AS TO THE ADMISSIBILITY OF
Application No. 33230/96
by Jan PELKA and others
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 13 September 1996
by Jan PELKA and others against Poland and registered on
27 September 1996 under file No. 33230/96;
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 facts of the case, as submitted by the applicants, may be
summarised as follows:
The applicants are five Polish citizens. J. Pelka and L. Tarwid
were born in 1908 and 1918. They are retired and reside in Warsaw. W.
Jankowski was born in 1927. He is retired and resides in Gdynia. B.
Kurnatowska was born in 1929 and resides in Warsaw. P. Szczesniewski,
born in 1944, is a lawyer and resides in Warsaw.
In 1949 the local authorities, acting in the name of the State
Treasury, took over the property of the applicants' predecessor in
title, located in Gdynia. Later the property was transferred to the
Navy.
In 1950 the property was nationalised by decision of the
Presidium of the Regional Council (Prezydium Wojewódzkiej Rady
Narodowej).
In 1958 the Navy informed the applicants that their property had
been nationalised.
In 1963 the Nationalisation Appeals Board of the Ministry of
Internal Affairs (Komisja Odwolawcza do spraw wywlaszczen przy
Ministrze Spraw Wewn*trznych) dismissed the applicants' appeal against
the 1950 decision.
In 1991 the applicants made a request to the Ministry of
Ownership Transformation (Ministerstwo Przeksztalcen Wlasnosciowych)
for restitution of the property concerned. In the same year the
applicants requested the Navy to restore the property. Subsequently
the Navy refused to make restitution, relying on the nationalisation
decision of 1950 and the dismissal of the applicants' appeal of 1963.
On 6 June 1991 the applicants requested the Minister of Planning
and Construction (Ministerstwo Gospodarki Przestrzennej i Budownictwa)
to restore the property.
On 4 May 1992 the Gdynia municipality refused to restore the
property.
On 26 November 1993 the Minister of Planning and Construction,
in reply to the applicant's letter of 6 June 1993, sent the case-file
to the Gdynia City Hall.
On 4 January 1994 one of the applicants (J.P.) submitted a
request to the Gdansk Governor (Wojewoda Gdanski) to have the 1992
decision of the Gdynia municipality set aside.
On 31 May 1994 the Governor set aside the decision of the Gdynia
municipality of 4 May 1992 and ordered that the case be reconsidered.
The Governor considered that the parties had not participated in the
proceedings in 1992 and that an administrative hearing should have been
held in order to establish the manner in which the property was being
used by the Navy.
On 23 March 1994 the applicants lodged a request with the
Regional Office (Urz*d Rejonowy) to have the 1950 decision of
nationalisation declared null and void as having been in flagrant
breach of the nationalisation laws applicable at that time.
On 7 August 1995 the Regional Office informed the parties that
administrative proceedings had been commenced to examine the lawfulness
of the nationalisation decision of 1963 and that the date of the visit
of the property had been fixed.
On 28 August 1995 the Navy guard officer at the property did not
allow either the applicants or the representative of the Regional
Office to enter the property.
On 23 August 1995 the Gdansk Governor transmitted the applicant's
request of 23 March 1994 to have the nationalisation decision declared
null and void to the Minister of Planning and Construction.
On 15 September 1995, in reply to an enquiry by the District
Office of 6 September 1995, the Navy declared that the property was
necessary for the purposes of national defence.
On 22 September 1995 the applicants and a representative of the
Regional Office were allowed to enter the property and to see it from
the outside.
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 applicants complain under Article 1 of the Protocol N° 1 that
their right to enjoyment of possessions has been breached by the
failure of the administrative authorities to declare the
nationalisation decision of 1950 null and void. The applicants contend
that the property concerned should not have been nationalised as it did
not meet the relevant criteria set out in the nationalisation laws
applicable at the material time.
THE LAW
The applicants complain under Article 1 of Protocol N° 1
(P1-1) that their right to enjoyment of possessions has been breached
by the failure of the competent authorities to declare the
nationalisation decision of 1950 null and void.
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 such right existed (No. 7655-7657. Dec. 4.10.77,
D.R. 12, p. 111). Moreover, 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).
The Commission further recalls that "possessions" within the
meaning of Article 1 of Protocol No. 1 (P1-1) may 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).
It is clear that the present case does not concern any "existing
possessions" of the applicants. The property of the applicants'
predecessors in title was taken over by the State Treasury in 1949. It
was further nationalised in 1950. Neither the applicants nor their
predecessor in title have been able to exercise any ownership right
over the property concerned.
It remains to be examined whether the applicants could have any
"legitimate expectation" of realising their claim to restitution of
property. It is true that they contend that the nationalisation
decision was in breach of the nationalisation laws applicable at the
relevant time and should therefore be declared null and void.
However, this claim has not been substantiated. Further, it does not
transpire from the case-file that their claim has been acknowledged by
any of the authorities concerned. It is true that the Gdynia Regional
Office, upon the applicants' request to declare the nationalisation
decisions null and void in accordance with Article 155 of the Code of
Administrative Procedure, instituted administrative proceedings.
However, these proceedings were intended only to examine whether those
decisions had been lawful. The institution of such proceedings does
not amount to a recognition of the applicants' property rights.
The Commission further observes that, in any event, the
applicants did not exhaust applicable domestic remedies as they have
not shown that they lodged a complaint about the failure of the
administration to issue a final administrative decision with the
Supreme Administrative Court.
It follows that the applicants have not shown that they have any
relevant "existing possessions" or any legally recognised claims which
could be regarded as "legitimate expectations" of enjoying property
rights. Moreover, the Convention does not guarantee a right to
restitution of property (cf., mutatis mutandis, No. 23131/93, Dec.
4.3.96, D.R. 85-A, p. 65, No. 25497/94, Dec. 17.5.95, D.R. 85-A,
p. 126).
The application is therefore incompatible ratione materiae with
the provisions of the Convention and must be rejected under Article 27
para. 2 (Art. 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