The entry of an immovable property as an immovable historic monument in the local register of historic monuments P 12/18
On 11 May 2023, the Constitutional Tribunal considered the question of law referred by the Supreme Administrative Court as to whether Article 22(5)(3) of the Act of 23 July 2003 on the protection and preservation of historic monuments (hereinafter: the Historic Monuments Protection Act) – insofar as it limits the right of ownership of an immovable property by permitting the entry of the immovable property in the local register of historic monuments, without providing the owner with any guarantees of legal protection against such limitation – is consistent with Article 64(1) and (2) in conjunction with Article 31(3) of the Constitution of the Republic of Poland as well as with Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, done at Paris on 20 March 1952.
The Constitutional Tribunal adjudicated that Article 22(5)(3) of the Act of 23 July 2003 on the protection and preservation of historic monuments (Journal of Laws – Dz. U. of 2022 item 840) – insofar as it limits the right of ownership of an immovable property by permitting the entry of the immovable property in the local register of historic monuments, without providing the owner with any guarantees of legal protection against such limitation – is inconsistent with Article 64(1) and (2) in conjunction with Article 31(3) of the Constitution of the Republic of Poland.
Moreover, the Tribunal discontinued the proceedings as to the remainder.
The ruling was unanimous.
The reservations raised by the Supreme Administrative Court pertained to the lack of both substantive and formal norms which would make it possible to effectively contest interference with the right of ownership (such as: failure to grant the owner of an immovable property the right to participate in activities undertaken by an executive authority of a unit of local self-government and by a conservation professional; failure to carry out any investigative activities under the Code of Administrative Procedure to determine if a historic monument entered in the local register of historic monuments actually constitutes the historic monument within the meaning of the Historic Monuments Protection Act). In the course of the proceedings, the Supreme Administrative Court did not challenge the constitutionality of the regulation itself, but merely the procedure which – in its view – is incomplete as it undermines the possibility of protecting ownership.
As higher-level norms for the constitutional review in the present case, the Supreme Administrative Court indicated Article 64(1) and (2) in conjunction with Article 31(3) of the Constitution of the Republic of Poland as well as one of the international agreements ratified by the Republic of Poland, i.e. Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Constitutional Tribunal pointed out that any restrictions of economic rights arising from Article 64(1) and (2) of the Constitution of the Republic of Poland should be introduced by statute, be necessary, and be functionally linked with the implementation of the values arising from Article 31(3) of the Polish Constitution, without violating the essence of the restricted rights. This way the restrictions of economic rights must pass the proportionality test.
The entry of an immovable property in the local register of historic monuments leads to serious restrictions, especially as regards the exercise of the right of ownership which is related, in particular, to the obligation to consult with the voivodeship conservation professional any decisions on the location of public-interest investment, decisions on construction permits, decisions on demolition permits and decisions on the approval of construction projects, which follows from the Spatial Planning and Development Act as well as from the Construction Act.
In the view of the Constitutional Tribunal – having juxtaposed the wording of Article 22(5)(3) of the Historic Monuments Protection Act, as interpreted by courts, with the indicated higher-level norms for the constitutional review in the present case – the said wording is not indispensable for the protection of public interest, and the effects of the said provision are not admissibly proportionate to the burdens imposed on the owners of immovable properties.
The Tribunal pointed out that the owner of an immovable property, having been informed that the immovable property is to be entered in the local register of historic monuments, has no possibility of taking a stand in the administrative proceedings and contest the activities of a public administration authority in consultation with the competent conservation professional. Therefore, in the Tribunal’s opinion, any regulation within this scope should be highly precise, and the criteria applied ought to be clear, due to the considerably capacious statutory definition of ‘a historic monument’, which gives rise to the broad ambit of administrative discretion.
According to the Tribunal, the protection of national heritage as a special value, comprising the protection of historic monuments, as expressed in the Preamble to the Constitution of the Republic of Poland as well as in Articles 5 and 6 of the Constitution, does not have to clash with the principle of the protection of ownership, provided that the interests are weighed out reasonably and proportionally by the law-maker.
The adjudicating bench of the Constitutional Tribunal in the case was composed of: Judge Stanisław Piotrowicz – Presiding Judge; Judge Bartłomiej Sochański – Judge Rapporteur; Judge Krystyna Pawłowicz; Judge Bogdan Święczkowski; Judge Jarosław Wyrembak.