In 1998 legislators decided to finally expropriate that land by virtue of a statute and settle the issue of the relevant compensation to be paid to the owners. In its judgement of 15 September 2009, the Constitutional Tribunal definitely closed the door on compensation for the ex-owners of properties acquired for public road purposes who had failed to submit appropriate compensation applications, as required by the 1998 law, before the end of 2005. In consequence, many ex-owners are likely to be unable to get any compensation whatsoever. As a rule, it does not mean they were tardy or negligently taking care of their interests. The real culprit were the irregularities in the functioning of public administration bodies. For some yet uncompensated ex-owners the last resort may be an application filed with the European Court of Human Rights.
The Tribunal reviewed constitutionality of Article 73(4) of the Introductory Provisions of the Public Administration Reform Act of 13 October 1998 (hereinafter, the ‘Act’). Under article 73(1) of the Act, legal title to the properties which had been acquired for public road purposes and actually held but not owned by the State Treasury or local government bodies as of 31 December 1998 was transferred to the state Treasury or local government bodies, as appropriate, on 1 January 1999, against compensation. The regulation challenged by the Tribunal governed the mode of paying the expropriation compensation. The provision in question, for instance, required that an ex-owner file the application between 1 January 2001 and 31 December 2005 (after expiry of that deadline, compensation claims became time-barred).
Filing the application was not the only requirement for obtaining compensation. In accordance with Article 73(3) of the Act, payment of compensation should be preceded by issuing an administrative decision by the Province Governor (wojewoda). The decision should confirm that the ownership relation had been changed by virtue of law, at the same time being a basis for making relevant entries to Land and Charges Registers (księgi wieczyste). Without the decision, claiming compensation was in fact pointless therefore many ex-owners withheld their claims waiting for the decision of a competent Province Governor. In practice, it appeared that obtaining a declaratory decision (which, legally, only confirms the status changed under the statute) was a problem, as proven by a case recently decided by the European Court of Human Rights (ECHR).
Five years of waiting for a decision
The Applicants, Mr and Ms Polańscy, owned the land located in the village of Wieprz (Śląskie Province). Until 1999 the Regional Public Roads Authority (Rejon Dróg Publicznych) had been using the Applicants’ land without any contractual basis. The property was to be used for an extension of a local road.
In 1999, when the Act entered into force, the Applicants requested the County Roads Authority (Powiatowy Zarząd Dróg) in Żywiec to calculate and pay compensation for actual expropriation of the property. In response, they were informed that under Article 73(4) the administrative proceedings in the case could be initiated only after 1 January 2001. Accordingly, the Applicants re-submitted their motion for compensation in January 2001. Since the motion was not considered during next few months, in September 2001 the Applicants intervened with the Śląskie Province Governor.
The Governor stressed that only the Head of the Żywiec County (starosta) is liable for payment of the compensation and any claims of the Applicants should be addressed accordingly. When the Applicants followed the suggestion of the Governor, they were informed by the Head of the Żywiec County that the title to the property in question was conveyed to the State Treasury as of 1 January 1999. The official failed to take any position in respect of payment of the compensation. In consequence, the Applicants reapplied to the Province Governor in October 2001. That time, he informed that the compensation would be paid on the basis of his decision confirming transferring the title to the property to the State Treasury, if sufficient financial means are secured.
The suitable decision was issued only in February 2006. It was appealed against by Mr and Ms Polańscy, trying to protest against several years of delay in payment of their duly owed compensation. However, the decision of the Province Governor was upheld by the Minister of Transport who emphasised that the issue of calculation and payment of compensation is subject to a separate administrative proceedings. In June 2006, a few months after the decision of the Minister, the Head of Żywiec County informed the Applicants that due to financial restrictions payment of the compensation will not be possible until the first quarter of 2007. Finally, the Applicants received the monies owed by the State in September 2007.
Unacceptable deprivation of compensation
ECHR, who had received the case already in 2001 (Application no. 21700/02), examined it from the perspective of a possible infringement of Article 1, Protocol No. 1 to the European Convention on Human Rights, guaranteeing the right to peaceful enjoyment of one’s possessions. In the judgment of 7 July 2009, the Court indicated that the Applicants had been rightfully entitled to claim compensation for being deprived of their property at least from the date the Act entered into force. Moreover, their entitlement to compensation was many times confirmed by relevant public administration bodies. However, for a long period of time the Applicants were unable to satisfy their justified claims. First, the blame is on legislators: they enabled ex-owners to claim compensation only from January 2001. This was overlapped by the approach of the bodies directly responsible for calculation and payment of compensation. Their tardiness in payment of the Polańscy’s compensation, explained by the insufficient funding, resulted in discharging the state’s duty to pay in 2007 regardless of the legal possibility to satisfy the claims as early as in 2001.
In total, as the Court calculated, the delay was eight years and nine months. Furthermore, when the compensation was finally paid, its value in no way reflected any damages for dilatoriness of the administrative proceedings pending in the case. Considering the above, ECHR affirmed the Applicants’ argument that Poland had violated their right to enjoy possessions.
What are the options in Strasburg?
After the judgment of the Constitutional Tribunal, the owners deprived of compensation have no appellate remedies under Polish law. The number of the claims which cannot be satisfied because of this ruling is likely to be significant. Only in the Provincial Administrative Court in Gliwice, the one which initiated the proceedings before the Tribunal, the issue concerned more than twenty people. The judgment in the case Polańscy v. Poland shows that at least some expropriated owners may seek justice filing the application with the European Court of Human Rights. Without doubt, the applications of those who have filed the motion within the statutory time-limit and either have failed to obtain the compensation or have been paid much too late, may be considered justified. Still, those who withheld their motions until Governors issued the decisions and found their claims time-barred because of expiry of the time-limit, should also seek protection before the ECHR following the exhaustion of the national remedies. First, potential applicants may argue that the administrative proceedings involving issuing the decisions by Governors were dilatory. Second, it should be pointed out that the applicants’ ability to seek compensation was actually non-existent until the Governor’s decision was issued as the latter constituted a basis for assessing the compensation amount. Consequently, even if ex-owners filed their motions within legal timeframes, in case of a Governor’s failure to issue the decision they have no guarantee whatsoever that they receive compensation in a reasonable time. It is therefore unjust to require that ex-owners submit motions which, until the Governor’s decision was issued, had been merely a formality without any real legal significance and given the movers no chance for obtaining the compensation.
By Dawid Sześciło
PhD student, Faculty of Law and Administration, University of Warsaw,
Ownership Law Clinic Coordinator, Helsinki Foundation for Human Rights
Translation: Piotr Mleczko
