (judgment of 11 March 2011, case no. II CSK 321/10). Thus, the domestic case-law clearly distinguishes between a voluntary and a forced sale of property for the purposes of claiming compensation within the relevant procedure and the Court sees no reason to question this stance. 17.     In view of the above, the applicants cannot claim to have had a legitimate expectation of being awarded compensation as, at the relevant time, they did not fulfil the statutory conditions thereof ( see Centro Europa   7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, §§ 172-73, ECHR   2012). It follows that the applicants cannot claim to have had a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention which could be interfered with by the domestic authorities ( see Gratzinger and Gratzingerova v.   the Czech Republic (dec.) [GC], no. 39794/98, §§   74-75, ECHR 2002 ‑ VII). 18.     Accordingly, the applications are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35   §   3 (a) and must be rejected in accordance with Article 35   §   4. For these reasons, the Court, unanimously, Decides to join the applications; Declares the applications inadmissible. Done in English and notified in writing on 16 May 2024.     Liv Tigerstedt   Péter Paczolay   Deputy Registrar   President   Appendix No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Represented by 1. 59556/19 Tużnik v.   Poland 31/10/2019 Jerzy TUŻNIK 1957 Dąbrowa Górnicza Tomasz KOWOLIK 2. 20240/20 Sulikowski and Sulikowska v. Poland 07/05/2020 Mirosław SULIKOWSKI 1962 Toruń Renata SULIKOWSKA 1961 Toruń Jacek BRUDZYŃSKI