AS TO THE ADMISSIBILITY OF
Application No. 30641/96
by Jadwiga SLOWIK
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 April 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
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 11 January 1996
by Jadwiga SLOWIK against Poland and registered on 26 March 1996 under
file No. 30641/96;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on 10 May
1997 and the observations in reply submitted by the applicant on
18 June 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Polish citizen born in 1914, is retired and
resides in Warsaw.
The facts of the case, as submitted by the parties, may be
summarised as follows:
a) Particular circumstances of the case
In November 1945, by virtue of the Decree on Real Property in
Warsaw of 26 October 1945, all real property located in Warsaw was
nationalised.
In 1948 the Liquidation Office (Urz*d Likwidacyjny) lodged an
application, pursuant to Article 7 of the October 1945 Decree on Real
Property in Warsaw, for ownership for a limited period ("wlasnosc
czasowa") of a plot located in Warsaw at Pi*kna Street to be awarded
to the former owners, Mr and Mrs K., who had been killed in the Warsaw
ghetto.
In 1953 the Warsaw City Council refused to award title to the
property to Mr and Mrs K., considering that the application had not
been submitted in conformity with Article 7 of the 1945 Decree.
On 4 December 1991 the Warsaw District Court (S*d Rejonowy)
declared that the applicant inherited the estate of Mr and Mrs K., who
had been killed in a German concentration camp in 1942. Their property
included the plot located at Pi*kna Street.
On 20 December 1991 the applicant requested the Minister of
Planning and Construction to invalidate the 1953 refusal to grant the
property for a limited period to the former owners of the plot. She
submitted that the decision was in breach of Article 7 of the 1945
Decree. In particular, there had been no grounds for refusal as the
plot had not been designated for any public use.
On 22 December 1991 the applicant requested the Warsaw-Centre
District Office (Urz*d Dzielnicy Warszawa-Sródmiescie) to bestow on her
a right to perpetual use of the property concerned.
On 6 May 1992 the Minister of Planning and Construction declared
the 1953 decision null and void on the ground that it had been wrong
in establishing that no application for award of ownership for a
limited period had been lodged. In fact, such an application had been
lodged in 1948 by the Liquidation Office.
On 9 June 1992, upon the applicant's request, the District Court
decided to strike out the entry in the land register which certified
that the State Treasury was the owner of the plot. As a result, the
relevant entry was amended to the effect that Mr and Mrs K. remained
the owners.
On 9 December 1992 the Mayor of Warsaw-Centre refused to award
the applicant the right to perpetual use of the plot. The applicant
lodged an appeal with the Mayor of Warsaw against this decision.
On 28 April 1993 the Mayor of Warsaw (Prezydent m. st. Warszawy)
set aside the impugned decision and ordered that the case be
reconsidered. On 15 December 1993 the Mayor of Warsaw ordered that
the case be transferred to the Warsaw-Wola District Office (Zarz*d
gminy) on the ground that the Warsaw-Centre District Office lacked
jurisdiction to deal with it. This was so because the Warsaw-Centre
District Office, when pronouncing the decision on the applicant's
request to be awarded the right of perpetual use of the land, would be
acting as a party to the proceedings as the municipality owned the land
at issue. At the same time, it would be acting as the decision-making
administrative authority.
By a decision of 11 March 1994 the Warsaw-Wola District Office
(Zarz*d dzielnicy Warszawa-Wola) awarded the right to perpetual use of
the plot to the applicant.
On 17 June 1994 the Mayor of Warsaw rejected an appeal against
the decision of 11 March 1994, lodged by the Mayor of the Warsaw-
Centre, on the ground that the latter was not a party to the
proceedings. It was the District Office which, under Article 82 para.
2 of the Law on Land Administration and Expropriation of 1985, was
competent to represent the municipality in its capacity as the owner
of the land in cases concerning decisions on awarding the right to
perpetual use to individuals. Accordingly, the decision became final.
On 29 November 1994 the Mayor of Warsaw-Centre requested the
Municipal Appeal Board to declare the decision of 11 March 1994 null
and void. It was argued that the impugned decision was in breach of
Article 7 of the Decree on Real Property in Warsaw of 26 October 1945.
This Article required that an application for award of ownership for
a limited period ("wlasnosc czasowa") be submitted by the owners. In
the present case such an application had been submitted in 1948.
However, it had not been submitted by Mr and Mrs K., but by the
Liquidation Office who lacked competence to do so. It was further
argued that the decision should be declared null and void by virtue of
Articles 155 and 156 of the Code of Administrative Procedure.
On 17 February 1995 the Municipal Appeal Board declared that the
decision of 11 March 1994 was null and void as not being in conformity
with the law. The Board considered that the Liquidation Office had
indeed lacked competence to submit the request on behalf of Mr and
Mrs K.
The applicant lodged an appeal with the Supreme Administrative
Court (Naczelny S*d Administracyjny). She submitted that the decision
of 11 March 1994, which had granted her a property right, was final and
not subject to any appeal in the normal course of the proceeedings.
On 7 July 1995 the Supreme Administrative Court dismissed the
applicant's appeal on the ground that the 1948 application had not been
submitted by persons entitled to do so under Article 7 of the 1945
Decree, i.e. the owners or their legal successors having been in de
facto possession of the land when lodging the application. The
Liquidation Board had not been competent to lodge this application.
Therefore the 1953 decision to award to Mr and Mrs K. ownership limited
in time should not have been set aside in 1992. In conclusion, the
decision of 11 March 1994 had been based on the assumption that the
applicant, as a legal successor of Mr and Mrs K., was entitled to
obtain the right to perpetual use of the land concerned. This decision
was in breach of the law and as such had to be set aside.
The judgment was served on the applicant's lawyer on 13 September
1995.
By a decision of 12 February 1996 the Mayor issued a permit for
a third party to install a parking for twenty places on the plot
concerned.
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 provisons. In particular, pursuant to
Article 156, a final administrative decision is subject to annulment
if it has been issued by an authority which had no jurisdiction, or
without a legal basis, or contrary to the applicable law.
Article 160 of the Code of Administrative Procedure enables
persons who have sustained a loss as a result of a final administrative
decision being declared null and void pursuant, inter alia, to Article
156, to submit a compensation claim to the administrative authority
which quashed this decision, and this within three years from the date
on which the decision on annulment became final. A decision in respect
of a compensation claim can be appealed against to a civil court.
The right to perpetual use of land which is owned by
municipalities is regulated in Book Two of the Civil Code: Property and
Other Rights In Rem, Title Two: Right to Perpetual Use. Pursuant to
the relevant provisions, this right consists of an entitlement to
exclusive use, by an individual or other legal entity, of land owned
by a municipality or by the State for ninety-nine years against payment
of certain rates, paid every year. A person having this title to the
land can construct buildings thereon of which he will be the owner.
An administrative decision of a municipality to confer the right to
perpetual use on a given individual is a necessary and sufficient
condition for the conclusion of a final contract to this effect between
the parties. The contract between the municipality and the person
concerned must be concluded in the form of a notarial deed. The right
to perpetual use can be sold or bequeathed.
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 to the
Convention that the decision of 11 March 1994 conferred on her a
property right as she was awarded a right to perpetual use of the plot
concerned. She contends that this was a final administrative decision,
against which no appeal lay in the normal course of the proceedings.
The applicant submits that the judgment of the Supreme
Administrative Court deprived her of her property right in that it set
this decision aside under Article 156 of the Code of Administrative
Procedure. She complains that the court failed to address her argument
that the decision which gave her the right to perpetual use of the plot
was a final one and not subject to any appeal in the normal course of
the proceedings.
The applicant submits that in her case Article 7 of the Decree
on Real Property in Warsaw of 26 October 1945 was applied in a manner
which discriminated against owners of plots in Warsaw of Jewish origin.
Neither these persons, who had mostly been killed in 1943 by the German
occupation forces during the liquidation of the Warsaw ghetto, nor
their legal successors, were in a position to submit the relevant
applications as required by this provision. She complains under
Article 1 of Protocol No. 1 to the Convention read together with
Article 14 of the Convention that she is being discriminated against
in the enjoyment of her property rights as she is Jewish herself.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 January 1996 and registered
on 26 March 1996.
On 17 January 1997 the Commission decided to communicate the
applicant's complaint concerning the alleged deprivation of her
property right to the respondent Government.
The Government's written observations were submitted on 10 May
1997, after an extension of the time-limit fixed for that purpose. The
applicant replied on 18 June 1997.
