AS TO THE ADMISSIBILITY OF
Application No. 27926/95
by Lidia SZAFARCZYK
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 27 November 1996, 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 30 March 1994 by
Lidia SZAFARCZYK against Poland and registered on 20 July 1995 under
file No. 27926/95;
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 1940, is retired. She
resides in K*pno.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
1. Particular circumstances of the case
In 1967 the applicant's grandmother died, having apparently
bequeathed a part of the plot which she owned in Olszowa to the
applicant's mother and the remainder to her other two children.
On 12 June 1973 the applicant's uncle F.S. obtained a decision
of the K*pno Mayor declaring that by virtue of the Agricultural
Property Regulation Act of 1971 ("the 1971 Act") he had become the
owner of the plot concerned. Apparently later the applicant and her
mother de facto possessed the plot.
In 1986 the applicant's mother died, having bequeathed all her
property to the applicant. Subsequently the applicant obtained a court
judgment, confirming that she was the sole heir of her mother.
On 8 September 1989 the K*pno District Court (S*d Rejonowy)
ordered that the applicant vacate the property concerned as it was F.S.
who was the owner and she did not possess any title thereto.
On 30 October 1989 the Minister of Justice refused to file an
extraordinary appeal against this judgment.
In June 1990 the applicant was evicted from the property.
On 6 June 1991 the applicant requested the Kalisz Governor
(Wojewoda) to institute proceedings in order to annul the decision of
12 June 1973. She submitted that this decision had been in flagrant
breach of law, given that F.S. had never de facto possessed the
property. It had been first her mother and from 1986 the applicant
herself who had possessed the plot.
On 9 January 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.
On 15 February 1993 the Minister of Agriculture upheld the
Governor's decision of 9 January 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 the decision of the
Minister deprived her of her property.
On 10 June 1994 the Supreme Administrative Court dismissed the
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 1973 decision could
not be reexamined and that the proceedings had to be discontinued, had
properly applied Article 63 of the 1991 Act, which specifically
excluded judicial review of such decisions.
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 that the Supreme Administrative Court did
not examine the merits of her case. She further complains that she was
deprived of the property of the plot concerned. No provisions of the
Convention are invoked.
THE LAW
1. The applicant complains that the Supreme Administrative Court did
not examine the merits of her case. The Commission has examined this
complaint under Article 6 para. 1 (Art. 6-1) of the Convention which
in its relevant part reads:
"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 Kalisz Governor's decision
of 9 January 1992. 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". The Commission
observes that the applicant ceased to have any arguable civil right at
the time when the decision of the Kalisz Governor was taken.
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.
2. The applicant also complains under Article 1 of the Protocol
No. 1 (P1-1) that she was deprived of her property rights.
Article 1 of Protocol No. 1 (P1-1) to the Convention in its
relevant part 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 Commission recalls that Poland ratified Protocol No. 1 to the
Convention on 10 October 1994. In accordance with the generally
recognised principles of international law, the Commission is not
competent to examine complaints relating to alleged violations of the
Protocol by acts, decisions or events that have occurred prior to this
date.
The Commission recalls that in the present case the
administrative proceedings were discontinued by the Kalisz Governor on
9 January 1992. On 15 February 1993 the Minister of Agriculture upheld
the Governor's decision. The Supreme Administrative Court dismissed
the applicant's appeal against this decision on 10 June 1994. These
acts all occurred prior to 10 October 1994, i.e. the date of the
ratification by Poland of Protocol No. 1 to the Convention. Insofar
as the applicant's complaint might be understood as implying that these
decisions created a continuing situation of deprivation of her property
rights, the Commission recalls that deprivation of property rights is
in principle an instantaneous act and does not produce a continuing
situation of "deprivation of property" (No. 7742/76, Dec. 4.7.78,
D.R. 14 p. 146; No. 26078/94, Dec. 17.5.95, unpublished).
It follows that this complaint 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).
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