A restriction imposed on the exercise of the right of ownership within the scope of the principle of return of expropriated immovable property SK 7/13
The challenged provision of the Act of 21 August 1997 on the Management of Immovable Property is not inconsistent with the Constitution.
At the hearing on 23 September 2014 at 1.00 p.m., the Constitutional Tribunal considered a constitutional complaint, submitted by Ms D.K., with regard to a restriction imposed on the exercise of the right of ownership within the scope of the principle of return of expropriated immovable property.
The Constitutional Tribunal adjudicated that Article 136(3) of the Act of 21 August 1997 on the Management of Immovable Property, insofar as the said provision did not permit that the previous owner could lodge a claim for the return of a given immovable property acquired by a unit of local self-government as a result of the division of another property upon the owner’s application, if the said property had not been used for a given public purpose within a time-limit set by statute and had become useless for the fulfilment of that purpose, was not inconsistent with Article 21(2) in conjunction with Article 32(1) and Article 64(2) of the Constitution.
Furthermore, it decided to discontinue the review proceedings as to the remainder on the grounds that issuing a judgment was inadmissible.
The subject of the allegation in the petitum of the complaint under examination comprised the following: Article 136(3) and Article 216 in conjunction with Article 98 and Article 112 of the Act of 21 August 1997 on the Management of Immovable Property (hereinafter: the Act on the Management of Immovable Property; the Act), insofar as the said provisions ruled out the application of the provisions of chapter 6 in Section III of the Act to immovable properties that had been taken over (acquired) by the State Treasury or the units of local self-government on the basis of Article 98(1) of the Act.
The Tribunal shared the view of the participants in the review proceedings that the scope of the allegation was too broad. Article 216 of the Act is a transitional provision and regulates the proper application of the Act’s provisions set out in its chapter 6 in Section III in the context of immovable properties that were taken over or acquired on the basis of the relevant previous Act.
By contrast, Article 98 of the Act of 21 August 1997 on the Management of Immovable Property specifies a procedure for dividing an immovable property upon the owner’s application and is not an appropriate provision for comprising a norm permitting the lodging of a claim for the return of an immovable property acquired by a unit of local self-government as a result of the division of another immovable property, for the purpose of building a public road, when the purpose for which the said property was acquired proved to be useless.
Article 112 of the Act on the Management of Immovable Property defines expropriation within the meaning of that Act and sets out the basic rules of expropriation proceedings. Article 136(3) of the Act explicitly specifies rules for the return of expropriated immovable properties based on the currently applicable provisions of the Act on the Management of Immovable Property are in.
Therefore, Article 136(3) of the Act was the right provision for proving the allegation of statutory omission and it was the provision that constituted the subject of the allegation in the case under examination.
In the petitum of her complaint, the complainant challenged the constitutionality of Article 136(3) of the Act on the Management of Immovable Property, insofar as the said provision did not permit the return of an immovable property acquired by a commune as a result of the division of another immovable property upon the application of the previous owner, if the said property had not been used for a given public purpose within a time-limit set by statute. In the statement of reasons for the complaint, she included an additional element which specified the scope of the allegation in greater detail, by arguing that not only had the relevant commune failed to carry out the set public purpose for which the disputable land had been taken over (nor had the commune even begun to carry out that purpose), but also the said land had recently become useless for that purpose.
Thus, considering the special – incidental – character of a constitutional review commenced by a constitutional complaint, the Tribunal deemed that the subject of the allegation in the case under examination was Article 136(3) of the Act on the Management of Immovable Property, insofar as the said provision did not permit that the previous owner could lodge a claim for the return of a given immovable property acquired by a unit of local self-government as a result of the division of another property, if the expropriated property had not been used for a given public purpose within a time-limit set by statute and became useless for the fulfilment of that purpose.
As a ground for her allegations, the complainant indicated statutory omission.
Statutory omission is construed as the introduction of an incomplete regulation. Permitting the possibility of assessing the constitutionality of statutory omission, the Tribunal indicates that a constitutional review always comprises the entire normative content of a given challenged provision. Thus, it is admissible also to examine the lack of certain normative elements that are necessary from the point of view of the constitutional regulation. A given regulation may be regarded as incomplete if, from the point of view of constitutional principles, its scope of application is too narrow or omits content that is significant from the point of view of the subject and aim of the regulation.
In the case under examination, the allegation of statutory omission concerned the fact that the situations regulated in Article 98 of the Act on the Management of Immovable Property had not been included in Article 136(3) of the Act, i.e. the circumstance when given land had been divided upon the owner’s application. In the view of the complainant, she should have had the right to claim the return of the immovable property acquired (taken over) by the unit of local self-government when general grounds for the return of the immovable property had been met (failure to fulfil a public purpose), and the land taken over (acquired) by the unit of local self-government (the commune) had become useless for carrying out the public purpose.
The constitutional issue under examination, i.e. the question of the constitutionality of Article 136(3) of the Act on the Management of Immovable Property within the scope indicated by the complainant in the light of the selected higher-level norms for the review had to be discussed after it was determined whether Article 98(1) of the Act on the Management of Immovable Property had brought about consequences that were equivalent to expropriation defined by the Constitution. Only then was it justified to consider the conformity of the said provision of the Act to Article 21 and Article 61(1) in conjunction with Article 32 and Article 64(2) of the Constitution.
In the case where Article 98(1) of the Act on the Management of Immovable Property did not bring about such results, the consequences of the application thereof might not be compared with the cases of statutorily defined expropriation and with situations that fell within the scope of the regulations of statutes referred to in Article 216 of the Act on the Management of Immovable Property. In such a case, the indicated higher-level norm for the constitutional review, reconstructed from several interrelated provisions of the Constitution, was inadequate.
In the case under examination, the Tribunal stated that the constitutional term of expropriation comprised situations that jointly met the following requirements:
- expropriation was a special form of interference in the realm of property which was only admissible for carrying out a public purpose that might not be carried out by other legal means,
- expropriation was always initiated by a public entity that would take over the right of ownership or another property right,
- expropriation was carried out by an individual act indicating a specific immovable property to be taken over by a particular entity in the course of administrative proceedings,
- expropriation was carried out for the sake of a given public entity and against the will of a given private owner, and entailed restricting or taking over the right of ownership or another property right,
- a public purpose (interest) should solely be construed as the common good i.e. the interest of the entire nation or regional community, and expropriation took place in the interest of the public entity to whom a given property right was granted (directly) and in the interest of the entire nation or regional community (indirectly),
- expropriation was linked with a simultaneous payment of just compensation to the expropriated owner, the amount of which was specified by provisions on expropriation.
The Tribunal indicated that prima facie the effect of applying Article 98(1) significantly differed from the constitutional definition of expropriation. What was above all missing from the construct of Article 98(1) of the Act was the will of a public-law entity to take over a given private immovable property – the will that was primary in character and had legal effects. On the contrary, it had been the private owner’s initiative to divide the property, as a result of which the right of ownership to one of the plots of land might be taken over by the indicated public entity. However, the said entity was in the first place, in a way, “forced” on the basis of the provisions of the Act on the Management of Immovable Property to acquire that plot of land (to pay compensation), and then, by using its own funds, to build a public road on that land.
The public purpose for which the land in question had been taken over (acquired) by the commune suggested that in the case of the complainant’s plot of land, the said purpose had been achieved at the moment of adopting a relevant resolution by the commune, despite the fact that the road had not been built within the set time-limit.
The legislator had drawn a clear distinction between division upon application and ensuing legal effects on one side and the legal institution of expropriation on the other. This was already visible in the structure of the Act on the Management of Immovable Property, where the divisions of immovable properties had been regulated in chapter 1 (“Divisions of Immovable Property), whereas expropriation had been regulated in provisions in chapter 4 of the Act (“the Expropriation of Immovable Property”). The analysis carried out by the Tribunal with regard to Article 216 of the Act on the Management of Immovable Property and the provisions of statutes to which it refers leads to the conclusion that the acquisition of an immovable property singled out by division, upon the owner’s application, for the purpose of building a public road, by a public-law entity by virtue of law and for compensation does not bring about any effects that would be constitutionally similar to those arising from any of the regulations falling within the scope of the application of Article 216 of the Act.
This entails that Article 136(3) of the Act on the Management of Immovable Property, insofar as the legislator does not permit that the previous owner can lodge a claim for the return of a given immovable property acquired by a unit of local self-government as a result of the division of another immovable property, if the said property was not used for a given public purpose within a time-limit set by statute and has become useless for the fulfilment of that purpose, is not inconsistent with Article 21(2) in conjunction with Article 32(1) and Article 64(2) of the Constitution.
The hearing was presided over by Judge Sławomira Wronkowska-Jaśkiewicz, and the Judge Rapporteur was the President of the Constitutional Tribunal, Judge Andrzej Rzepliński.