AS TO THE ADMISSIBILITY OF
Application No. 29454/95
by Marian SWACHA
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
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 15 April 1995 by
Marian SWACHA against Poland and registered on 5 December 1995 under
file No. 29454/95;
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 Polish citizen born in 1930, is a retired
technician, residing in Sroda Sl*ska.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
In 1982 the applicant opened a special bank account with the
State Savings Bank (Powszechna Kasa Oszcz*dnosci) within the framework
of a State-organised scheme of distribution and pre-paid sale of cars.
The opening of the contract was tantamount to a conclusion of a
preliminary purchase contract with a State-owned firm "Polmozbyt" for
a car to be delivered in 1989 at the latest. The order in which the
cars were to be delivered was determined by drawing a lot.
The applicant regularly paid certain sums to his savings account,
but he did not obtain a car within the framework of the scheme. In
1992 the applicant on several occasions complained thereof to the
headquarters of the bank, to the Ministry of Finance and to other
authorities. He was informed that the rules of the scheme had changed
since in view of the transition in the economy it had become impossible
for the State budget to finance the scheme on the scale originally
envisaged. Under the 1990 Act on State Financed Prepaid Sale of Cars
the applicant could not realistically expect that his contract would
be carried out on its original terms. Instead, he had under the 1990
Act other rights of a considerable pecuniary value.
On 18 November 1992 the applicant lodged an action against the
Wolów branch of the State Savings Bank with the Wroclaw Regional Court
(S*d Wojewódzki), claiming payment of a sum equivalent to the current
market price of a car as indicated in the contract or delivery of a
car. On 29 June 1993 the Court transferred the case to the Wolów
District Court (S*d Rejonowy) as it was the latter which had
jurisdiction to examine the case.
On 1 March 1994 the Wolów District Court dismissed the
applicant's claim. The Court found that the applicant had the account
at the State Savings Bank and that he had regularly paid monthly
instalments towards the price of a car as agreed in 1982. From 1982
to 1994 the cars had been delivered to 261 participants who had
accounts in the Wolów branch of the State Savings Bank. The
applicant's number on the list of participants, determined by drawing
a lot, was 1125. The Court went on to observe that as a result of the
transition in the Polish economy it had become impossible for the State
budget to continue financing of the scheme, i.e. paying contributions
towards the price of every car from the State budget. Therefore the
obligations of "Polmozbyt" and of the State towards the participants
in the scheme had been altered and reduced in pursuance of the 1990 Act
on the State Financed Prepaid Sale of Cars. The applicant had not
availed himself of the possibilities provided for by this Act, even
though their financial value was considerable. It was true that the
applicant's claim to have a car sold to him on conditions set out in
the original contract of 1982 had not been fulfilled. However, it was
"Polmozbyt" who was obliged to fulfil these claims. The State Savings
Bank was only acting as a representative of "Polmozbyt" and carrying
out certain technical and banking acts relating to the scheme. The
contract between the bank and the applicant provided only for running
a specialised bank account and the bank had properly discharged those
obligations, including the calculation of interest which had
accumulated on the account. Consequently, the bank was not under the
obligation to reimburse the applicant the price of a car or to sell a
car to him. The Court further observed that the 1990 Act had been
examined by the Constitutional Court (Trybunal Konstytucyjny) in 1991
and the Court found that it was compatible with the constitutional
guarantees of property rights.
The applicant filed an appeal and requested to be granted
exemption from the court fee. On 28 April 1994 the Wolów District
Court refused to grant exemption, considering that the applicant had
not shown that his financial situation made it impossible for him to
pay the fee. On 22 June 1994 the Wroclaw Regional Court dismissed the
applicant's appeal against this decision, considering that the lower
court was right in finding that the applicant had failed to show that
he would not be able to pay the court fee in view of his difficult
financial situation. In fact, he did not submit a document to
substantiate his financial situation at the time of filing the appeal,
but only relied on such a document submitted at the time when he had
requested an exemption from the court fee to be paid upon lodging his
action with the first instance court.
On 20 July 1994 the Wolów District Court rejected the applicant's
appeal against the judgment of 1 March 1994, the relevant court fee not
having been paid.
