AS TO THE ADMISSIBILITY OF
Application No. 28561/95
by Andrzej KITEL
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 January 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
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 8 July 1993 by
Andrzej KITEL against Poland and registered on 18 September 1995 under
file No. 28561/95;
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 applicant, a Polish citizen born in 1935, is a technician
residing in Pszczyna.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
a) Particular circumstances of the case
In 1951 the State took over possession of a property belonging
to the applicant's father, a brick-making plant located in Pszczyna.
In 1958 the property was nationalised. In 1960 the Minister of
Construction declared this in a decision. Subsequently the plant was
in the possession of the Katowice Construction Ceramics Plant
(Katowickie Przedsi*biorstwo Ceramiki Budowlanej).
In 1989 the plant was sold to a third party.
In 1990 the applicant requested the Minister of Industry to
institute reprivatisation proceedings and to set aside the
nationalisation decisions.
On 4 September 1991 the Minister of Industry informed the
applicant that administrative proceedings had been instituted in
accordance with Article 61 para. 4 of the Code of Administrative
Procedure under case-file number PM-Zr-254/91 in order to establish
whether the nationalisation decision had been lawful. The applicant
was requested to submit information as to the current legal and factual
situation of the property.
On 10 June 1992, in reply to a query from the President's Office,
to which the applicant had complained about the lack of progress in the
proceedings, the Ministry informed the applicant that the decision
would be issued before the end of October 1992.
On 22 December 1992, in reply to the Ombudsman's query as to the
progress in the proceedings, the Ministry informed him that the
applicant's case had been given priority. However, the decision had
not been pronounced in view of the fact that it had so far been
impossible to find in the State Archives a copy of the inventory of the
plant made at the time of its takeover by the State in 1951. This
document was of crucial importance for the decision to be taken.
Further efforts would be made to find it.
On 12 August 1994 the applicant complained to the Supreme Audit
Chamber about the lack of progress in the proceedings. He submitted
that the plant concerned had not met the nationalisation criteria as
it employed 35 persons, whereas only plants employing more than 50
persons per shift had been subject to nationalisation. He submitted
that the former owners had never signed or been served with a copy of
the inventory to which the Ministry referred in its letter of
22 December 1992.
On 18 July 1994 and on 1 July 1995 the applicant again complained
to the Ombudsman about the lack of progress in the proceedings. He
submitted that the entry in the land register relating to the property
disclosed that the State Treasury was still the owner of the plant.
b) Relevant domestic law
Article 155 of the Code of Administrative Procedure permits the
amendment or annulment of any final administrative decision at any time
where necessary in the general or individual interest if this is not
prohibited by specific legal provisions. In particular, Article 156
para. 1 states that a final administrative decision can be annulled if
it has been issued without a legal basis or contrary to applicable
laws.
COMPLAINTS
The applicant complains under Article 1 of the Protocol No. 1
that his right to enjoyment of possessions has been breached by the
failure of the Ministry of Industry to issue a decision setting aside
the nationalisation decisions of 1958 and 1960. The applicant argues
that the property concerned should not have been nationalised as it
did not meet the relevant criteria set out in the nationalisation laws.
THE LAW
The applicant complains under Article 1 of Protocol N° 1 (P1-1)
that his right to enjoyment of possessions has been breached by the
failure of the Ministry of Industry to issue a decision setting aside
the nationalisation decisions of 1958 and 1960.
Article 1 of Protocol No. 1 (P1-1) to the Convention, insofar as
relevant, reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law."
The Commission observes that Poland ratified Protocol No. 1 to
the Convention on 10 October 1994. It follows that the Commission is
competent to examine this complaint insofar as it relates to events
which occurred after that date.
The Commission recalls that, according to the Convention organs'
case-law, a person complaining of an interference with his property
must show that a property right existed (No. 7655-7657/76,
Dec. 4.10.77, D.R. 12, p. 111). On the other hand, Article 1 of
Protocol N° 1 (P1-1) to the Convention does not recognise any right to
become the owner of property (No. 11628/85, Dec. 9.5.86, D.R. 47,
p. 270).
The Commission further recalls that "possessions" within the
meaning of Article 1 of Protocol No. 1 (P1-1) can be either "existing
possessions" (Eur. Court HR, Van der Mussele v. Belgium judgment of
23 November 1983, Series A no. 70, p. 23, para. 48) or claims, in
respect of which the applicant can argue that he has at least a
"legitimate expectation" of obtaining effective enjoyment of a property
right (Eur. Court HR, Pine Valley Developments v. Ireland judgment of
29 November 1991, Series A No. 222, p. 23, para. 51; Pressos Compania
Naviera S.A. v. Belgium judgment of 20 November 1995, Series A No. 332,
p. 21, para. 31). Moreover, the Commission recalls that the Convention
does not guarantee a right to restitution of property (No. 25497/94,
Dec. 17.5.95, D.R. 85-A, p. 126).
It is clear that the present case does not concern any "existing
possessions" of the applicant. The property of the applicant's father,
his predecessor in title, was taken over by the State Treasury in 1951.
It was nationalised in 1958. The nationalisation decision was further
confirmed by the decision of the Minister of Construction in 1960. The
applicant has not been able to exercise any ownership rights over the
property.
It remains to be examined whether the applicant could have any
"legitimate expectation" of realising his claim to either restitution
of the property or to compensation. It is true that he contends that
the nationalisation decisions were in breach of the nationalisation
laws applicable at the relevant time. The applicant argues in
particular that the property concerned was not subject to
nationalisation as it did not meet the criteria set out in the
nationalisation laws. However, he has not substantiated this claim by
any relevant documents. Further, it does not transpire from any
documents submitted by the applicant that his right has been
acknowledged by any of the authorities concerned. It is true that the
Ministry of Industry, upon the applicant's request to set aside the
nationalisation decisions, instituted administrative proceedings.
However, these proceedings, which were instituted under the generally
applicable provisions of the Code of Administrative Procedure
pertaining to annulment of any unlawful administrative decision, were
intended simply to examine whether those decisions had been lawful.
The institution of such proceedings does not amount to a recognition
of the applicant's property rights.
The Commission further observes that, in any event, the applicant
did not exhaust applicable domestic remedies as he has not shown that
he lodged a complaint with the Supreme Administrative Court about the
failure of the administration to pronounce a final administrative
decision.
It follows that the applicant has not shown that he has any
relevant "existing possessions" or any legally recognised claims which
could be regarded as "legitimate expectations" of enjoying property
rights.
The application is therefore incompatible ratione materiae with
the provisions of the Convention and must be rejected under Article 27
para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy