Communicated on 24 August 2015
FOURTH SECTION
Application no. 10872/11
Danuta KOŁPACZEWSKA
against Poland
lodged on 1 February 2011
STATEMENT OF FACTS
The applicant, Ms Danuta Kołpaczewska, is a Polish national, who was born in 1947 and lives in Warszawa.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background of the case
The applicant and her husband divorced in 2003. On 28 March 2006 the Warsaw District Court gave a decision in the proceedings concerning division of the marital property. The court granted the applicant the right to the marital flat. The court also held that the applicant’s ex-husband B.K. had a right to social accommodation. At the same time it decided that B.K.’s obligation to leave the flat be suspended until the municipality provided him with social accommodation.
2. The applicant’s attempts to receive compensation.
On 16 May 2009 the applicant, relying on Section 18 (5), of the Act of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and on amendments to the civil code (Ustawa o ochronie lokatorów, mieszkaniowym zasobie gminy i o zmianie kodeksu cywilnego), (“the 2001 Act”) sent a motion to the Warsaw Municipality asking for compensation for failure to provide social accommodation to B.K.
On 20 July 2009 the Warsaw Ursynów municipality informed the applicant that according to the Supreme Court’s and Supreme Administrative Court’s case-law she should have firstly addressed the person who had been occupying her flat without a legal title.
On 23 October 2009 the applicant lodged a claim for payment against B.K. with the Warsaw District Court.
On 11 March 2010 the Warsaw District Court dismissed the applicant’s claim. The court held that the applicant had failed to prove that even if B.K. had moved out, she would have been able to rent one room to someone else and to have profits thereof. In addition, the court noted that since 2003, B.K. had contributed to the upkeep of the apartment and paid half of the monthly service charges.
On 9 September 2010 the Warsaw Regional Court upheld the first instance judgment. The court stressed that since 2003 B.K. had been paying half of the monthly service charges. Therefore, he could not be expected to pay any compensation, in particular, as he was the former co-owner of the apartment. Consequently, he could only be required to contribute to the monthly service charges, which he had been doing.
A cassation appeal was not available in the applicant’s case.
On 13 June 2011 the Warsaw Ursynów municipality informed the applicant that B.K. was on the 43 position on the list of 119 persons waiting for allocation of social accommodation in Ursynów.
On 25 February 2014 B.K. moved out of the applicant’s flat.
B. Relevant domestic law and practice
Act of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and on amendments to the Civil Code (Ustawa o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego) provides, in so far as relevant, as follows:
“1.Persons occupying an apartment without a legal title must pay compensation for every month until they vacate the apartment.
2. Subject to point 3, the compensation equals the amount of rent which the owner might obtain if the apartment was rented [...].
3. Persons entitled to a social accommodation - in case a court decided to suspend their obligation to leave the apartment until they are offered social accommodation – shall pay compensation in the amount of rent or other fees for using of the apartment which they would have to pay if the legal relation still existed.
4. [repealed]
5. If the municipality fails to provide social accommodation to a person entitled to it by a final court’s judgment, an owner [of the apartment] has the right to claim compensation from the municipality, on the basis of Article 417 of the Civil Code.”
COMPLAINT
The applicant complains under Article 1 of Protocol No. 1 to the Convention about a violation of her right to peaceful enjoyment of her possessions.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No.1 1? If so, was that interference necessary to control the use of property in accordance with general interest? In particular, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 59, ECHR 1999‑V)?
2. Has the applicant any effective domestic remedy or remedies in respect of her complaint, as required by Article 35 § 1 of the Convention? In particular, can a claim for compensation under Section 18 of the Act of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and on amendments to the Civil Code be considered an effective remedy?
To the Government:
The Government are asked to provide the Court with information as regards the number of persons in Poland awaiting allocation of social accommodation in consequence of execution of eviction judgments.
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