AS TO THE ADMISSIBILITY OF
Application No. 26612/95
by Anna POLETEK
against Poland
The European Commission of Human Rights sitting in private on
27 November 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. H.C. KRÜGER, Secretary to the Commission
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 December 1994
by Anna POLETEK against Poland and registered on 3 March 1995 under
file No. 26612/95;
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 Canadian citizen born in 1920, is retired. She
resides in Sudberg in Canada. Before the Commission she is represented
by Mr. Zbigniew Cichon, a lawyer practising in Kraków.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
1. Particular circumstances of the case
In 1976 the applicant's brother S.P. had obtained a decision of
the Biskupice Mayor declaring that by virtue of the Agricultural
Property Regulation Act of 1971 ("the 1971 Act") he had become the
owner of a plot of land located in S.
On 1 September 1991 the applicant requested the Kraków Governor
(Wojewoda) to institute proceedings in order to annul this decision
according to Article 155 et seq. of the Code of Administrative
Procedure. She submitted that it was unlawful as the plot had belonged
to their parents who had died intestate. Thus, she had been entitled
to inherit half of the plot. In order to obtain a decision in his
favour her brother had wrongly informed the administrative authorities
that she had donated her property right to him, whereas she had never
done so. Moreover, the 1971 Act prohibited bestowing on Polish
agricultural users land belonging to aliens. As in 1976 she had
already had Canadian citizenship, her land could not have lawfully been
bestowed on her brother.
On 9 March 1992 the Governor discontinued the proceedings. He
considered that since 1 January 1992 the State Treasury Land Property
Act of 19 October 1991 ("the 1991 Act") specifically prohibited the
institution or continuation of proceedings in order to annul decisions
on ownership of agricultural real property which had been issued in
accordance with the 1971 Act.
The applicant appealed to the Minister of Agriculture against the
decision to discontinue the proceedings. She submitted that it was
unlawful as it breached Article 7 of the Constitution, guaranteeing the
enjoyment of private property. She contended that the decision was in
breach of Article 6 of the Convention as it denied her access to court.
She indicated that whereas the 1991 Act expressly excluded access to
court in such cases as from 1 January 1992, she had instituted
proceedings on 9 September 1991. Had the authorities decided her case
more speedily, she would have obtained a decision on the merits. She
argued that she should not be penalised for the delay on the part of
the authorities in deciding her case.
On 31 August 1993 the Minister of Agriculture upheld the
Governor's decision of 9 March 1992. He indicated that, in accordance
with Article 63 of the 1991 Act, the general provisions of the Code of
Administrative Procedure concerning amendment or annulment of final
administrative decisions did not apply to decisions confirming the
ownership of agricultural real property issued in accordance with the
1971 Act.
The applicant filed an appeal to the Supreme Administrative Court
(Naczelny S*d Administracyjny), complaining that she was deprived of
access to court. She relied, inter alia, on Article 6 para. 1 of the
Convention.
On 24 November 1994 the Supreme Administrative Court dismissed
the applicant's appeal. The Court considered that its only task was
to examine whether administrative decisions were lawful. In the
present case the Minister, in deciding that the lawfulness of the 1976
decision could not be examined, had properly applied Article 63 of the
1991 Act. The Court also noted that, according to a decision of the
Supreme Court, this provision could not be interpreted as opening a
possibility to file an action with a civil court against a decision on
ownership of property in accordance with the 1971 Act. Thus, no
judicial or administrative remedy was available against the decision
at issue.
2. Relevant domestic law and practice
Article 155 of the Code of Administrative Procedure of 1960
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,
a final administrative decision can be annulled if it has been issued
by an authority which had no jurisdiction or without a legal basis or
contrary to the applicable law.
Article 63 of the State Treasury Land Property Act of
19 October 1991 provides that the general provisions of the Code of
Administrative Procedure concerning amendment or annulment of final
administrative decisions do not apply to decisions confirming the
ownership of agricultural real property issued in accordance with the
Agricultural Property Regulation Act of 1971.
A decision of the Supreme Court of 30 June 1992 states that
Article 63 of the State Treasury Land Property Act does not confer a
right to claim before a civil court that such decisions are invalid
(decision III CZP 73/92).
