AS TO THE ADMISSIBILITY OF
Application No. 28559/95
by Romuald RADWILLOWICZ
against Poland
The European Commission of Human Rights sitting in private on
14 October 1996, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
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 23 April 1995 by
Romuald RADWILLOWICZ against Poland and registered on 18 September 1995
under file No. 28559/95;
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 facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant, a Polish citizen born in 1940, is a retired
railway clerk, residing in Kolobrzeg.
Particular circumstances of the case
In 1943 the applicant's parents were expelled from their house
in Porsa, a locality which before 1939 had belonged to Poland, and
deported to the Soviet Union. After the Second World War the
applicant's father apparently settled in Great Britain. He abandoned
in the former eastern territories of Poland his property in Porsa.
In 1964 the applicant's father bequeathed all his estate to his
wife. Should she not survive him, the estate would be inherited by the
applicant. In 1967 the applicant's father died.
On 24 January 1991 the Kolobrzeg District Office informed the
applicant that his claim for compensation for the property abandoned
in the former eastern territories of Poland had been registered under
No. 82243/60/90. At the same time the Office required him to submit
missing documents to substantiate his claim, i.e. a repatriation
certificate in the name of the applicant's mother, a description of the
property concerned or a court judgment establishing the composition of
this property and a court decision to the effect that the applicant had
inherited her mother's estate. The applicant did not submit these
documents.
In a judgment of 29 May 1991 the Kolobrzeg District Court (S*d
Rejonowy w Kolobrzegu) declared that the applicant's mother had
inherited the estate of her late husband, the applicant's father.
On 16 November 1993 the applicant's mother donated to the
applicant the rights to compensation for the property abandoned in the
former eastern territories of Poland, which constituted a part of her
inheritance from the applicant's father.
In 1994 the applicant and his mother filed an action with the
Koszalin Regional Court (S*d Wojewódzki w Koszalinie), requesting that
the Court establish that the donation of the entitlement to
compensation for the property concerned to the applicant by his mother
had been effected in accordance with the law.
In a judgment of 27 April 1994 the Koszalin Regional Court
established that the real estate concerned constituted a joint marital
property of the applicant's mother and father and that this property
had been abandoned as a result of their deportation to the Soviet Union
in 1943. The applicant's action was rejected.
As the applicant did not lodge an appeal against this judgment,
the Court was not obliged to prepare grounds for it.
Subsequently the applicant complained to various administrative
and legislative authorities, claiming that his entitlement to
compensation be realised.
B. Relevant domestic law
Article 81 of the Land Administration and Expropriation Act of
29 April 1985 provides that the persons who had abandoned property in
the former eastern territories of Poland due to the Second World War
or their heirs are entitled to compensation therefor. This
compensation is to take the form of either real property (or a lease
for ninety-nine years) of the same value purchased from the State
Treasury or of deduction of the value of the property owned in the East
from the price of the property (or a lease for ninety-nine years)
purchased from the State Treasury.
Article 81 para. 5 of the same Act provides that the compensation
is conditional on the registration of the claim with the local
authority of the state administration not later than 31 December 1992.
Article 5 para. 1 of the Local Administration Act of 10 May 1990
provides that the property of the State possessed by the local State
administration is transferred to the relevant local municipality.
On 22 June 1989 the Supreme Court (S*d Najwyzszy) issued a
resolution in interpretation of Article 81 of the 1985 Act to the
effect that the circle of persons authorised to receive the
compensation included the owner of the abandoned property, all his
heirs or one of them designated by the others. A transfer of the
entitlement to other persons was not possible.
COMPLAINTS
The applicant complains that his claim for compensation for his
father's property abandoned in the former territories of Poland cannot
be satisfied. Articles 7, 17 and 26 of the Convention are invoked.
THE LAW
The applicant complains that his claim for compensation for his
father's property abandoned in the former territories of Poland cannot
be satisfied. The Commission has examined this complaint under
Article 1 of Protocol No. 1 (P1-1) Convention.
Article 1 of Protocol No. 1 (P1-1) to the Convention 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 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 first observes that in a judgment of 27 April 1994
the Koszalin Regional Court rejected the action of the applicant and
his mother, who claimed that the Court establish that the donation of
the entitlement to compensation for the property concerned to the
applicant had been effected in accordance with the law. The applicant
did not request that written grounds of this judgment be prepared and
did not lodge an appeal with the second instance court. He did not,
therefore, comply wit the requirements as to exhaustion of domestic
remedies available to him under Polish law as set out in Article 26
(Art. 26) of the Convention. However, even assuming that the applicant
could be absolved from the obligation of exhausting domestic remedies
and that his complaint cold be considered notwithstanding the fact that
the above judgment was pronounced before 10 October 1994, i.e. before
the date on whcihc Poland ratified Protocol No. 1 to the Convention,
the application would have to be declared inadmissible for the
following reasons:
The Commission recalls that, according to the Convention organs'
case-law, "possessions" within the meaning of Article 1 of Protocol
No. 1 (P1-1) extend to a "legitimate expectation" to be able to have
an effective enjoyment of a property right (Eur. Court H.R., 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). The
Commission further recalls that a person complaining of an interference
with his property must show that such right existed (No. 7694/76, Dec.
14.10.77, D.R. 12 p. 131, No. 23131/93, Dec. 4.3.96, unpublished, No.
25497/94, Dec. 17.5.96, unpublished).
However, in the present case the Commission considers that in the
period after 10 October 1994 the applicant cannot be regarded as having
had a "legitimate expectation" under Polish law. According to Article
81 of the Land Administration and Expropriation Act, the persons who
enjoy the entitlement to compensation are either owners or their heirs
or one of the heirs designated by others. The applicant is neither an
owner of the property concerned nor an heir of the owner, his deceased
father. It is true that the applicant's mother purported to donate her
rights to compensation to the applicant. However, the decision of the
Supreme Court of 22 June 1989 clearly stated that the law does not
permit a transfer of the entitlement provided for in Article 81 of the
1985 Act to other persons. Moreover, the judgment of the Koszalin
Regional Court of 27 April 1994 did not uphold the applicant's claim
that the donation by his mother of the entitlement at issue be declared
valid. Therefore tha applicant has not shown that under Polish law he
possesses a property right, as the donation could not have resulted in
an effective transfer of the entitlement to him. Accordingly the
applicant cannot invoke Article 1 of Protocol No. 1 (P1-1) to the
Convention.
It follows that this part of the application must be declared
inadmissible as being incompatible ratione materiae with the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy