In a judgment dated May 11, 2023 (ref. P 12/18), the Constitutional Court ruled, among other things, that:
Article 22(5)(3) of the Act of July 23, 2003 on the protection and care of historical monuments (Journal of Laws of 2022, item 840), to the extent that it restricts the right of ownership of real estate by allowing real estate to be included as a monument in the communal register of monuments, without providing the owner with a guarantee of legal protection against such restriction, is inconsistent with Article 64(1) and (2) in connection with Article 31(3) of the Constitution of the Republic of Poland.
The verdict means that the legislator should modify the regulation concerning, in particular, the procedure for creating a communal register of monuments, so as to give property owners the opportunity to challenge an entry in the register.
The justification states that: “The inclusion of real estate in the communal register of historical monuments causes significant restrictions, in particular with regard to the exercise of the right of ownership (ius utendi) involving the obligation to agree with the provincial conservator of historical monuments on decisions on determining the location of a public purpose investment, decisions on development conditions, decisions on construction permits, decisions on demolition permits and decisions on the approval of a construction project (cf. Act of March 27, 2003 on spatial planning and development [Journal of Laws of 2022, item 503, as amended] and Act of July 7, 1994. – Construction Law [Journal of Laws of 2023, item 682, as amended]). (…) Article 22(5)(3) of the Law on the Protection of Monuments, as interpreted by the courts, is not necessary for the protection of the public interest, and its effects are not in acceptable proportion to the burdens imposed on property owners.
The weakening of property protection, by excluding the owner’s participation in the proceedings resulting in the entry of real estate in the municipal register of monuments, does not serve any constitutionally legitimate values.”
