AS TO THE ADMISSIBILITY OF
Application No. 28863/95
by Aleksandra and Tomasz KOPCZYNSKI
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 July 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 November 1994
by Aleksandra and Tomasz KOPCZYNSKI against Poland and registered on
5 October 1995 under file No. 28863/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, who are both Polish citizens, are a married
couple. The first applicant, born in 1950, is a technician. The
second applicant, born in 1946, is an engineer. They reside in
Olsztyn, Poland.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
Particular circumstances of the case:
On 10 May 1988 the applicants bought three shares in the joint-
stock company "Centon". Subsequently, following a resolution of a
general meeting of the shareholders of 23 May 1989 concerning an
increase in the share capital, the applicants paid up further shares
by way of a contribution in kind (i.e. a piece of real property and
their industrial estate situated in Krupoliny). The value of their
contribution was deemed to be equal to 50 % of the new total share
capital. A notarised agreement finally transferring the ownership of
the property concerned was made on 30 November 1989 in the Olsztyn
Public Notary's Office (Panstwowe Biuro Notarialne). The same day the
company "Centon" was registered as the owner of the property in
question in the Olsztyn District Court Real Property Register (S*d
Rejonowy Wydzial Ksi*g Wieczystych). On 15 June 1990 the second
applicant was appointed to the board of directors of the company.
Apparently, between December 1991 and April 1992, various entries
concerning the issue of shares were made and various resolutions passed
by the organs of the company were registered in the Olsztyn District
Court Commercial Register (Rejonowy S*d Gospodarczy - Sekcja
Rejestrowa) upon motions filed by the managing director of the company
"Centon".
Since the applicants considered that those entries had been based
either on untrue statements or forged documents, on 6 April 1992 they
informed the company that they wished to withdraw their contribution
in kind. On 29 May 1992 the general meeting of shareholders passed a
notarised resolution obliging the board of directors to conclude a
notarised agreement with the applicants under which the ownership of
the property in question would be transferred back to them. At the
same time it obliged the board of directors to prepare a detailed
account of the company's claims for expenses incurred in relation to
the property.
In the meantime, on 28 May 1992, apparently upon a further motion
filed by the managing director of the company, the court registered the
resolution of 23 May 1989 relating to the increase in the share capital
through the applicants' contribution in kind.
a) Proceedings relating to the amendment of the entry made in the
real property register.
Following the above-mentioned resolution of 29 May 1992, the
applicants were involved in negotiations concerning the procedure and
deadline for their contribution in kind to be returned. However, as
no satisfactory agreement was reached, on 4 November 1992 they lodged
a claim under Section 10 para. 1 of the Law on the Real Property
Register and Hypothec with the Olsztyn Regional Court (S*d Wojewódzki),
requesting that the entry made in the Olsztyn District Court Real
Property Register on 30 November 1989, in accordance with which the
company "Centon" was registered as the owner of the real property and
industrial estate in Krupoliny, be amended and the applicants be
registered as the owners of this property.
On 24 December 1992 the defendant company filed a pleading in
reply to the applicants' statement of claim and requested the court to
dismiss the claim as premature. The applicants responded on 5 February
1993, advancing arguments in support of their claim. The defendant
replied on 5 April 1994. Between 15 April and 23 June 1993 the parties
filed six further pleadings between them and submitted a range of
documentary evidence.
In the meantime, on 21 April 1993, the court held a hearing and,
at the parties' request, ordered that certain documentary evidence be
obtained. During the hearing the court also heard evidence from the
parties.
On 17 November 1993 the Olsztyn Regional Court again heard
evidence from the parties and gave judgment dismissing the applicants'
claim.
On 21 December 1993 the applicants lodged an appeal against this
judgment with the Warsaw Court of Appeal (S*d Apelacyjny).
On 27 April 1994 the defendant filed a pleading in reply to the
applicants' appeal.
On 7 July 1994 the Warsaw Court of Appeal dismissed the
applicants' appeal.
On 5 September 1994 the applicants requested the Ombudsman to
intervene on their behalf, submitting that the courts concerned had
committed serious errors of law and fact in their judgments and thus
their right to a fair hearing, guaranteed under Article 6 para. 1 of
the Convention, had not been respected. On 17 October 1994 the
Ombudsman informed them that he had referred their complaint and
supporting documents to the Minister of Justice who would make a
decision on whether or not it would be justified to grant them leave
to file an extraordinary appeal.
On 18 January 1995 the Minister of Justice refused to grant the
applicants leave to file an extraordinary appeal, finding that there
was no justifiable basis for the opinion that the contested judgments
had been affected by a flagrant breach of law.
b) Proceedings relating to the amendment of entries made in the
Olsztyn District Court Commercial Register.
On 16 June 1993 the applicants lodged an application under
Section 21 of the Commercial Code with the Olsztyn District Court.
They requested the court to strike various entries made upon the motion
of the managing director of the company "Centon" out of the commercial
register, claiming that they had been based either on inaccurate
information or untrue statements, or that they had been inadmissible
in law. The relevant entries concerned, in particular, the resolution
of 23 May 1989 relating to the increase in the company's share capital
through the applicants' contribution in kind.
On 8 February 1994 the court held a hearing and heard evidence
from the parties. It apparently decided that no further hearing should
be held for the time being.
On 23 January 1995 the applicants complained to the Chief Justice
of the Supreme Court (S*d Najwyzszy) about inactivity on the part of
the Olsztyn District Court, submitting that the proceedings in their
case were lasting for an unreasonably long time even though their claim
could have been determined at the first hearing.
On 24 February 1995 the Chief Justice of the Supreme Court
notified the Chief Justice of the Olsztyn District Court that the above
complaint had been lodged and ordered the court of first instance to
take further action in respect of it.
On 23 March 1995 the Olsztyn District Court made a decision
granting the applicants' request of 16 June 1993.
c) Applicants' request for criminal proceedings to be instituted.
On 8 April 1993 the second applicant, apparently acting on behalf
of both of them, requested the Olsztyn District Prosecutor (Prokurator
Rejonowy) to institute criminal proceedings against the managing
director and members of the board of directors of the company "Centon",
submitting that they had committed an offence outlawed under Section
482 of the Commercial Code, i.e. that they had acted to the detriment
of the company.
On 23 June 1993 the prosecutor discontinued the investigation,
finding that no offence had been committed. On 5 August 1993, upon the
applicant's appeal, the Olsztyn Regional Prosecutor (Prokurator
Wojewódzki) upheld the decision of the prosecutor at first instance.
d) Insolvency proceedings.
Between May and November 1995, the applicants were negotiating
the return of their property with the board of directors of the company
"Centon". However, as the applicants wished to regain actual
possession of their property on the basis of an inventory before any
notarised agreement transferring ownership was made, whereas the
company's representatives insisted on a notarised agreement being made
prior to transfer of actual possession, no settlement was reached.
Subsequently, at the beginning of 1996, the company became
insolvent.
On 18 November 1996 the board of directors of the company
"Centon" lodged an insolvency petition (wniosek o ogloszenie upadlosci)
with the Olsztyn District Court.
On 9 January 1997, the applicants, apparently unaware that an
insolvency petition had already been submitted to the court, lodged a
petition for the winding-up of the company (wniosek o likwidacj*
spólki) with the Olsztyn District Court.
On 13 March 1997 the court declared the company insolvent and
assigned a judge-receiver (s*dzia komisarz) and a trustee (syndyk masy
upadlosci). By a letter of 7 April 1997 the trustee informed the
applicants that they should take such further steps in the insolvency
proceedings as were desirable to protect their interests.
On 19 May 1997 the applicants, in reply to the trustee's letter,
submitted a written statement addressed to the judge-receiver and the
trustee, requesting them, inter alia, to order that their property be
returned to them. They stressed the fact that, on 23 March 1995, the
Olsztyn District Court had struck the entry based on the resolution of
23 May 1989 (according to which their property had become one of the
company's assets) out of the commercial register. As a result, the
property in question had ceased to belong to the company and there was
no legal basis for it to be used to cover the company's debts.
In the meantime, the applicants negotiated preliminary conditions
with the trustee for the return of their property. Since the company
"Centon" had made certain disbursements in relation to the applicants'
property, while it was in its possession, the trustee proposed to
return the property to the applicants on condition that they reimbursed
the disbursements.
As of 15 December 1997 no formal decision relating to the
applicants' statement of 19 May 1997 had been taken either by the
judge-receiver or by the trustee.
The insolvency proceedings are pending.
Relevant domestic law and practice:
1. Proceedings relating to the amendment of entries made in a court
commercial register.
The Polish Commercial Code, in Sections 6 and 13-25, provides
that any limited liability company and joint-stock company is obliged
to register itself in the District Court Commercial Register which
lists information concerning a given company, its shareholders, organs,
type of business activity, amendments to the deed of incorporation,
assets, share capital, contributions, mergers etc. All entries are
made on the basis of documents submitted to the register and are open
to public inspection. A company must, within a two-week time-limit,
notify the relevant court about any circumstance required by law to be
entered in the register and it must submit its balance sheet to the
court following the first year of its existence.
Decisions of the court are served on the company concerned and
other persons affected thereby. An application for entries to be
amended in accordance with the actual facts may be lodged at any time
with that court under Section 21 of the Polish Commercial Code, which,
insofar as relevant, provides:
"1. ... where an application is made to rectify or strike an
entry out of the commercial register on the grounds of it being
unjustified, the court may order that an appropriate amendment
be made to the register."
Proceedings instituted under Section 21 of the Commercial Code
are limited to an assessment of the question of whether the contested
original entries were justified. In practice, all that is required in
order to determine such an application is a verification of the
accuracy of the documents submitted to the register; if necessary, the
competent court may hear evidence from the parties.
2. Amendment of entries made in a court real property register.
The Law of 6 July 1982 on the Real Property Register and Hypothec
(as amended) provides for compulsory registration of ownership and
other rights in rem in a real property register kept by district
courts.
Under Section 10 of the Law, if there is any inconsistency
between the actual legal status of immovables and the relevant entry
in a court real property register, which results in the right of
ownership not being entered in the register or being entered
incorrectly, the person concerned shall have a claim for amendment of
such an entry. The claim shall be examined by a regional court in civil
proceedings.
3. Transfer of ownership of immovables.
The Polish Civil Code requires, in Section 158, that a contract
transferring ownership of immovable property must, on pain of nullity,
be concluded in the form of a notarised deed. Such a contract is
formed by consent between parties.
4. Obligation to give consent to a contract.
In cases where a party to a future contract, whether or not one
relating to immovable property, is obliged, for whatever reason, to
give a "declaration of will" (oswiadczenie woli) (e.g. to manifest his
consent to that contract), but has failed to do so, the other party
may, under Section 64 of the Civil Code, sue him for a declaratory
judgment replacing such consent.
This provision states:
"A final judgment declaring that a given person is obliged to
make a specified declaration of will shall replace such
declaration."
5. Insolvency proceedings.
The Ordinance of the President of Republic of Poland of
24 October 1934 on Insolvency Law (as amended) sets out the rules
governing insolvency proceedings.
Section 1 of the Insolvency Law, insofar as relevant, provides:
"1. Any business enterprise which is unable to pay its debts
shall be declared insolvent.
...
3. Any public enterprise, cooperative ... [or] joint-stock
company shall be declared insolvent if its assets are not
sufficient to cover its liabilities."
According to Section 8 of the Insolvency Law proceedings relating
to an insolvency petition shall be instituted before the district
court, sitting as a panel of three judges, in whose jurisdiction the
debtor has its registered office.
Pursuant to Section 14 of the Insolvency Law, a court making an
insolvency order shall call on creditors to submit their claims within
a fixed time-limit, assign a so-called "judge-receiver" (who shall
conduct the subsequent insolvency proceedings, supervise a trustee's
actions and determine in which instances a trustee shall not act
without his prior permission) and appoint a trustee (who shall take
possession of the insolvent entity's property and, subject to certain
prior decisions of the judge-receiver, distribute it among creditors).
According to Section 60 of the Insolvency Law, a trustee alone
has the capacity to sue or to be sued in all proceedings concerning
claims against an insolvent estate.
COMPLAINTS
1. The applicants complain under Article 1 of Protocol No. 1 to the
Convention that the Olsztyn Public Notary's Office made, on 30 November
1989, a notarised agreement transferring their property to the company
"Centon" without the necessary verification of entries made in the
Olsztyn District Court Commercial Register.
2. They also complain under Article 1 of Protocol No. 1 to the
Convention that, on 28 May 1992, the Olsztyn District Court Commercial
Register made the entry concerning the increase in the share capital
of the company "Centon" which was based on untrue statements and was
inadmissible in law.
3. They further complain under Article 6 para. 1 of the Convention
about the unfairness of the proceedings relating to the amendment of
the entry made in the Olsztyn District Court Real Property Register,
submitting that the Olsztyn Regional Court and the Warsaw Court of
Appeal committed serious errors of fact and law in their judgments and
that they incorrectly assessed the evidence presented.
4. Under Article 13 of the Convention the applicants complain that
the Minister of Justice arbitrarily refused them leave to file an
extraordinary appeal to the Supreme Court against the judgments given
by the Olsztyn Regional Court and the Warsaw Court of Appeal in the
proceedings relating to the amendment of the entries made in the real
property register.
5. The applicants complain under Articles 6 and 13 of the Convention
and Article 1 of Protocol No. 1 to the Convention that the Olsztyn
District Prosecutor failed to institute criminal proceedings against
the members of the board of directors of the company "Centon".
6. Under Article 1 of Protocol No. 1 to the Convention they complain
that, regardless of numerous claims submitted by them to the Polish
courts, they are still being deprived of their right to recover their
property which was unlawfully acquired by the company "Centon".
7. Lastly, the applicants complain under Article 6 para. 1 of the
Convention that the proceedings relating to their application for the
entries made in the Olsztyn District Court Commercial Register to be
struck out of the register lasted for an unreasonably long time.
THE LAW
1. The applicants complain under Article 1 of Protocol No. 1 (P1-1)
to the Convention that the Olsztyn Public Notary's Office made, on 30
November 1989, a notarised agreement transferring their property to the
company "Centon" without the necessary verification of entries made in
the Olsztyn District Court Commercial Register. They also complain
under Article 1 of Protocol No. 1 (P1-1) to the Convention that, on 28
May 1992, the Olsztyn District Court Commercial Register made the entry
concerning the increase in the share capital of the company "Centon"
which was based on untrue statements and was inadmissible in law.
The Commission notes that both events complained of, which took
place on 30 November 1989 and 28 May 1992 respectively, occurred prior
to 10 October 1994, the date on which Protocol No. 1 to the Convention
entered into force with respect to Poland. The Protocol governs, for
each Contracting Party, only events subsequent to its entry into force
with respect to that Party.
It follows that this part of the application is inadmissible as
being incompatible ratione temporis with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2).
2. The applicants further complain under Article 6 para. 1
(Art. 6-1) of the Convention about the unfairness of the proceedings
relating to the amendment of the entry made in the Olsztyn District
Court Real Property Register, submitting that the Olsztyn Regional
Court and the Warsaw Court of Appeal committed serious errors of fact
and law in their judgments and that they incorrectly assessed the
evidence presented.
Article 6 para. 1 (Art. 6-1), insofar as relevant, provides:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair ... hearing ... by ... [a]
tribunal established by law."
The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties to the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its established
case-law (see e.g. No. 7987/77, Dec. 13.12.79, D.R. 18, pp. 31, 45;
No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).
The Commission further recalls that the admissibility and the
assessment of evidence are primarily a matter for regulation by
national law. As a rule, it is for the national courts to assess the
evidence before them, whereas it is the Commission's task to ascertain
whether the proceedings considered as a whole, including the way in
which the evidence was taken, were fair (see Eur. Court HR, Asch v.
Austria judgment of 26 April 1991, Series A no. 203, p. 10, para. 26).
In the present case the Commission finds no elements which would
indicate that the national courts went beyond their discretion as to
the assessment of the evidence presented in the course of the
proceedings complained of. Nor does it consider that the applicants
were prevented from advancing any arguments which they considered
important for the outcome of their case; the number of pleadings
submitted by the parties in the proceedings before the court of first
instance suggests that they were sufficiently able to put forward their
point of view on any questions of law and fact which might have arisen
in the civil dispute in question. Finally, assessing the proceedings
as a whole, the Commission finds no indication that they were unfairly
conducted in any other way.
It follows that this part of the application is inadmissible as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. Under Article 13 (Art. 13) of the Convention the applicants
complain that the Minister of Justice arbitrarily refused them leave
to file an extraordinary appeal to the Supreme Court against the
judgments given by the Olsztyn Regional Court and the Warsaw Court of
Appeal in the proceedings relating to the amendment of the entries made
in the real property register.
The Commission, noting that the applicants' complaint also
concerns the question of lack of access to the Supreme Court, which by
its nature falls within the scope of Article 6 para. 1 (Art. 6-1) of
the Convention cited above, has examined their complaint under Article
6 para. 1 and Article 13 (Art. 6-1+13) of the Convention read together.
Article 13 (Art. 13) of the Convention provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls that Article 6 para. 1 (Art. 6-1) of the
Convention embodies the "right to a court" of which the right to
access, that is the right to institute proceedings before a court in
civil matters, constitutes one aspect (see Eur. Court HR. Aydin v.
Turkey judgment of 25 September 1997, Reports of Judgments and
Decisions 1997-VI, p. 1894, para. 99).
On the other hand, Article 13 (Art. 13) of the Convention
guarantees the availability at the national level of a remedy to
enforce the substance of the Convention rights and freedoms in whatever
form they may happen to be secured in the domestic legal order (see,
Aydin v. Turkey judgment, loc. cit.).
In this context the Commission further recalls that neither
Article 6 para. 1 (Art. 6-1) nor Article 13 (Art. 13) of the Convention
do, however, guarantee the right to appeal or to a second level of
jurisdiction, the latter being recognised under Article 2 of Protocol
No. 7 (P7-2) only in respect of persons convicted of a criminal
offence. They do not, furthermore, require that there should be
several levels of jurisdiction. The Commission refers, in this respect,
to its established case-law (see, e.g. Nos. 10153/82, Dec. 13.10.86,
D.R. 49, p. 67; 10515/83, Dec. 2.10.84, D.R. 40, p. 258; 12275/86, Dec.
2.7.91, D.R. 70, p. 47; No. 12444/86 Comm. Report, 10.12.91 annexed to
Eur. Court HR. Pizzetti v. Italy judgment of 26 February 1993, Series A
no. 257, pp. 40-41, para. 41).
In the present case the applicants, who under Polish law were
entitled to - and did - lodge an appeal against the judgment given in
their case by the court of first instance, complain about the fact that
their further extraordinary appeal to the Supreme Court was not allowed
and, as a consequence, not examined by that court at the third level
of jurisdiction.
However, as the Commission has already observed, since no right
to appeal or to several levels of jurisdiction is guaranteed under the
Convention, a party to court proceedings cannot claim a Convention
right to extraordinary appellate remedies in the highest domestic court
against the final judgment given in his case, in particular in addition
to the normal appeals already available before the ordinary courts.
It follows that this part of the application is inadmissible as
being incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2).
4. The applicants further complain under Articles 6 and 13
(Art. 6, 13) of the Convention, and Article 1 of Protocol No. 1 (P1-1)
to the Convention that the Olsztyn District Prosecutor failed to
institute criminal proceedings against the members of the board of
directors of the company "Centon".
However, the Commission recalls that neither Article 6 (Art. 6)
nor any other provision invoked by the applicants guarantees a right
to have criminal proceedings instituted against third persons (No.
9777/82, Dec. 14.7.83, D.R. 34, p. 158; Nos. 29692/96 and 34612/97,
Dec. 22.10.97, unpublished).
It follows that this part of the application is inadmissible as
being incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2).
5. Under Article 1 of Protocol No. 1 (P1-1) to the Convention the
applicants also complain that, regardless of numerous claims submitted
by them to the Polish courts, they are still being deprived of their
right to recover their property which was unlawfully acquired by the
company "Centon".
However, the Commission is not required to decide whether or not
the facts submitted by the applicants in support of this complaint
disclose any appearance of a violation of the Convention as, according
to Article 26 (Art. 26) of the Convention, it "may only deal with the
matter after all domestic remedies have been exhausted".
In this respect the Commission notes that it is true that the
applicants have submitted various claims to the Polish courts, both in
relation to the amendment of entries made in the court real property
register and to the amendment of entries made in the court commercial
register. Also, since the company which was in possession of their
property became insolvent, they requested, on 19 May 1997, the judge-
receiver to order that their property be returned to them.
It further notes that, as early as 29 May 1992, a general meeting
of the shareholders of the company "Centon" passed a resolution
obliging the board of directors to conclude a notarised agreement with
the applicants under which the ownership of the real property in
question would be transferred back to them. Accordingly, the company's
executive organ was obliged to give a specific "declaration of will"
which, in case of its failure to do so, could have been replaced by a
judgment given under Section 64 of the Polish Civil Code, if the
applicants had sued the company for such a judgment. Moreover,
regardless of the fact that the company concerned had, in the meantime,
become insolvent, the trustee appointed in the relevant insolvency
proceedings could, and still can, be sued, according to Section 60 of
the Insolvency Law, in all proceedings relating to claims against the
insolvent estate, including a claim under Section 64 of the Polish
Civil Code.
The Commission therefore considers that the applicants still have
at their disposal a domestic legal channel enabling them to remedy the
situation complained of.
It follows that this part of the application must be rejected for
non-exhaustion of domestic remedies according to Article 27 para. 3
(Art. 27-3) of the Convention.
6. Lastly, the applicants complain under Article 6 para. 1
(Art. 6-1) of the Convention that the proceedings relating to their
application for the entries made in the Olsztyn District Court
Commercial Register to be struck out of the register lasted for an
unreasonably long time.
The Commission considers that it cannot, on the basis of the
file, determine the admissibility of this complaint and that it is
therefore necessary, in accordance with Rule 48 para. 2 (b) of the
Commission's Rules of Procedure, to give notice of the complaint to the
respondent Government.
For these reasons, the Commission,
DECIDES TO ADJOURN the examination of the applicants'
complaint that the proceedings relating to their
application for entries made in the Olsztyn District Court
Commercial Register to be struck out of the register lasted
for an unreasonably long time;
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy