AS TO THE ADMISSIBILITY OF

                      Application No. 32724/96

                      by Józef MORDARSKI

                      against Poland

     The European Commission of Human Rights (Second Chamber) sitting

in private on 4 March 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 28 September 1995

by Józef Mordarski against Poland and registered on 22 August 1996

under file No. 32724/96;

     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 residing in Krasne Potockie, is

a farmer.  He is represented before the Commission by Mr Zbigniew

Cichon, a lawyer practising in Kraków.

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

summarised as follows:

Particular circumstances of the case

     In 1966 the applicant's mother informally donated her farm

located in Krasne Potockie to the applicant.  However, no relevant

entry in the local land register was made and, as a result, the title

was not transferred to him.

     In a will made in 1974 she bequeathed the farm to the applicant.

     On 27 December 1979 the applicant obtained a decision of the

Chelmiec Mayor (Naczelnik gminy) declaring that by virtue of the

Agricultural Property Regulation Act of 1971 ("the 1971 Act") he had

become the owner of plots of land Nos. 460, 145 and 146 located in

Krasne Potockie.

     On 17 October 1980 the Regional Commission for Regulation of

Property (Wojewódzka Komisja do Spraw Uwlaszczenia) set this decision

aside and declared that it was the applicant and his mother who were

co-owners of the plots.  Apparently, on an unspecified later date this

decision was quashed.

     In a will made in 1980 the applicant's mother bequeathed the farm

to the applicant's brother S.  She died in 1982.  On 6 June 1982 the

Nowy S*cz District Court held that the applicant's brother had acquired

the estate of their mother, including the farm in Krasne Potockie in

its entirety.

     On 4 April 1990 the Nowy S*cz District Court (S*d Rejonowy)

dismissed the action lodged by the applicant and his brother S., by

which they claimed that the court should declare that the applicant had

acquired the ownership of the plot No. 461 by virtue of the 1971

Agricultural Property Regulation Act.  The court found that the

applicant had not been the actual possessor of the plot concerned on

4 November 1971, which, under the Act, was a date decisive for the

decision sought by him.  Consequently, he did not satisfy the relevant

requirement for acquisition of agricultural property.

     On 12 June 1990 the Nowy S*cz District Court dismissed the

applicant's action by which he claimed that the Court should declare

that he had acquired the title to plots Nos. 145, 145 and 460 by virtue

of the 1971 Agricultural Property Regulation Act.

     On 16 October 1990 the Nowy S*cz Regional Court (S*d Wojewódzki)

dismissed the applicant's appeal against this judgment.  The judgment

was rendered by a panel composed of judges E.A., A.S. and J.M.

     On 4 June 1991 the Nowy S*cz Regional Court ordered the applicant

to vacate the farm and to transfer it to his brother S.

     Apparently in 1993 the applicant lodged an action with the Nowy

S*cz District Court, claiming that he had acquired the title to the

farm by prescription.  He contended that his mother had donated the

farm to him in 1966 and that he had been its only de facto possessor

since that time.  Accordingly, he had acquired the title by

prescription, the legal requirement of an uninterrupted bona fide

possession for twenty years having been complied with.

     On 16 November 1994 the Nowy S*cz District Court dismissed the

applicant's action.  The court established that the farm consisted of

four plots Nos. 145, 146, 460 and 461.  It was the applicant and his

mother who had used the plots Nos. 145, 146, 460 and 461, whereas the

plot No. 461 was, since 1981, in the de facto possession of the

applicant's brother.  Even though it was true that the applicant had

been working on the farm with his mother, there was no evidence to

support the conclusion sought by the applicant that his mother had

donated or had intended to donate the farm to him.  The donation, which

had allegedly been made to the applicant in 1966, had not been drawn

up as a notarial deed as required by law.  As a result, the title to

the land had not been transferred to the applicant from his mother.

Moreover, the document of donation appeared to have been forged.  From

1975 until his mother's death in 1982 the applicant had worked at the

farm with his mother.  It transpired in particular from the applicant's

mother's wills drawn up in 1974 and 1980 that she had considered

herself the owner and possessor of the farm, competent to donate or

bequeath it if she wished to do so.  Accordingly, it was the

applicant's mother who had been the possessor and owner of plots

Nos. 145, 145 and 460 until her death, whereas the applicant's brother

had been in de facto possession of the plot No. 461 from 1981.

Consequently, the applicant did not satisfy with the legal requirement

for acquisition of property by prescription under the Civil Code as he

had not possessed the plots in question as a sole de facto bona fide

possessor for twenty years.

     In taking this decision the Court relied on the material

contained in the case-files of the inheritance proceedings, terminated

by the judgment of 6 June 1982, and of the proceedings concerning the

applicant's claims for acquisition of title to the property.  The Court

further heard evidence from five witnesses, and questioned the

applicant and his two brothers.

     The applicant lodged an appeal with the Regional Court.  He

submitted that the District Court had wrongly assessed the evidence as

regards the periods in which he had actually been in bona fide

possession of the farm.  He further contended that the Court's findings

were incompatible with certain evidence.  In particular, the Court had

failed to take into consideration the evidence given by certain

witnesses as to the fact that throughout the material period the

applicant had been running the farm and paying the taxes.  The Court

did not consider certain documents from which it transpired that he had

been selling merchandise from the farm.  The Court further failed to

consider the fact that the local land inventory listed the applicant

and his mother as the possessors of the farm.

     At the hearing before the Regional Court on 23 February 1995 the

applicant challenged the judges E.A., J.M. and A.S.  He called their

impartiality into question as they had also constituted the panel which

had dismissed the applicant's appeal in the proceedings terminated by

the judgment of 16 October 1990.

     On 8 March 1995 the Nowy S*cz Regional Court dismissed the

applicant's challenge of the judges, considering that the legal

requirements for a judge to step down, i.e. a personal relation with

the party which would be capable of casting doubt on his or her

impartiality, were not complied with.

     On 25 April 1995 the Nowy S*cz Regional Court dismissed the

applicant's appeal against the judgment of 16 November 1994.  The Court

considered that the lower court had not been arbitrary in its

assessment of the evidence.

Relevant domestic law

     Under Article 172 of the Civil Code, the factual possessor of

real property acquires ownership of that property if he or she was its

sole actual possessor for twenty years, if he or she was in good faith,

and for thirty years, if in bad faith.

     Under the 1971 Agricultural Property Regulation Act, the de facto

sole  actual possessor of agricultural real property acquired ex lege

ownership of it if it was in his or her de facto possession on

4 November 1971.

     In pursuance of Article 31 of the Code of Civil Procedure,

a judge steps down, upon the motion of one of the parties, if between

him or her and one of the parties there exists a personal relation

which may cast doubt on his or her impartiality.

     Pursuant to Article 385 of the Code of Civil Procedure,

applicable at the relevant time, the appellate court may rehear

evidence which has already been heard by the first-instance court or

hear additional evidence if it decides that this would contribute to

the acceleration of the proceedings.  Following the results of such a

hearing, the court may establish the facts differently from what was

done by the first-instance court.

COMPLAINTS

     The applicant complains under Article 6 of the Convention that

the proceedings concerning his claim for acquisition of ownership by

prescription were unfair in that the Nowy S*cz District Court, in the

written grounds of its judgment of 11 November 1994, failed to consider

evidence given by two witnesses who had stated that the applicant had

been the de facto sole possessor of the farm.  He further submits that

the court wrongly assessed the evidence and thereby reached an

incorrect decision.

     The applicant further complains that the Regional Court lacked

impartiality in the proceedings upon appeal in that those proceedings

were conducted by the same three judges of the Regional Court who, by

a judgment of 16 October 1990, had dismissed the applicant's appeal

against the judgment of the Nowy S*cz District Court of 12 June 1990

dismissing his claim for acquisition of ownership by virtue of the

administrative laws on regulation of agricultural property.  As those

judges had followed the reasoning of the lower court that the applicant

had not been the sole de facto possessor of the land on 4 November

1971, which under the applicable laws was a decisive date for the

decision sought by him, it was highly unlikely that the same judges

would set aside the judgment of 16 November 1994 which was in line with

their decision of 16 October 1990.

     The applicant complains under Article 13 of the Convention that

no appeal to a higher court lay against the dismissal of the challenge

in respect of the judges.

THE LAW

1.   The applicant complains under Article 6 (Art. 6) of the

Convention that the proceedings concerning his claim for acquisition

of ownership by prescription were unfair in that the Nowy S*cz District

Court, when taking  its judgment of 11 November 1994 failed to consider

evidence given by two witnesses.  He further submits that the court

wrongly assessed the evidence and thereby reached an incorrect

decision.

     Article 6 (Art. 6) of the Convention in its relevant part reads:

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

     ..., everyone is entitled to a fair ... hearing within a

     reasonable time by an independent and impartial tribunal ..."

     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 in the Convention.  In

particular, it is not competent to deal with any 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 No. 21283/93, Dec. 5.4.94, D.R. 77-A, pp. 81, 88).

     The Commission further recalls that it is for the national courts

to assess the evidence before them.  The Commission's task is to

ascertain whether the proceedings considered as a whole, including the

way in which evidence was taken, were fair (Eur. Court HR, Asch v.

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

     The Commission observes that in the present case, in the

proceedings concerning prescription, it fell to the courts to establish

whether the applicant had been the de facto possessor of the farm for

the period relevant for the purposes of Article 172 of the Civil Code.

In order to do so, the Nowy S*cz District Court relied on the material

contained in the case-files of the inheritance proceedings and of the

proceedings concerning the applicant's claim for the acquisition of

property under the Agricultural Property Regulation Act of 1971.  The

Court further heard evidence from five witnesses and questioned the

applicant and his two brothers, and examined various documents.  The

Commission finally notes that in the appellate proceedings the Regional

court examined the applicant's complaint about the allegedly arbitrary

and superficial assessment of the evidence which the applicant had

raised in his appeal and concluded that the lower court had not been

arbitrary in its assessment of the evidence.  The Commission considers

that the courts had ample evidence at their disposal and that they

reached their conclusions, having  considered the material submitted

to them.  In conclusion, there is nothing in the applicant's complaints

to show that in the present case the domestic courts in this respect

acted in an unfair or arbitrary manner.

     It follows that this complaint must be declared inadmissible as

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

(Art. 27-2) of the Convention.

2.   The applicant further complains that the Regional Court lacked

impartiality in the prescription proceedings in that those proceedings

were conducted by the same three judges of the Regional Court who, by

a judgment of 16 October 1990, had dismissed the applicant's appeal

against the judgment of the Nowy S*cz District Court of 12 June 1990

dismissing his claim for acquisition of ownership by virtue of the

administrative laws on regulation of agricultural property.

     The Commission recalls that the existence of impartiality for the

purposes of Article 6 para. 1 (Art. 6-1) of the Convention must be

determined according to a subjective test, that is on the basis of the

personal conviction of a particular judge in a given case, and also

according to an objective test, that is ascertaining whether the judge

offered guarantees sufficient to exclude any legitimate doubts in this

respect. Under the objective test, it must be determined whether, quite

apart from the judge's personal conduct, there are ascertainable facts

which may raise doubts as to his impartiality.  What is decisive is

whether the accused's fear that a particular judge lacks impartiality

can be held to be objectively justified (see Eur. Court HR, Hauschildt

v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, para. 48;

Ferantelli and Santangelo v. Italy judgment of 7 August 1996,

Reports 1996-III, No. 12, para. 56).

     The Commission first notes that in the present case two separate

proceedings are concerned.   However, there was a certain factual nexus

between those proceedings in that the first-instance courts had to

examine in both proceedings whether the applicant was the sole actual

possessor of the farm.

     However, the Commission further observes that in the proceedings

which ended with the Nowy S*cz Regional Court's judgment of 16 October

1990 the applicant requested the Court to declare that he had acquired

property of the farm by virtue of the Agricultural Property Regulation

Act of 1971.  Pursuant to the relevant provisions of that Act,

a prerequisite for such a decision was a finding that the plaintiff had

been a sole de facto possessor of the land concerned on 4 November

1971.  The Nowy S*cz District Court refused to allow the applicant's

action in these proceedings, having found that at the crucial date he

had not been in such a possession of this plot as it was his mother who

had been the owner and the possessor of the farm.

     The Commission further notes that in the subsequent civil

proceedings the applicant sought a decision to the effect that he had

acquired title to the entire farm  by prescription.  Under the relevant

provisions of the Civil Code, in order to grant the applicant's action

it was necessary for the courts to establish that he had possessed all

the plots of the farm for twenty years as a bona fide sole de facto

possessor.  The District Court dismissed this claim on 16 November 1994

having found that the applicant did not satisfy this requirement. The

Regional Court, having examined the applicant's complaints as to the

assessment of the evidence,  in turn upheld the contested judgment on

25 April 1995.  The panel of the Regional Court composed of the same

three judges took the decision in the proceedings upon appeal in both

sets of proceedings.

     The Commission therefore considers that, in the two sets of the

proceedings concerned, it fell to the first-instance courts to

establish different sets of factual circumstances. Thus, whatever

findings the District Court had made in the first proceedings, they

were of a certain relevance to the prescription proceedings, but by no

means could they be considered as conclusive for the outcome of the

second set of proceedings before the District Court.

     The Commission further considers that the alleged lack of

impartiality relates only to the appellate proceedings. In such

proceedings it falls to the court to examine alleged procedural

shortcomings of the proceedings before the first-instance court.  It is

true that under Polish law the appellate court can exceptionally hear

evidence in order to establish the facts.  However, in the present case

in the prescription proceedings the Regional Court  limited itself to

examining the applicant's complaints.  Thus, the judicial review did

not in fact have any bearing on any questions of fact.  In these

circumstances, the Commission cannot find that the fact that the same

judges decided in the appellate proceedings in two cases adversely

affected the impartiality of the Regional Court in the prescription

proceedings, thus rendering the proceedings incompatible with the

requirements of Article 6 para. 1 (Art. 6-1) of the Convention.

     It follows that this complaint must be declared inadmissible as

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

(Art. 27-2) of the Convention.

3.   The applicant finally complains under Article 13 (Art. 13) of the

Convention that no appeal to a higher court lay against the dismissal

of the challenge in respect of the judges.

     The Commission, having regard to its above conclusions under

Article 6 para. 1 (Art. 6-1) of the Convention, does not find it

necessary to examine the complaint also under Article 13 (Art. 13).

The requirements of Article 13 (Art. 13) are less strict than, and are

absorbed by, those of Article 6 para. 1 (Art. 6-1) (cf. Eur. Court HR,

Sporrong and Lonnroth v. Sweden judgment of 23 September 1982, Series

A no. 52, p. 31, para. 88).  Accordingly, no separate issue arises

under Article 13 (Art. 13) 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