THE LAW
The applicant submits that the decision of 11 March 1994
conferred on her a property right as she was awarded a right to
perpetual use of the plot concerned. The applicant complains under
Article 1 of Protocol No. 1 (P1-1) to the Convention that the judgment
of the Supreme Administrative Court deprived her of her property right.
She further complains under Article 1 of Protocol No. 1 to the
Convention read together with Article 14 (P1-1+14) of the Convention
that she is being discriminated against in the enjoyment of her
property rights as she is Jewish.
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 Government first submit that on 10 October 1994, i.e. the
date on which Poland ratified Protocol No. 1 to the Convention, the
applicant was not an owner of the property concerned. The decision of
11 March 1994 conferred on her a right to perpetual use.
The Government further submit that under Article 1 of Protocol
No. 1 (P1-1) to the Convention limitations on the enjoyment of property
rights can be imposed in the public interest. They emphasise that the
expropriation of property located in Warsaw pursuant to the Decree on
Real Property in Warsaw of October 1945 was dictated by the necessity
of rebuilding the capital city, which had been razed to the ground by
the Nazi army, and of allocating land, on a functional basis, for
construction purposes. These necessities were clearly of a public-
interest character. The expropriation was based on the Decree, which,
in the hierarchy of law sources, had at the relevant time a rank equal
to that of a bill enacted by a parliament. Thus, the 1945
expropriation was subject to conditions provided for by law.
The Government further submit that the judgment of the Supreme
Administrative Court of 7 July 1995 does not amount to a breach of the
applicant's right to peaceful enjoyment of her possessions. This is
so as the applicant was never in de facto possession of the property
concerned.
They further submit that the outcome of the proceedings
terminated by the Supreme Administrative Court's judgment were in
compliance with the requirements of Article 1 of Protocol No. 1 (P1-1)
to the Convention. The applicant was neither the owner of the property
concerned, nor had she been in de facto possession thereof. The
expropriation of the applicant's predecessors in title had been
effected in conformity with the laws applicable at the relevant time.
The applicant's request to be awarded the right to perpetual use was
assessed in the light of these laws and it was clear that the relevant
requirements for the transfer of the title to the applicant were not
complied with. It was only in 1991 that the applicant inherited the
estate of Mr and Mrs K. She had the right of perpetual use of the land
concerned only from 17 June 1994, i.e. the date on which the decision
of 11 March 1994 became final, to 17 February 1995. However, within
that period she neither entered into de facto possession thereof, nor
had her right registered in the land register. Thus, the conclusion
that the judgment of the Supreme Administrative Court interfered with
her de facto possession of the property would be untenable.
The Government conclude that this complaint must be declared
manifestly ill-founded.
The applicant submits that expropriation of all real property
located in Warsaw pursuant to the 1945 Decree amounted to a serious
breach of property rights and constituted a violation of the Polish
Constitution of 1921, in force at that time. She stresses that the
provisions of the 1945 Decree relating to compensation for expropriated
owners remained a dead letter, as relevant ordinances were never issued
by the competent authorities. She points out that, in the absence of
any reprivatisation laws, the municipalities in Warsaw continue to
disregard the rights of former owners and their successors and sell
land within their jurisdiction to third parties, this being motivated
exclusively by pursuit of profit.
She further states that the 1945 Decree fixed the time-limit for
the submission of requests to be granted ownership for a limited period
at 19 October 1948. It was only for certain plots, appropriate for
one-family housing, that this time-limit was subsequently retroactively
prolonged in 1965. Thereby, Polish citizens of Jewish nationality were
effectively deprived of any possibility of getting their property back
as those who had survived the Holocaust left Poland shortly after the
Second World War and were not aware of the procedures created by the
1945 Decree. This put them at a serious disadvantage.
The applicant submits that in her case the decision of 11 March
1994 became final. It is true that the municipality subsequently did
not conclude a notarial contract with her. This was so despite the
fact that on numerous occasions she requested the municipality to
conclude the contract. The applicant emphasises that the failure of
the municipality to conclude a final contract with her lacked any legal
basis and was never explained by the municipality. The applicant
further contests the Government's arguments to the effect that she was
not the owner of the plot. She submits in this respect that, following
the decision of the Minister of Planning and Construction of 6 May
1992, by which the Minister declared null and void the 1953 refusal to
award the limited property rights on Mr and Mrs K., she had requested
the court in charge of the land register to delete the entry to the
effect that the State Treasury was the owner of the plot. The court
complied with her request. Accordingly, the relevant entry in the
register showed that Mr and Mrs K., to whom she is a rightful
successor, were the owners.
