AS TO THE ADMISSIBILITY OF
Application No. 25696/94
by Maria KUCZYNSKA
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
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
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 21 March 1994 by
Maria KUCZYNSKA against Poland and registered on 17 November 1994 under
file No. 25696/94;
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 1955, is a pensioner
residing in Poznan.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
Particular circumstances of the case
In 1975 the applicant opened a housing savings account in the
State Savings Bank (Panstwowa Kasa Oszcz*dnosci) and became a member
of a housing cooperative in Poznan.
On 4 May 1994 the applicant requested the Supreme Court (S*d
Najwyzszy) to make an exception from the relevant legal provisions and
to allow that she be paid her housing savings at the State Savings Bank
reassessed so as to offset effects of inflation and a housing award so
reassessed (see Relevant domestic law) as she was in a very difficult
financial situation.
In a letter of 23 May 1994 the Supreme Court informed the
applicant that it lacked competence to deal with her request as it was
not a party to the bank account contract. It was only the State
Savings Bank which was competent to take any decisions as to any
exceptions or modifications to be made as regards the execution of the
contract of the housing savings account and the applicant's rights
resulting therefrom.
On 30 May 1994 the applicant requested the State Savings Bank to
pay her the reassessed sum of her savings and of the housing award.
In a letter of 23 June 1994 the State Savings Bank informed the
applicant that under relevant legislation the housing award could only
be granted to persons who had complied with the requirements set forth
by the Council of Ministers' order. Persons who did not comply with
those requirements, i.e. who had not bought or built an apartment or
a house, were only entitled to reimbursement of their housing savings
with interest. The regulations in force did not provide for an
entitlement to receive the reassessed savings.
Relevant domestic law
Under the Council of Ministers' order of 22 June 1993 the persons
who have accumulated savings on the housing savings accounts in the
State Savings Bank opened before 23 October 1990, which had remained
opened for not shorter than five years, were entitled to housing award
if they had bought or built a house or apartment or adapted non-housing
space to housing purposes. It was the State Treasury which financed
those payments and technically they were to be carried out by the State
Savings Bank.
In its resolution of 29 July 1993 the Supreme Court decided that
under the provisions of the Civil Code as amended in 1990 the housing
savings were not subject to reassessment by the State Treasury which
would offset the results of inflation. In taking this decision the
Court had regard to the provisions of the Civil Code pertaining to a
possibility of reassessment of pecuniary obligations in view of
inflation. These provisions clearly excluded such a possibility in
respect of sums deposited on bank accounts.
As regards the housing savings awards, the Supreme Court further
decided that those awards were not subject to reassessment either. The
Court observed, inter alia, that the problem concerned approximately
five million citizens who had accumulated housing savings. A
reassessment of the housing awards for all the persons concerned by the
State Treasury would not be economically feasible as it would put an
undue burden on the state budget. The Court further observed that, in
any event, the Council of Ministers' order of 22 June 1993 provided for
a partial reassessment of such awards in the circumstances set forth
therein.
COMPLAINTS
The applicant complains in substance under Article 1 of Protocol
No. 1 to the Convention that under legislation in force she can only
obtain from the savings bank her savings accumulated from 1975 with
interest and is not entitled to obtain the housing award to which are
entitled the persons who have built or bought an apartment or a house.
She also complains that her savings are not subject to reassessment
which would offset the effects of inflation and as a result, the sum
to which she is entitled is ridiculously small and is in no proportion
to the actual prices of houses or apartments. She complains that she
had opened her housing savings account in 1975, acting on assumption
that she would obtain an apartment within the framework of the State-
supported housing cooperatives scheme, but she did not obtain it.
She further complains that the Supreme Court's resolution of
29 July 1993 deprived her of access to a court competent to examine her
claim to receive the housing award and a reassessed sum of her savings.
THE LAW
1. The applicant complains in substance under Article 1 of Protocol
No. 1 (P1-1) that under legislation in force she cannot obtain either
a reassessed sum of her housing savings or the housing award.
Article 1 of Protocol No. 1 (P1-1) provides:
"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 preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it
deems necessary to control the use of property in
accordance with the general interest or to secure the
payment of taxes or other contributions or penalties."
2. The Commission observes that Poland ratified Protocol No. 1 to
the Convention on 10 October 1994. It is true that the legislation
referred to by the applicant was enacted before that date. However,
the Commission considers that this legislation created a continuing
situation in that it established entitlements for persons who had
accumulated savings on the housing savings accounts in the State
Savings Bank and this legal situation remains in force. Therefore the
present application cannot be declared inadmissible as being
incompatible ratione temporis with the Convention.
3. Under Article 26 (Art. 26) of the Convention, the Commission may
only deal with a matter after all domestic remedies have been
exhausted.
The Commission recalls its case-law according to which an
applicant is excused from pursuing a domestic remedy if he shows that
on the basis of well-established case-law it would be of no avail (No.
11945/84, Dec. 12.3.87, D.R. 51, p. 186; No. 10027/82, Dec. 5.12.84,
D.R. 40, p. 100).
In the present case the applicant has at her disposal a civil
action against the State Savings Bank in which she could have claimed
payments of the reassessed sum of her savings and of the housing award.
However, the Commission considers that in the light of the relevant
legislation and of the Supreme Court's resolution of 29 July 1993, her
action would clearly have been bound to fail. In these circumstances,
the applicant should be exempted from an obligation to exhaust this
remedy.
The application cannot, therefore, be declared inadmissible for
non-exhaustion of domestic remedies within the meaning of Article 26
(Art. 26) of the Convention.
4. As regards the substance of the complaint, the Commission
observes that the legislation complained of provided for specific
measures in order to safeguard certain pecuniary rights of the persons
possessing the housing savings account. These measures comprised an
entitlement to the housing award to the persons who have built or
bought a house or an apartment. The persons who were not entitled
thereto could obtain a reimbursement of their housing savings with
interest. That legislation was enacted as in the light of the general
economic situation of the State and, in particular, the economic
transition, it had become impossible to secure housing for all persons
within the framework of the former State-supported cooperative system.
Under this legislation the applicant is entitled to obtain the sum of
her savings, accumulated from 1975, with interest. The Commission
observes that the applicant was not deprived of her possessions within
the meaning of the first paragraph of Article 1 of Protocol No. 1
(P1-1) to the Convention, nor did the State exercise "control of
property" in her regard.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
Insofar as the applicant complains that she did not obtain an
apartment within the framework of the State-supported cooperative
housing system, this complaint is incompatible ratione temporis with
the Convention in respect of events preceding 10 October 1994, the date
on which Poland ratified Protocol No. 1 to the Convention. As regards
events after that date, the Commission recalls that Article 1 of
Protocol No. 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). It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
5. The applicant further complains that the Supreme Court's
resolution of 29 July 1993 deprived her of access to a court competent
to examine her claim to receive the reassessed sum of her housing
savings at the State Savings Bank and the housing award.
The Commission observes that the resolution of the Supreme Court
concerns only the substantive claims of persons in situations similar
to the applicant's and does not limit or exclude access to civil court
as regards claims of persons who had opened the housing savings
accounts. It remained open to the applicant to pursue her claim for
the reassessed sum of her housing savings and the housing award before
a civil court, had she wished to do so. It is true that in the light
of the relevant legislation and the Supreme Court's resolution the
applicant's action would have been bound to fail. However, this
resolution does not have any bearing on access to court within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
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