Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30642/96

by Jadwiga PILATKOWSKA

against Poland

The European Commission of Human Rights sitting in private

on 20 October 1997, the following members being present:

Mr S. TRECHSEL, President

Mrs G.H. THUNE

Mrs J. LIDDY

MM E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 September 1995

by Jadwiga PILATKOWSKA against Poland and registered on 26 March 1996

under file No. 30642/96;

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 18 February 1997 and the observations in reply submitted by

the applicant on 23 April 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1946, is an economist,

residing in Warsaw.

A. Particular circumstances of the case

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

summarised as follows:

In 1945 the applicant's father was resettled from Tulicze,

a locality in the territories which had earlier belonged to Poland, to

the territory of Poland within the boundaries traced as a result of the

Second World War.

On 16 May 1991 the Warsaw District Office informed the applicant

that her claim for compensation for her father's property abandoned in

the former eastern territories of Poland had been registered as

required by Article 88 of the 1985 Land Administration and

Expropriation Act.

In a judgment of 8 September 1991 the Warsaw District Court

declared that the applicant had inherited one third of her late

father's estate.

In a judgment of 8 September 1994 the Warsaw District Court

established the composition of the property abandoned by the

applicant's father in Tulicze in 1945.

In an assessment of 25 October 1996 an expert in real estate

declared that the value of the applicant's father's property in Tulicze

of which the applicant had inherited one third pursuant to the 1994

judgment, was equivalent to 1.208.136 zlotys in current prices.

On 27 November 1996 the applicant, together with a group of

persons having a claim to compensation for property abandoned in the

former Polish eastern territiories, participated in a tender for

purchase from the State Treasury of a plot of land located in Legnica,

which had been possessed by the Soviet army before their withdrawal

from Poland. As a result of the tender the applicant and the other

persons acquired property of buildings located on the plot and a right

to use the land for ninety-nine years.

In a decision of 3 February 1997 the Director of Legnica Regional

Office (Kierownik Urz*du Rejonowego) stated that, in accordance with

the Land Administration and Expropriation Act and its by-laws, a sum

of 1.154.771 zlotys, being the value of the property in Tulicze as

estimated by the October 1996 expert report, would be counted towards

the price to be paid by the applicant and two other persons designated

in the judgment of 8 September 1991 for the purchase of 153/1000 of

property located in Legnica whose number in the local land register was

571/1.

By a notarial deed drawn up on 25 February 1997 on the basis of

the administrative decision of 3 February 1997 the purchase by the

applicant and nineteen other persons of the land and buildings located

in Legnica and registered in the local land register under No. 571/1

was established. The applicant thereby acquired the co-ownership of

the buildings and the right to use the land for ninety-nine years. A

sum of 1.154,771 zlotys, being the value of the property abandoned in

the former Eastern territories of Poland of which the applicant had

inherited one third by virtue of the Warsaw's District Court's judgment

of 8 September 1991 was counted towards the price. It covered the price

of co-ownership of the buildings and the payment for the right to use

the land for fifty-seven years.

B. Relevant domestic law

Article 81 of the Land Administration and Expropriation Act of

29 April 1985 provides that the persons who abandoned property in the

former eastern territories of Poland due to the Second World War are

entitled to compensation therefor. This compensation is to take the

form of either real property (or a lease for ninety-nine years) of the

same value purchased from the State Treasury or of deduction of the

value of the property owned in the East from the price of the property

(or a lease for ninety-nine years) purchased from the State Treasury.

Article 81 para. 5 of the same Act provides that the compensation

is conditional on the registration of the claim with the local

authority of the State administration not later than 31 December 1992.

Article 5 para. 1 of the Local Administration Act of 10 May 1990

provides that the property of the State possessed by the local State

administration is transferred to the relevant local municipality.

COMPLAINTS

The applicant complains that her claim to be compensated for her

father's property abandoned in the former Eastern territories of

Poland, guaranteed under Polish law, cannot be satisfied.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 September 1995 and

registered on 26 March 1996.

On 14 October 1996 the Commission decided to communicate the

application to the respondent Government.

The Government submitted their observations on 18 February 1997.

The applicant replied on 23 April 1997.

THE LAW

The applicant complains that her claim to be compensated for her

father's property abandoned in the former Eastern territories of

Poland, guaranteed under Polish law, cannot be satisfied.

The Commission considers that the case falls to be examined

under Article 1 of Protocol No. 1 (P1-1) to the Convention, which

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."

However, under Article 25 (Art. 25) of the Convention, the

Commission may only deal with petitions from any person claiming to be

a victim of a violation of the rights set forth in the Convention. The

Commission recalls that the answer to the question whether an applicant

can claim to be a victim of a violation of the Convention depends

largely on the legal interest which the applicant has in a

determination of his allegations of Convention breaches (No. 9320/81,

Dec. 15.3.84, D.R. 36, p. 24). Someone who has obtained redress at the

domestic level for the alleged violations of the Convention cannot

claim to be a victim of those violations (No. 17926/91, Dec. 28.6.93,

D.R. 75, p. 167).

The Commission notes that in the present case the applicant in

February 1997 purchased from the State Treasury a co-ownership of the

plot located in Legnica registered in the local land register under No.

571/1 and that the entire value of her compensation claim under

Article 81 of the Land Administration and Expropriation Act was counted

towards the price of purchase. The Commission considers therefore that

the applicant's claim to be compensated for the property abandoned in

the former Eastern Polish territories has been fully satisfied and that

she has thereby obtained redress at the domestic level for the alleged

violation of the Convention. Under Article 25 (Art. 25) of the

Convention she can consequently no longer claim to be a victim of this

violation.

It follows that the application must be rejected in accordance

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

Menu

PILATKOWSKA v. POLAND

PILATKOWSKA v. POLAND

LEXI