The Commission first recalls that anyone who complains of an
interference with one of his property rights must show that such a
right existed (No. 7694/76, Dec. 14.10.77, D.R. 12, p. 131).
In this respect, the Commission recalls the established case-law
of the Convention organs, according to which "property" can be either
"existing possessions" (see Eur. Court HR, Van der Mussele v. Belgium
judgment of 23 November 1983, Series A no. 70, p. 23, para. 48) or
assets, including claims, which an applicant can, at least arguably,
"legitimately expect" to see realised (cf. Eur. Court HR, Pine Valley
Developments Ltd. and others v. Ireland judgment of 29 November 1991,
Series A no. 222, p. 23, para. 51, and Pressos Compania Naviera S.A.
and Others v. Belgium judgment of 20 November 1995, Series A no. 332.
p. 21, para. 31).
The Commission will first examine whether Article 1 of Protocol
No. 1 (P1-1) applies to the rights affected in the present case.
The Commission notes that it is not in dispute between the
parties that the administrative decision of 11 March 1994 was a legal
basis for conclusion of the civil-law contract which would confer on
the applicant the right to perpetual use.
The Commission considers that this decision was a source of at
least a legitimate expectation that the final civil-law contract would
be concluded with the applicant. It is true that under Polish law the
right of perpetual use is not equivalent to ownership. However, under
the relevant provisions of the Polish Civil Code, this right confers
an entitlement to use land owned by a municipality or by the State for
ninety-nine years. This right, as reflected by its position in the
Civil Code, is of a certain hybrid character between ownership and
other rights in rem. It can be sold or bequeathed. It is further to
be noted that in the present case the right at issue represented a
considerable pecuniary value as it concerned the plot located in the
very heart of the capital city. The Commission is thus of the opinion
that the right to perpetual use as provided for by the Polish Civil
Code falls within the ambit of rights protected by Article 1 of
Protocol No. 1 (P1-1), and that the applicant should be considered as
having had a legitimate expectation that the necessary formal steps
would be taken by the municipality to finalise the transaction with
her.
The Commission further observes that on 10 October 1994, the date
on which Poland ratified Protocol No. 1 to the Convention, the
applicant had the final decision in her favour. It is true that on
29 November 1994 the Mayor of the Warsaw-Centre requested that this
decision be declared null and void under Articles 155 and 166 of the
Code of Administrative Procedure, which permits the annulment of any
final administrative decision at any time. However, this cannot affect
the final character of the decision awarding the right to the
applicant. Thus she should be considered as having had "possession"
within the meaning of Article 1 of Protocol No. 1 (P1-1) to the
Convention, until the final judgment of the Supreme Administrative
Court of 7 July 1995. This judgment ultimately extinguished the
applicant's right. The Commission, accordingly, is of the opinion that
this judgment amounted to a deprivation of possessions within the
meaning of this provision.
However, the Commission is not required to decide whether or not
the facts submitted by the applicant in support of her complaint
disclose any appearance of a violation of the Convention as Article 26
(Art. 26) of the Convention provides that the Commission "may only deal
with a matter after all domestic remedies have been exhausted".
In the present case the applicant had at her disposal, in order
to claim compensation, a special procedure provided for in Article 160
of the Code of Administrative Procedure. This provision enables
persons who have sustained a loss as a result of a final administrative
decision being declared null and void to submit a compensation claim
to the administrative authority which quashed this decision, within
three years from the date on which the decision on annulment became
final. An administrative decision in respect of such compensation
claim can be appealed against to a civil court. The applicant has not
shown that she instituted administrative proceedings under Article 160
of the Code of Administrative Procedure, seeking compensation for the
damage sustained as a result of the quashing of the decision of
11 March 1994. Against any administrative decision concerning her
claim for compensation she could ultimately lodge a compensation claim
with a civil court.
It follows that the application must be rejected for non-
exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3)
of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy