AS TO THE ADMISSIBILITY OF
Application No. 33753/96
by Adam OBODYNSKI
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 July 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
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 3 January 1996 by
Adam OBODYNSKI against Poland and registered on 13 November 1996 under
file No. 33753/96;
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 1947, is retired and
resides in Warsaw.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
Particular circumstances of the case
In November 1984 the applicant lodged a civil action with the
Warszawa-Praga District Court (S*d Rejonowy), claiming repossession of
an apartment which he co-owned with his wife, and from which he had
allegedly been unlawfully expelled in January 1984.
In a judgment of 11 February 1994 the Warszawa-Praga District
Court ordered the repossession of the apartment co-owned by the
applicant from which he had been expelled by his wife in 1984. On
29 September 1994 the Warsaw Regional Court (S*d Wojewódzki) confirmed
the judgment which, accordingly, became final.
Subsequently, upon the defendant's request, the Minister of
Justice filed an extraordinary appeal against this judgment with the
Supreme Court (S*d Najwyzszy). On 7 July 1995 the Supreme Court set
aside the impugned judgment and dismissed the applicant's claim,
considering that the action for repossession had become devoid of
purpose as in 1987 the defendant had sold the apartment concerned.
Relevant domestic law
Article 344 of the Civil Code provides that a possessor can claim
repossession before a court against a person who has deprived him of
possession, regardless of whether he is a bona fide possessor or
whether the factual possession is in conformity with the law.
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 to the
Convention that the judgment of the Supreme Court by quashing the
judgment ordering the repossession deprived him of his apartment and
thus of his property.
He further complains under Article 6 of the Convention that the
proceedings lasted ten years and eight months and thus exceeded a
reasonable time.
THE LAW
1. The applicant complains under Article 1 of Protocol No. 1 (P1-1)
to the Convention that the judgment of the Supreme Court deprived him
of his property.
Article 1 of Protocol No. 1 (P1-1) to the Convention reads:
"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."
The Commission observes that in the present case the applicant
was involved as a plaintiff in the civil proceedings, claiming
repossession of the apartment which he had co-owned with his wife.
The Commission further notes that although the refusal to order
repossession of the apartment was pronounced by a court judgment and
therefore by an act of a State organ, it was based on the provisions
of the Civil Code. The Supreme Court quashed the final judgment
ordering the repossession and dismissed the applicant's claim,
considering that the action for repossession had become devoid of
purpose as the defendant had sold the property in 1987 and it was
therefore no longer in her possession; thus the legal conditions under
which an action for repossession could be successful were not met. The
Commission recalls its case-law, according to which judicial decisions
under legal provisions governing private law relations between
individuals and which, provide for one person to surrender a possession
to another, do not infringe the right to peaceful enjoyment of
possessions (No. 12462/86, Dec. 13.7.87, D.R. 53, p. 234). The
impugned judgment, stemming from general civil law rules governing the
protection of factual possession and the legal requirements under which
such protection can be granted by the courts cannot be considered
contrary to Article 1 of Protocol No. 1 (P1-1).
The Commission accordingly does not find that there has been any
infringement of the applicant's right to the peaceful enjoyment of his
possessions or that he has been deprived of his possessions in breach
of Article 1 of Protocol No. 1 (P1-1).
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains under Article 6 (Art. 6) of the
Convention that the repossession proceedings exceeded a reasonable
time.
The Commission recalls that Poland recognised the competence of
the Commission to receive individual applications "from any person,
non-governmental organisation or group of individuals claiming to be
a victim of a violation of the rights recognised in the Convention
through any act, decision or event occurring after 30 April 1993". The
Commission therefore considers that the period to be considered begins
only on 1 May 1993, when Poland's recognition of the right of
individual petition took effect (cf. Eur. Court HR, Foti and others v.
Italy judgment of 10 December 1982, Series A no. 56, p. 18, para. 53).
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
Rules of Procedure, to give notice of this complaint to the respondent
Government.
For these reasons, the Commission,
DECIDES TO ADJOURN the examination of the applicant's complaint
concerning the length of the civil proceedings,
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy