Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25696/94

by Maria KUCZYNSKA

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 21 March 1994 by

Maria KUCZYNSKA against Poland and registered on 17 November 1994 under

file No. 25696/94;

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 1955, is a pensioner

residing in Poznan.

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

summarised as follows:

Particular circumstances of the case

In 1975 the applicant opened a housing savings account in the

State Savings Bank (Panstwowa Kasa Oszcz*dnosci) and became a member

of a housing cooperative in Poznan.

On 4 May 1994 the applicant requested the Supreme Court (S*d

Najwyzszy) to make an exception from the relevant legal provisions and

to allow that she be paid her housing savings at the State Savings Bank

reassessed so as to offset effects of inflation and a housing award so

reassessed (see Relevant domestic law) as she was in a very difficult

financial situation.

In a letter of 23 May 1994 the Supreme Court informed the

applicant that it lacked competence to deal with her request as it was

not a party to the bank account contract. It was only the State

Savings Bank which was competent to take any decisions as to any

exceptions or modifications to be made as regards the execution of the

contract of the housing savings account and the applicant's rights

resulting therefrom.

On 30 May 1994 the applicant requested the State Savings Bank to

pay her the reassessed sum of her savings and of the housing award.

In a letter of 23 June 1994 the State Savings Bank informed the

applicant that under relevant legislation the housing award could only

be granted to persons who had complied with the requirements set forth

by the Council of Ministers' order. Persons who did not comply with

those requirements, i.e. who had not bought or built an apartment or

a house, were only entitled to reimbursement of their housing savings

with interest. The regulations in force did not provide for an

entitlement to receive the reassessed savings.

Relevant domestic law

Under the Council of Ministers' order of 22 June 1993 the persons

who have accumulated savings on the housing savings accounts in the

State Savings Bank opened before 23 October 1990, which had remained

opened for not shorter than five years, were entitled to housing award

if they had bought or built a house or apartment or adapted non-housing

space to housing purposes. It was the State Treasury which financed

those payments and technically they were to be carried out by the State

Savings Bank.

In its resolution of 29 July 1993 the Supreme Court decided that

under the provisions of the Civil Code as amended in 1990 the housing

savings were not subject to reassessment by the State Treasury which

would offset the results of inflation. In taking this decision the

Court had regard to the provisions of the Civil Code pertaining to a

possibility of reassessment of pecuniary obligations in view of

inflation. These provisions clearly excluded such a possibility in

respect of sums deposited on bank accounts.

As regards the housing savings awards, the Supreme Court further

decided that those awards were not subject to reassessment either. The

Court observed, inter alia, that the problem concerned approximately

five million citizens who had accumulated housing savings. A

reassessment of the housing awards for all the persons concerned by the

State Treasury would not be economically feasible as it would put an

undue burden on the state budget. The Court further observed that, in

any event, the Council of Ministers' order of 22 June 1993 provided for

a partial reassessment of such awards in the circumstances set forth

therein.

COMPLAINTS

The applicant complains in substance under Article 1 of Protocol

No. 1 to the Convention that under legislation in force she can only

obtain from the savings bank her savings accumulated from 1975 with

interest and is not entitled to obtain the housing award to which are

entitled the persons who have built or bought an apartment or a house.

She also complains that her savings are not subject to reassessment

which would offset the effects of inflation and as a result, the sum

to which she is entitled is ridiculously small and is in no proportion

to the actual prices of houses or apartments. She complains that she

had opened her housing savings account in 1975, acting on assumption

that she would obtain an apartment within the framework of the State-

supported housing cooperatives scheme, but she did not obtain it.

She further complains that the Supreme Court's resolution of

29 July 1993 deprived her of access to a court competent to examine her

claim to receive the housing award and a reassessed sum of her savings.

THE LAW

1. The applicant complains in substance under Article 1 of Protocol

No. 1 (P1-1) that under legislation in force she cannot obtain either

a reassessed sum of her housing savings or the housing award.

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 established entitlements for persons who had

accumulated savings on the housing savings accounts in the State

Savings Bank and this legal situation remains in force. Therefore the

present application 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.

The Commission recalls its case-law according to which an

applicant is excused from pursuing a domestic remedy if he shows that

on the basis of well-established case-law it would be of no avail (No.

11945/84, Dec. 12.3.87, D.R. 51, p. 186; No. 10027/82, Dec. 5.12.84,

D.R. 40, p. 100).

In the present case the applicant has at her disposal a civil

action against the State Savings Bank in which she could have claimed

payments of the reassessed sum of her savings and of the housing award.

However, the Commission considers that in the light of the relevant

legislation and of the Supreme Court's resolution of 29 July 1993, her

action would clearly have been bound to fail. In these circumstances,

the applicant should be exempted from an obligation to exhaust this

remedy.

The application cannot, therefore, be declared inadmissible for

non-exhaustion of domestic remedies within the meaning of Article 26

(Art. 26) of the Convention.

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

possessing the housing savings account. These measures comprised an

entitlement to the housing award to the persons who have built or

bought a house or an apartment. The persons who were not entitled

thereto could obtain a reimbursement of their housing savings with

interest. 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 housing for all persons

within the framework of the former State-supported cooperative system.

Under this legislation the applicant is entitled to obtain the sum of

her savings, accumulated from 1975, with interest. The Commission

observes that the applicant was not deprived of her possessions within

the meaning of the first paragraph of Article 1 of Protocol No. 1

(P1-1) to the Convention, nor did the State exercise "control of

property" in her regard.

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.

Insofar as the applicant complains that she did not obtain an

apartment within the framework of the State-supported cooperative

housing system, this complaint is incompatible ratione temporis with

the Convention in respect of events preceding 10 October 1994, the date

on which Poland ratified Protocol No. 1 to the Convention. As regards

events after that date, the Commission recalls that Article 1 of

Protocol No. 1 (P1-1) to the Convention does not recognise any right

to become the owner of property (No. 11628/85, Dec.9.5.86, D.R. 47, p.

270). 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).

5. The applicant further complains that the Supreme Court's

resolution of 29 July 1993 deprived her of access to a court competent

to examine her claim to receive the reassessed sum of her housing

savings at the State Savings Bank and the housing award.

The Commission observes that the resolution of the Supreme Court

concerns only the substantive claims of persons in situations similar

to the applicant's and does not limit or exclude access to civil court

as regards claims of persons who had opened the housing savings

accounts. It remained open to the applicant to pursue her claim for

the reassessed sum of her housing savings and the housing award before

a civil court, had she wished to do so. It is true that in the light

of the relevant legislation and the Supreme Court's resolution the

applicant's action would have been bound to fail. However, this

resolution does not have any bearing on access to court within the

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

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

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KUCZYNSKA v. POLAND

KUCZYNSKA v. POLAND

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