On 8 August 1994 the Wroclaw Court of Appeal rejected the
applicant's appeal against the decision of the Wroclaw Regional Court
of 22 June 1994 as no appeal lay against the decision of an appellate
court.
The applicant did not pay the court fee and did not pursue the
matter before the courts. He complained on numerous occasions to
various authorities about the fact that he could not buy the car on the
conditions set out in 1982. In reply he was informed of the contents
of the rights of the participants in the scheme under the relevant
legislation.
Relevant domestic law
In 1990 the Act on State Financed Prepaid Sale of Cars was
enacted by the Parliament. It provided that the persons who had
participated in the scheme but had not obtained a car, could obtain a
partial financing of the purchase of a car by the State at the moment
when they were invited to purchase the car from "Polmozbyt". It
further set forth a right to compensation for persons deciding to
withdraw from the scheme upon reimbursement of their savings with
interest. It further envisaged that persons participating in the
scheme were entitled to customs tax exemption if they imported a car
from abroad. This exemption could be sold or transferred to a third
party. The Act stated that the scheme would be financed within the
limits of financial means earmarked for this purpose in the State
budget for a given year. The entitlement would be realised in the same
order as had been determined by lot in 1982-1986 for the distribution
of cars.
On 4 December 1990 the Constitutional Court decided that the 1990
Act was compatible with the Constitution.
On 21 January 1994 a new legislation was adopted, pertaining to
the rights of persons participating in the scheme. It provided that
they were entitled to withdraw their savings from the bank with
interest. They were further entitled to compensation, payable upon
withdrawal. The Act stated that the scheme would be financed within
the limits of financial means earmarked for this purpose in the State
budget for a given year. The entitlement would be realised in the same
order as had been determined by lot in 1982-1986 for the distribution
of cars. It also remained open for the participants to withdraw all
their savings from the accounts, with the exception of one million
zlotys, and this allowed them to retain the right to the compensation
on the conditions set out above. Further, the participants were
entitled to purchase certain categories of cars produced in Poland or
abroad at the net price without VAT.
COMPLAINTS
The applicant complains in substance under Article 1 of
Protocol No. 1 to the Convention that as a result of the changes of
legislation it has become impossible for him to purchase a car on the
terms set forth in the 1982 contract. He submits that the State failed
to respect its obligations stemming from this contract.
He further complains under Article 6 para. 1 of the Convention
about the outcome of the proceedings before the civil courts, in which
his claim for fulfilmennt of the 1982 contract was dismissed, alleging
this outcome was not fair.
He complains that the Constitutional Court in its decision of
4 December 1990 decided that the 1990 Act was compatible with the
Constitution. He submits that the Court thus sanctioned the State's
failure to comply with its contractual obligations. He submits that
he did not have access to court as regards his civil rights under the
1982 contract.
THE LAW
1. The applicant complains in substance under Article 1 of
Protocol No. 1 (P1-1) that under the legislation in force it has
become impossible for him to buy a car on the terms set out in the 1982
contract.
Article 1 of Protocol No. 1 (P1-1) provides:
"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."
2. The Commission observes that Poland ratified Protocol No. 1 to
the Convention on 10 October 1994. It is true that the legislation
referred to by the applicant was enacted before that date. However,
the Commission considers that this legislation created a continuing
situation in that it replaced rights and obligations of persons
participating in the State financed prepaid sale of cars scheme with
certain new rights and that this legal situation remains in force. The
applicant complains about the manner in which the new legislation
affected and continues to affect his property rights under the scheme
in question. Therefore his complaint cannot be declared inadmissible
as being incompatible ratione temporis with the Convention.
3. Under Article 26 (Art. 26) of the Convention, the Commission may
only deal with a matter after all domestic remedies have been
exhausted.
In the present case the applicant brought an action against the
State Savings Bank with the Wolów District Court. He subsequently
failed to lodge an appeal with the Regional Court against the first
instance judgment. However, the Commission is not required to
determine whether the applicant complied with the requirements of
Article 26 (Art. 26) of the Convention as the complaint under Article
1 of Protocol No. 1 (P1-1) to the Convention must in any event be
declared manifestly ill-founded for the following reasons.
4. As regards the substance of the complaint, the Commission
observes that the legislation complained of provided for specific
measures in order to safeguard certain pecuniary rights of the persons
participating in the car purchase scheme who had not yet been able to
purchase cars within its framework. That legislation was enacted as
in the light of the general economic situation of the State and, in
particular, the economic transition, it had become impossible to secure
fulfilment of the State obligations stemming from the scheme in its
original content as set out by the relevant contracts concluded in
1981-1982.
The Commission notes that under the legislation of 1990 these
measures comprised a right to compensation for persons deciding to
withdraw from the scheme. It further envisaged that persons
participating in the scheme were entitled to exemption from customs
duties if they imported a car from abroad, this entitlement being
transferable to third parties. The applicant did not avail himself of
any of those possibilities. In 1994 new legislation was enacted which
restricted the rights of the participants to a compensation payable
upon withdrawal from the scheme.
The Commission further notes that the applicant still possesses
his bank account with his savings accumulated since 1982. This account
was not closed by the bank or expropriated and the applicant is
entitled to obtain the sum of his savings, with legal interest. It is
true that the applicant did not acquire a car within the scheme. It
is also true that the actual time of waiting for the possibility of
obtaining a compensation upon withdrawal guaranteed under the 1990 and
1994 legislation is bound to be long, given that these claims are being
satisfied only within the limits of financial means earmarked for this
purpose in the State budget for a given year and in the order
determined by lot in the years 1982-1986. However, the Commission
considers that the applicant was not deprived of his possessions within
the meaning of Article 1 of Protocol No. 1 (P1-1) to the Convention,
first paragraph, while the State exercised "control of property" within
the meaning of the second paragraph in this regard. The Commission
considers, however, that the considerations of public policy which led
to modifications of the rights foreseen in the original scheme
constitute legitimate grounds for these modifications, even though it
is true that the scope of the rights which the participants might have
reasonably expected to acquire under the scheme was restricted by the
legislation concerned. The Commission considers that, in the result,
a fair balance has been struck between the conflicting public interests
and the protection of the individual's property rights, the
participants in the scheme not being required to bear an excessive
individual burden.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. The applicant further complains under Article 6 para. 1
(Art. 6-1) of the Convention about the outcome of the proceedings
before the civil courts. He complains that the Constitutional Court
in its decision of 4 December 1990 decided that the 1990 Act was
compatible with the Constitution. He submits that he did not have
access to court as regards his civil rights under the 1982 contract.
Article 6 (Art. 6) of the Convention in its relevant part reads:
"In the determination of his civil rights and obligations
... everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law."
a) As regards the complaint pertaining to the decision of the
Constitutional Court, the Commission recalls that the applicability of
Article 6 (Art. 6) of the Convention depends on whether the proceedings
at issue concern the determination of a person's "civil rights and
obligations". The Commission observes that under Polish law an
individual does not have a standing in the proceedings before the
Constitutional Court. In the present case the applicant was not a
party to the proceedings before this Court and the law did not allow
him to be a party in such proceedings. Moreover, the Constitutional
Court's exclusive task in those proceedings was to review the
constitutionality of the legal provisions at issue irrespective of
their application to any particular case. Therefore the proceedings
at issue did not concern the applicant's civil rights and obligations
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
Consequently, this provision is inapplicable thereto.
It follows that part of the application is incompatible ratione
materiae with the Convention within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
b) Insofar as the applicant complains about lack of access to a
court competent to determine his rights and obligations stemming from
the contract which he concluded in 1982, the Commission observes that
the applicant had in fact access to court and he availed himself of
this right when lodging a civil action against the State Savings Bank
with the Wroclaw Regional Court which transferred the case to the Wolów
District Court. The Court, having examined the applicant's claim,
dismissed it as under the relevant legislation his claim could not be
satisfied. Thus, there is no indication that the applicant's right
to access to court within the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention was in any way restricted or denied under Polish law.
The fact that the applicant's action was dismissed is irrelevant in
this context, as the Commission is not called upon to examine under
Article 6 (Art. 6) of the Convention whether the domestic courts have
committed any errors of fact or law.
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, 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