CEDH · CASELAW;CLIN;ENG — 29 mars 2011

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 139 March 2011 Potomska and Potomski v. Poland - 33949/05 Judgment 29.3.2011 [Section IV] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Peaceful enjoyment of possessions Inability to compel authorities to expropriate development land following its listing as an historic monument: violation   Facts – In 1974 the applicants purchased from the State a plot of land that had been reclassified as farming land after the closure of a Jewish cemetery there in 1970. Before going ahead with the purchase, the applicants informed the authorities that they wished to build a house and workshop on the land. In 1987 the authorities decided to list the property on the register of historic monuments, noting that it had been a Jewish cemetery since the beginning of the nineteenth century and was one of the few remaining vestiges of Jewish culture in the region. As a result the applicants were required to preserve and protect the land and prohibited from developing it without a permit. On three occasions (in 1992, 2001 and 2003) the regional inspector of historic monuments requested the local authority to expropriate the land but the mayor eventually declined citing a lack of funds. In the interim, the applicants had asked to be allocated alternative land in exchange, but were only offered a mixture of fields and swamps that did not, in their view, correspond to the value of their property. Law – Article 1 of Protocol No. 1: There had been an interference with the peaceful enjoyment of the applicants’ possessions which was provided for by law (Protection of the Cultural Heritage Act 1962) and pursued the legitimate aim of protecting Poland’s cultural heritage. The evidence before the Court indicated that the authorities had been aware in 1973 that the applicants were purchasing the land for use as a building plot. The 1987 decision to list the property had resulted in a number of far-reaching restrictions on its use. In order to assess whether a fair balance had been struck between the general interest and the applicants’ rights, the Court had to examine what measures had been taken to counterbalance the interference and in that connection it considered that the most fitting measure would have been expropriation with payment of compensation or the offer of a suitable alternative property. It noted, however, that under the domestic law, the expropriation of a monument of particular historic, scientific or artistic value could be carried out only at the instance and discretion of the authorities and there was no procedure by which the applicants could have compelled the authorities to expropriate their property. As to the applicants’ refusal of the offers of land in exchange, in the absence of a valuation of the land on offer or a procedural mechanism to resolve disputes over the land’s suitability, the applicants could not be blamed for refusing the offers as they had no guarantee that their interests would be sufficiently protected. Lastly, the state of uncertainty in which the applicants continued to find themselves, neither being able to develop their land or have it expropriated, had lasted a considerable amount of time. Accordingly, the fair balance between the demands of the general interest of the community and the requirements of the protection of property had been upset and the applicants had had to bear an excessive burden. Conclusion : violation (unanimously). Article 41: Reserved.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes