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Concerning the return of expropriated immovable property. SK 9/08

The return of expropriated immovable property, insofar as it overlooks Article 47(1) of the Act on the rules and procedure for expropriating immovable property as the basis for the acquisition of immovable property by the State Treasury, in the case of the property governed by the provisions of Part III, chapter 6, of the Act of 21 August 1997 on the management of immovable property, is inconsistent with the Constitution.

At the hearing on 19 May 2011 at 9 a.m., the Constitutional Tribunal considered a constitutional complaint, submitted by Mr Wiesław P., which concerned the return of expropriated immovable property.

The Constitutional Tribunal adjudicated that Article 216(1) of the Act of 21 August 1997 on the management of immovable property, insofar as it overlooks Article 47(1) of the Act of 12 March 1958 on the rules and procedure for expropriating immovable property as a basis for the acquisition of immovable property by the State Treasury, in the case of the property governed by the provisions of Part III, chapter 6, of the Act of 21 August 1997 on the management of immovable property, was inconsistent with Article 64(1) and Article 64(2) in conjunction with Article 32(1) of the Constitution.

The Constitutional Tribunal discontinued the proceedings within the scope of examination of constitutionality of Article 233 in conjunction with Article 242 of the Act of 21 August 1997 on the management of immovable property on the grounds that the pronouncement of a judgment was useless, and as to the remainder - on the grounds that the pronouncement of a judgment was inadmissible.

The Constitutional Tribunal stated that the omission of Article 47(1) of the Act of 12 March 1958 in Article 216(1) of the Act on the management of immovable property (hereinafter: "the Act") constituted a peculiar omission. Adopted by the legislator in Article 216(1), the legislative technique - for enumerating the provisions to which the provisions of Part III chapter 6 apply - leads to the situation where the interpretation of administrative courts, based on the principle of legalism, may not "add" Article 47(1) to the provisions enumerated in Article 216 of the Act, as the said courts would interfere with the powers of the legislator. Also, the Tribunal may not change the interpretation of Article 216(1) adopted by administrative courts, since its scope of competence does not include the universal interpretation of legal provisions. In the context of the legislative technique adopted in Article 216(1) of the Act, the Tribunal did not discontinue the proceedings in the case, relying on argumentation that the expropriation of the said property had occurred on the basis of defective application of law, since the basis for expropriation, in the context of the Act of 12 March 1958, was incomplete. Such a solution was rejected by the Tribunal, as this would deprive the claimant of equal legal protection with regard to others.

This reveals the peculiarity of the omission of Article 47(1) of the Act of 12 March 1958 in Article 216(1) of the Act. This omission leads to the situation where the right to apply for the return of expropriated immovable property does not regard those from whom, by way of voluntary agreement (specified in Article 6 of the Act of 12 March 1985), the State Treasury purchased an immovable property, the expropriation of which it had intended, if the notary deed transferring the ownership title to the property indicates Article 47(1), and not Article 6 of the Act of 12 March 1958. By contrast, the right to apply for the return of expropriated immovable property is enjoyed by those from whom the State Treasury purchased an immovable property, by way of voluntary agreement, but the notary deed indicates Article 6 of the Act of 12 March 1958 as a legal basis.

The Tribunal finds no values, principles or constitutional norms which would justify a different treatment of the above-mentioned groups of persons. Their situations are very similar: they were expropriated by way of voluntary agreement, referred to in Article 6 of the Act of 12 March 1958, and with the fulfilment of the permisses set out in the provisions of Part III, chapter 6, of the Act on the management of immovable property, in particular Articles 136-137, they may demand the return of expropriated immovable property or part thereof, if it has ceased to be needed for the purpose specified in expropriation.

The judgment of the Constitutional Tribunal entails that, in order to eliminate unconstitutionality, it will be necessary for the legislator to intervene in order to include Article 47(1) of the Act of 12 March 1958 in Article 216(1) of the Act, among the provisions to which the provisions of Part III, chapter 6, of the Act apply.

The hearing was presided over by Judge Zbigniew Cieślak, and the Judge Rapporteur was Judge Adam Jamróz.

The judgment is final and its operative part shall be published in the Journal of Laws.