Did the Constitutional Court "abolish" the municipal register of historical monuments?
On May 18, 2023 in the Journal of Laws (in Polish: Dziennik Ustaw), the Constitutional Court's judgment dated May 11, 2023 (case no. P 12/18) was published. In the judgement the Constitutional Court reviewed the constitutionality of the procedure for entry into the municipal register of historical monuments (in Polish: gminna ewidencja zabytków, hereinafter: "GEZ") of immovable monuments designated by the head of the commune/mayor/city president (in Polish: wójt/burmistrz/prezydent miasta) in consultation with the voivodeship conservator of historical monuments, i.e. the procedure of the Article 22 paragraph 5 point 3 of the Act of July 23, 2003 on the protection and care of historical monuments (the Journal of Laws 2022, item 840). The Constitutional Court ruled that the aforementioned procedure for inclusion in the GEZ is incompatible with the Polish Constitution to the extent that it restricts the right to property by failing to provide the owner of an immovable monument with guarantees of legal protection in the course of such proceedings.
2. Consequences of including a historical monument in the GEZ
Among the municipality's duties is the protection of historic buildings, and it is the GEZ that is supposed to fulfill this task. The entry is made on the basis of an ordinance (not an administrative decision) of the executive body of the municipality, which makes it an administrative act of an internal nature.
Prior the publication of the judgment in question, the provisions of the Act on the protection and care of historical monuments allowed the head of the commune/mayor/city president to arbitrarily include a property as an immovable monument in the GEZ. This procedure for including an object in the GEZ and preparing its address card – was not specified in any way. This led to a situation where every manifestation of the authority's action in this regard was considered lawful, the owner of the building was not provided with the opportunity to protect his property rights prior to its entry in the GEZ, and, as a rule, he found out about the creation of the monument's address card only after that fact.
Importantly, unlike entry in the register of monuments, entry of a property in the GEZ does not impose special obligations on its owner, however, a major and burdensome consequence of including an object in the GEZ is the need to make arrangements with the voivodeship conservator of monuments in order to obtain, among other things, a building permit (demolition permit), or/and a zoning decision – which significantly affects the scope of rights arising from the right of ownership, essentially limiting them in practice.
3. Will monuments included in the GEZ remain unprotected?
After the Constitutional Court's judgment, there were some voices in the media that it may result in the "abolition" of the GEZ, which would consequently result in leaving many historical properties without legal protection.
However, the position of the Ministry of Culture and National Heritage (in Polish: Ministerstwo Kultury i Dziedzictwa Narodowego) should be shared here, that the judgment does not lead to the abolition of the GEZ, nor does it include in its scope the monuments that were included in it due to their previous entry in the register of historical monuments or in the voivodeship register of historical monuments.
Nevertheless, as long as there are no legislative changes ensuring adequate protection of the property rights of the property owner, primarily by allowing him to participate in the GEZ entry procedure, it is unlawful to make subsequent entries in the GEZ of other real estate monuments designated by the head of the commune/mayor/city president in consultation with the voivodeship conservator of monuments.
4. Basis for eliminating GEZ entry from legal system
The Constitutional Court's judgment does not indicate that entries to the GEZ made on the basis of a partially unconstitutional provision are not subject to revocation under the Article 190 paragraph 4 of the Polish Constitution, which means that the ruling provides a basis for eliminating from legal system all entries to the GEZ made on the basis of a provision deemed partially unconstitutional by the Constitutional Court. Since the possibility of appointing an immovable monument to the GEZ by the head of the commune/mayor/city president in consultation with the voivodeship conservator of monuments was introduced by the 2010 amendment, i.e. the Act of March 18, 2010 amending the Act on the protection and care of historical monuments and on the amendment of certain other acts (the Journal of Laws No. 75, item 474), in practice this means that entries made only after the entry into force of the amendment and on its basis, i.e. after June 5, 2010, will be rebuttable.
The removal of a given immovable monument from the GEZ may be effected by way of a claim to an administrative court, which has the power to invalidate the ordinance on the basis of which a given real estate was included in the GEZ (with effect from the moment of issuing the ordinance) or to declare the illegality of such an ordinance (with effect from the date the administrative court’s judgment becomes final). In addition, the initiation of such an administrative court proceeding may be the basis for suspending proceedings for the demolition of a building listed in the GEZ.
The Constitutional Court's judgment does not result in a sudden lack of protection for thousands of properties entered in the GEZ. Entries made prior to the announcement of the judgment still remain in force, while it opens the gate to eliminate them from the legal system. On the other hand, the removal of a immovable monument from the GEZ will allow it to be demolished if it is not covered by another form of protection in the meantime.