Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28863/95

by Aleksandra and Tomasz KOPCZYNSKI

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 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

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 30 November 1994

by Aleksandra and Tomasz KOPCZYNSKI against Poland and registered on

5 October 1995 under file No. 28863/95;

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 applicants, who are both Polish citizens, are a married

couple. The first applicant, born in 1950, is a technician. The

second applicant, born in 1946, is an engineer. They reside in

Olsztyn, Poland.

The facts of the case, as submitted by the applicants, may be

summarised as follows.

Particular circumstances of the case:

On 10 May 1988 the applicants bought three shares in the joint-

stock company "Centon". Subsequently, following a resolution of a

general meeting of the shareholders of 23 May 1989 concerning an

increase in the share capital, the applicants paid up further shares

by way of a contribution in kind (i.e. a piece of real property and

their industrial estate situated in Krupoliny). The value of their

contribution was deemed to be equal to 50 % of the new total share

capital. A notarised agreement finally transferring the ownership of

the property concerned was made on 30 November 1989 in the Olsztyn

Public Notary's Office (Panstwowe Biuro Notarialne). The same day the

company "Centon" was registered as the owner of the property in

question in the Olsztyn District Court Real Property Register (S*d

Rejonowy Wydzial Ksi*g Wieczystych). On 15 June 1990 the second

applicant was appointed to the board of directors of the company.

Apparently, between December 1991 and April 1992, various entries

concerning the issue of shares were made and various resolutions passed

by the organs of the company were registered in the Olsztyn District

Court Commercial Register (Rejonowy S*d Gospodarczy - Sekcja

Rejestrowa) upon motions filed by the managing director of the company

"Centon".

Since the applicants considered that those entries had been based

either on untrue statements or forged documents, on 6 April 1992 they

informed the company that they wished to withdraw their contribution

in kind. On 29 May 1992 the general meeting of shareholders passed a

notarised resolution obliging the board of directors to conclude a

notarised agreement with the applicants under which the ownership of

the property in question would be transferred back to them. At the

same time it obliged the board of directors to prepare a detailed

account of the company's claims for expenses incurred in relation to

the property.

In the meantime, on 28 May 1992, apparently upon a further motion

filed by the managing director of the company, the court registered the

resolution of 23 May 1989 relating to the increase in the share capital

through the applicants' contribution in kind.

a) Proceedings relating to the amendment of the entry made in the

real property register.

Following the above-mentioned resolution of 29 May 1992, the

applicants were involved in negotiations concerning the procedure and

deadline for their contribution in kind to be returned. However, as

no satisfactory agreement was reached, on 4 November 1992 they lodged

a claim under Section 10 para. 1 of the Law on the Real Property

Register and Hypothec with the Olsztyn Regional Court (S*d Wojewódzki),

requesting that the entry made in the Olsztyn District Court Real

Property Register on 30 November 1989, in accordance with which the

company "Centon" was registered as the owner of the real property and

industrial estate in Krupoliny, be amended and the applicants be

registered as the owners of this property.

On 24 December 1992 the defendant company filed a pleading in

reply to the applicants' statement of claim and requested the court to

dismiss the claim as premature. The applicants responded on 5 February

1993, advancing arguments in support of their claim. The defendant

replied on 5 April 1994. Between 15 April and 23 June 1993 the parties

filed six further pleadings between them and submitted a range of

documentary evidence.

In the meantime, on 21 April 1993, the court held a hearing and,

at the parties' request, ordered that certain documentary evidence be

obtained. During the hearing the court also heard evidence from the

parties.

On 17 November 1993 the Olsztyn Regional Court again heard

evidence from the parties and gave judgment dismissing the applicants'

claim.

On 21 December 1993 the applicants lodged an appeal against this

judgment with the Warsaw Court of Appeal (S*d Apelacyjny).

On 27 April 1994 the defendant filed a pleading in reply to the

applicants' appeal.

On 7 July 1994 the Warsaw Court of Appeal dismissed the

applicants' appeal.

On 5 September 1994 the applicants requested the Ombudsman to

intervene on their behalf, submitting that the courts concerned had

committed serious errors of law and fact in their judgments and thus

their right to a fair hearing, guaranteed under Article 6 para. 1 of

the Convention, had not been respected. On 17 October 1994 the

Ombudsman informed them that he had referred their complaint and

supporting documents to the Minister of Justice who would make a

decision on whether or not it would be justified to grant them leave

to file an extraordinary appeal.

On 18 January 1995 the Minister of Justice refused to grant the

applicants leave to file an extraordinary appeal, finding that there

was no justifiable basis for the opinion that the contested judgments

had been affected by a flagrant breach of law.

b) Proceedings relating to the amendment of entries made in the

Olsztyn District Court Commercial Register.

On 16 June 1993 the applicants lodged an application under

Section 21 of the Commercial Code with the Olsztyn District Court.

They requested the court to strike various entries made upon the motion

of the managing director of the company "Centon" out of the commercial

register, claiming that they had been based either on inaccurate

information or untrue statements, or that they had been inadmissible

in law. The relevant entries concerned, in particular, the resolution

of 23 May 1989 relating to the increase in the company's share capital

through the applicants' contribution in kind.

On 8 February 1994 the court held a hearing and heard evidence

from the parties. It apparently decided that no further hearing should

be held for the time being.

On 23 January 1995 the applicants complained to the Chief Justice

of the Supreme Court (S*d Najwyzszy) about inactivity on the part of

the Olsztyn District Court, submitting that the proceedings in their

case were lasting for an unreasonably long time even though their claim

could have been determined at the first hearing.

On 24 February 1995 the Chief Justice of the Supreme Court

notified the Chief Justice of the Olsztyn District Court that the above

complaint had been lodged and ordered the court of first instance to

take further action in respect of it.

On 23 March 1995 the Olsztyn District Court made a decision

granting the applicants' request of 16 June 1993.

c) Applicants' request for criminal proceedings to be instituted.

On 8 April 1993 the second applicant, apparently acting on behalf

of both of them, requested the Olsztyn District Prosecutor (Prokurator

Rejonowy) to institute criminal proceedings against the managing

director and members of the board of directors of the company "Centon",

submitting that they had committed an offence outlawed under Section

482 of the Commercial Code, i.e. that they had acted to the detriment

of the company.

On 23 June 1993 the prosecutor discontinued the investigation,

finding that no offence had been committed. On 5 August 1993, upon the

applicant's appeal, the Olsztyn Regional Prosecutor (Prokurator

Wojewódzki) upheld the decision of the prosecutor at first instance.

d) Insolvency proceedings.

Between May and November 1995, the applicants were negotiating

the return of their property with the board of directors of the company

"Centon". However, as the applicants wished to regain actual

possession of their property on the basis of an inventory before any

notarised agreement transferring ownership was made, whereas the

company's representatives insisted on a notarised agreement being made

prior to transfer of actual possession, no settlement was reached.

Subsequently, at the beginning of 1996, the company became

insolvent.

On 18 November 1996 the board of directors of the company

"Centon" lodged an insolvency petition (wniosek o ogloszenie upadlosci)

with the Olsztyn District Court.

On 9 January 1997, the applicants, apparently unaware that an

insolvency petition had already been submitted to the court, lodged a

petition for the winding-up of the company (wniosek o likwidacj*

spólki) with the Olsztyn District Court.

On 13 March 1997 the court declared the company insolvent and

assigned a judge-receiver (s*dzia komisarz) and a trustee (syndyk masy

upadlosci). By a letter of 7 April 1997 the trustee informed the

applicants that they should take such further steps in the insolvency

proceedings as were desirable to protect their interests.

On 19 May 1997 the applicants, in reply to the trustee's letter,

submitted a written statement addressed to the judge-receiver and the

trustee, requesting them, inter alia, to order that their property be

returned to them. They stressed the fact that, on 23 March 1995, the

Olsztyn District Court had struck the entry based on the resolution of

23 May 1989 (according to which their property had become one of the

company's assets) out of the commercial register. As a result, the

property in question had ceased to belong to the company and there was

no legal basis for it to be used to cover the company's debts.

In the meantime, the applicants negotiated preliminary conditions

with the trustee for the return of their property. Since the company

"Centon" had made certain disbursements in relation to the applicants'

property, while it was in its possession, the trustee proposed to

return the property to the applicants on condition that they reimbursed

the disbursements.

As of 15 December 1997 no formal decision relating to the

applicants' statement of 19 May 1997 had been taken either by the

judge-receiver or by the trustee.

The insolvency proceedings are pending.

Relevant domestic law and practice:

1. Proceedings relating to the amendment of entries made in a court

commercial register.

The Polish Commercial Code, in Sections 6 and 13-25, provides

that any limited liability company and joint-stock company is obliged

to register itself in the District Court Commercial Register which

lists information concerning a given company, its shareholders, organs,

type of business activity, amendments to the deed of incorporation,

assets, share capital, contributions, mergers etc. All entries are

made on the basis of documents submitted to the register and are open

to public inspection. A company must, within a two-week time-limit,

notify the relevant court about any circumstance required by law to be

entered in the register and it must submit its balance sheet to the

court following the first year of its existence.

Decisions of the court are served on the company concerned and

other persons affected thereby. An application for entries to be

amended in accordance with the actual facts may be lodged at any time

with that court under Section 21 of the Polish Commercial Code, which,

insofar as relevant, provides:

"1. ... where an application is made to rectify or strike an

entry out of the commercial register on the grounds of it being

unjustified, the court may order that an appropriate amendment

be made to the register."

Proceedings instituted under Section 21 of the Commercial Code

are limited to an assessment of the question of whether the contested

original entries were justified. In practice, all that is required in

order to determine such an application is a verification of the

accuracy of the documents submitted to the register; if necessary, the

competent court may hear evidence from the parties.

2. Amendment of entries made in a court real property register.

The Law of 6 July 1982 on the Real Property Register and Hypothec

(as amended) provides for compulsory registration of ownership and

other rights in rem in a real property register kept by district

courts.

Under Section 10 of the Law, if there is any inconsistency

between the actual legal status of immovables and the relevant entry

in a court real property register, which results in the right of

ownership not being entered in the register or being entered

incorrectly, the person concerned shall have a claim for amendment of

such an entry. The claim shall be examined by a regional court in civil

proceedings.

3. Transfer of ownership of immovables.

The Polish Civil Code requires, in Section 158, that a contract

transferring ownership of immovable property must, on pain of nullity,

be concluded in the form of a notarised deed. Such a contract is

formed by consent between parties.

4. Obligation to give consent to a contract.

In cases where a party to a future contract, whether or not one

relating to immovable property, is obliged, for whatever reason, to

give a "declaration of will" (oswiadczenie woli) (e.g. to manifest his

consent to that contract), but has failed to do so, the other party

may, under Section 64 of the Civil Code, sue him for a declaratory

judgment replacing such consent.

This provision states:

"A final judgment declaring that a given person is obliged to

make a specified declaration of will shall replace such

declaration."

5. Insolvency proceedings.

The Ordinance of the President of Republic of Poland of

24 October 1934 on Insolvency Law (as amended) sets out the rules

governing insolvency proceedings.

Section 1 of the Insolvency Law, insofar as relevant, provides:

"1. Any business enterprise which is unable to pay its debts

shall be declared insolvent.

...

3. Any public enterprise, cooperative ... [or] joint-stock

company shall be declared insolvent if its assets are not

sufficient to cover its liabilities."

According to Section 8 of the Insolvency Law proceedings relating

to an insolvency petition shall be instituted before the district

court, sitting as a panel of three judges, in whose jurisdiction the

debtor has its registered office.

Pursuant to Section 14 of the Insolvency Law, a court making an

insolvency order shall call on creditors to submit their claims within

a fixed time-limit, assign a so-called "judge-receiver" (who shall

conduct the subsequent insolvency proceedings, supervise a trustee's

actions and determine in which instances a trustee shall not act

without his prior permission) and appoint a trustee (who shall take

possession of the insolvent entity's property and, subject to certain

prior decisions of the judge-receiver, distribute it among creditors).

According to Section 60 of the Insolvency Law, a trustee alone

has the capacity to sue or to be sued in all proceedings concerning

claims against an insolvent estate.

COMPLAINTS

1. The applicants complain under Article 1 of Protocol No. 1 to the

Convention that the Olsztyn Public Notary's Office made, on 30 November

1989, a notarised agreement transferring their property to the company

"Centon" without the necessary verification of entries made in the

Olsztyn District Court Commercial Register.

2. They also complain under Article 1 of Protocol No. 1 to the

Convention that, on 28 May 1992, the Olsztyn District Court Commercial

Register made the entry concerning the increase in the share capital

of the company "Centon" which was based on untrue statements and was

inadmissible in law.

3. They further complain under Article 6 para. 1 of the Convention

about the unfairness of the proceedings relating to the amendment of

the entry made in the Olsztyn District Court Real Property Register,

submitting that the Olsztyn Regional Court and the Warsaw Court of

Appeal committed serious errors of fact and law in their judgments and

that they incorrectly assessed the evidence presented.

4. Under Article 13 of the Convention the applicants complain that

the Minister of Justice arbitrarily refused them leave to file an

extraordinary appeal to the Supreme Court against the judgments given

by the Olsztyn Regional Court and the Warsaw Court of Appeal in the

proceedings relating to the amendment of the entries made in the real

property register.

5. The applicants complain under Articles 6 and 13 of the Convention

and Article 1 of Protocol No. 1 to the Convention that the Olsztyn

District Prosecutor failed to institute criminal proceedings against

the members of the board of directors of the company "Centon".

6. Under Article 1 of Protocol No. 1 to the Convention they complain

that, regardless of numerous claims submitted by them to the Polish

courts, they are still being deprived of their right to recover their

property which was unlawfully acquired by the company "Centon".

7. Lastly, the applicants complain under Article 6 para. 1 of the

Convention that the proceedings relating to their application for the

entries made in the Olsztyn District Court Commercial Register to be

struck out of the register lasted for an unreasonably long time.

THE LAW

1. The applicants complain under Article 1 of Protocol No. 1 (P1-1)

to the Convention that the Olsztyn Public Notary's Office made, on 30

November 1989, a notarised agreement transferring their property to the

company "Centon" without the necessary verification of entries made in

the Olsztyn District Court Commercial Register. They also complain

under Article 1 of Protocol No. 1 (P1-1) to the Convention that, on 28

May 1992, the Olsztyn District Court Commercial Register made the entry

concerning the increase in the share capital of the company "Centon"

which was based on untrue statements and was inadmissible in law.

The Commission notes that both events complained of, which took

place on 30 November 1989 and 28 May 1992 respectively, occurred prior

to 10 October 1994, the date on which Protocol No. 1 to the Convention

entered into force with respect to Poland. The Protocol governs, for

each Contracting Party, only events subsequent to its entry into force

with respect to that Party.

It follows that this part of the application is inadmissible as

being incompatible ratione temporis with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2).

2. The applicants further complain under Article 6 para. 1

(Art. 6-1) of the Convention about the unfairness of the proceedings

relating to the amendment of the entry made in the Olsztyn District

Court Real Property Register, submitting that the Olsztyn Regional

Court and the Warsaw Court of Appeal committed serious errors of fact

and law in their judgments and that they incorrectly assessed the

evidence presented.

Article 6 para. 1 (Art. 6-1), insofar as relevant, provides:

"1. In the determination of his civil rights and obligations

... everyone is entitled to a fair ... hearing ... by ... [a]

tribunal established by law."

The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties to the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its established

case-law (see e.g. No. 7987/77, Dec. 13.12.79, D.R. 18, pp. 31, 45;

No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).

The Commission further recalls that the admissibility and the

assessment of evidence are primarily a matter for regulation by

national law. As a rule, it is for the national courts to assess the

evidence before them, whereas it is the Commission's task to ascertain

whether the proceedings considered as a whole, including the way in

which the evidence was taken, were fair (see Eur. Court HR, Asch v.

Austria judgment of 26 April 1991, Series A no. 203, p. 10, para. 26).

In the present case the Commission finds no elements which would

indicate that the national courts went beyond their discretion as to

the assessment of the evidence presented in the course of the

proceedings complained of. Nor does it consider that the applicants

were prevented from advancing any arguments which they considered

important for the outcome of their case; the number of pleadings

submitted by the parties in the proceedings before the court of first

instance suggests that they were sufficiently able to put forward their

point of view on any questions of law and fact which might have arisen

in the civil dispute in question. Finally, assessing the proceedings

as a whole, the Commission finds no indication that they were unfairly

conducted in any other way.

It follows that this part of the application is inadmissible as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. Under Article 13 (Art. 13) of the Convention the applicants

complain that the Minister of Justice arbitrarily refused them leave

to file an extraordinary appeal to the Supreme Court against the

judgments given by the Olsztyn Regional Court and the Warsaw Court of

Appeal in the proceedings relating to the amendment of the entries made

in the real property register.

The Commission, noting that the applicants' complaint also

concerns the question of lack of access to the Supreme Court, which by

its nature falls within the scope of Article 6 para. 1 (Art. 6-1) of

the Convention cited above, has examined their complaint under Article

6 para. 1 and Article 13 (Art. 6-1+13) of the Convention read together.

Article 13 (Art. 13) of the Convention provides:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention embodies the "right to a court" of which the right to

access, that is the right to institute proceedings before a court in

civil matters, constitutes one aspect (see Eur. Court HR. Aydin v.

Turkey judgment of 25 September 1997, Reports of Judgments and

Decisions 1997-VI, p. 1894, para. 99).

On the other hand, Article 13 (Art. 13) of the Convention

guarantees the availability at the national level of a remedy to

enforce the substance of the Convention rights and freedoms in whatever

form they may happen to be secured in the domestic legal order (see,

Aydin v. Turkey judgment, loc. cit.).

In this context the Commission further recalls that neither

Article 6 para. 1 (Art. 6-1) nor Article 13 (Art. 13) of the Convention

do, however, guarantee the right to appeal or to a second level of

jurisdiction, the latter being recognised under Article 2 of Protocol

No. 7 (P7-2) only in respect of persons convicted of a criminal

offence. They do not, furthermore, require that there should be

several levels of jurisdiction. The Commission refers, in this respect,

to its established case-law (see, e.g. Nos. 10153/82, Dec. 13.10.86,

D.R. 49, p. 67; 10515/83, Dec. 2.10.84, D.R. 40, p. 258; 12275/86, Dec.

2.7.91, D.R. 70, p. 47; No. 12444/86 Comm. Report, 10.12.91 annexed to

Eur. Court HR. Pizzetti v. Italy judgment of 26 February 1993, Series A

no. 257, pp. 40-41, para. 41).

In the present case the applicants, who under Polish law were

entitled to - and did - lodge an appeal against the judgment given in

their case by the court of first instance, complain about the fact that

their further extraordinary appeal to the Supreme Court was not allowed

and, as a consequence, not examined by that court at the third level

of jurisdiction.

However, as the Commission has already observed, since no right

to appeal or to several levels of jurisdiction is guaranteed under the

Convention, a party to court proceedings cannot claim a Convention

right to extraordinary appellate remedies in the highest domestic court

against the final judgment given in his case, in particular in addition

to the normal appeals already available before the ordinary courts.

It follows that this part of the application is inadmissible as

being incompatible ratione materiae with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2).

4. The applicants further complain under Articles 6 and 13

(Art. 6, 13) of the Convention, and Article 1 of Protocol No. 1 (P1-1)

to the Convention that the Olsztyn District Prosecutor failed to

institute criminal proceedings against the members of the board of

directors of the company "Centon".

However, the Commission recalls that neither Article 6 (Art. 6)

nor any other provision invoked by the applicants guarantees a right

to have criminal proceedings instituted against third persons (No.

9777/82, Dec. 14.7.83, D.R. 34, p. 158; Nos. 29692/96 and 34612/97,

Dec. 22.10.97, unpublished).

It follows that this part of the application is inadmissible as

being incompatible ratione materiae with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2).

5. Under Article 1 of Protocol No. 1 (P1-1) to the Convention the

applicants also complain that, regardless of numerous claims submitted

by them to the Polish courts, they are still being deprived of their

right to recover their property which was unlawfully acquired by the

company "Centon".

However, the Commission is not required to decide whether or not

the facts submitted by the applicants in support of this complaint

disclose any appearance of a violation of the Convention as, according

to Article 26 (Art. 26) of the Convention, it "may only deal with the

matter after all domestic remedies have been exhausted".

In this respect the Commission notes that it is true that the

applicants have submitted various claims to the Polish courts, both in

relation to the amendment of entries made in the court real property

register and to the amendment of entries made in the court commercial

register. Also, since the company which was in possession of their

property became insolvent, they requested, on 19 May 1997, the judge-

receiver to order that their property be returned to them.

It further notes that, as early as 29 May 1992, a general meeting

of the shareholders of the company "Centon" passed a resolution

obliging the board of directors to conclude a notarised agreement with

the applicants under which the ownership of the real property in

question would be transferred back to them. Accordingly, the company's

executive organ was obliged to give a specific "declaration of will"

which, in case of its failure to do so, could have been replaced by a

judgment given under Section 64 of the Polish Civil Code, if the

applicants had sued the company for such a judgment. Moreover,

regardless of the fact that the company concerned had, in the meantime,

become insolvent, the trustee appointed in the relevant insolvency

proceedings could, and still can, be sued, according to Section 60 of

the Insolvency Law, in all proceedings relating to claims against the

insolvent estate, including a claim under Section 64 of the Polish

Civil Code.

The Commission therefore considers that the applicants still have

at their disposal a domestic legal channel enabling them to remedy the

situation complained of.

It follows that this part of the application must be rejected for

non-exhaustion of domestic remedies according to Article 27 para. 3

(Art. 27-3) of the Convention.

6. Lastly, the applicants complain under Article 6 para. 1

(Art. 6-1) of the Convention that the proceedings relating to their

application for the entries made in the Olsztyn District Court

Commercial Register to be struck out of the register lasted for an

unreasonably long time.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Commission's Rules of Procedure, to give notice of the complaint to the

respondent Government.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicants'

complaint that the proceedings relating to their

application for entries made in the Olsztyn District Court

Commercial Register to be struck out of the register lasted

for an unreasonably long time;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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KOPCZYNSKI v. POLAND

KOPCZYNSKI v. POLAND