COMPLAINTS
The applicant complains under Article 6 of the Convention that
she was denied access to court. She submits that the State Treasury
Land Property Act of 19 October 1991 expressly deprived her of any
possibility of having her case examined by a court. She maintains that
the original decision of 1976 was evidently unlawful as it had
transferred property owned by her as an alien to her brother. She
further submits that the 1991 Act came into force when the proceedings
were already pending and that she should not be penalised for the delay
on the part of the authorities in deciding the case. She submits that
in principle the Code of Administrative Procedure allows institution
of proceedings in order to annul any final administrative decision.
She maintains that there was no reasonable justification for excluding
such proceedings with regard to decisions concerning agricultural
property.
The applicant further complains under Article 6 para. 1 of the
Convention that the proceedings exceeded a reasonable time within the
meaning of this provision. She submits that the proceedings concerned
only points of law, that no evidence had to be taken during the
proceedings and that therefore the decisions should have been taken
more speedily.
The applicant also complains under Article 1 of Protocol No. 1
that as a result of denial of access to court she was deprived of her
property rights.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention that she was denied access to court. She submits that the
State Treasury Land Property Act of 19 October 1991 expressly deprived
her of any possibility of having her case examined by the court.
Article 6 (Art. 6) of the Convention states, insofar as relevant:
"In the determination of his civil rights and obligations (...)
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law."
The Commission observes that in the present case the legislation
at issue, i.e. the 1991 State Treasury Land Property Act, came into
force on 1 January 1992 as regards non-availability of judicial review
in the cases arising out of the application of the Agricultural
Property Regulation Act of 1971. It is true that the 1991 Act had
procedural aspects in that it expressly excluded access to court in
such cases. However, it also affected the applicant's situation in
that it ultimately extinguished any possible claim to property of the
land in question that the applicant might have had until 1 January
1992. This was confirmed by the Kraków Governor's decision of 9 March
1992. Accordingly, the applicant ceased to have any arguable civil
right at the time when this decision was taken (cf. the findings below
concerning the applicant's complaint under Article 1 of Protocol No.
1) (P1-1). 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".
It follows that this part of the application is incompatible
ratione temporis with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains under Article 6 para. 1
(Art. 6-1) of the Convention that the proceedings exceeded a reasonable
time within the meaning of this provision.
The Commission's competence to examine individual petitions
against Poland became effective on 1 May 1993. The Commission
therefore concludes that insofar as the applicant complains about the
events prior to that date, this part of the application is outside the
competence ratione temporis of the Commission, and therefore
incompatible with the provisions of the Convention within the meaning
of Article 27 para. 2 (Art. 27-2).
As regards the occurrences after 30 April 1993, the Commission
recalls that Article 6 (Art. 6) is not applicable to proceedings
concerning the recognition of a "right" which has no legal basis in the
State in question (No. 12763/87, Dec. 14.7.88, D.R. 57 p.216). The
Commission notes that the applicant ceased to have any arguable civil
right at the latest on 9 March 1992. 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) of the
Convention.
3. The applicant also complains under Article 1 of the Protocol
No. 1 (P1-1) that as a result of denial of access to court she was
deprived of her property rights.
The Commission recalls the Convention organs' case-law, according
to which a person complaining of an interference with his right to
property must show that such a right existed (No. 12154/86, Dec.
12.10.88, D.R. 58, p. 62). Moreover, the guarantee of the property
rights set out in the second sentence of para. 1 of Protocol No. 1 to
the Convention is aimed only at deprivation of property, and not at
regulation by private law of the rights of private individuals (No.
13021/87, Dec. 8.9.88, D.R. 57, p. 268). In the present case the
applicant's parents died intestate. In 1976 the applicant's brother
obtained a decision declaring that he had become owner of a plot of
land belonging to the estate of their parents. From 1976 to 1991 the
applicant failed to take any steps in order to secure the rights to
which she claims she would have been entitled by inheritance, and the
State Treasury Land Property Act deprived her of the possibility of
taking the matter to the court. The Commission considers that the
applicant has not therefore shown that her property right in question
existed.
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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy