AS TO THE ADMISSIBILITY OF

                      Application No. 29454/95

                      by Marian SWACHA

                      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 15 April 1995 by

Marian SWACHA against Poland and registered on 5 December 1995 under

file No. 29454/95;

      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 1930, is a retired

technician, residing in Sroda Sl*ska.

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

summarised as follows:

      In 1982 the applicant opened a special bank account with the

State Savings Bank (Powszechna Kasa Oszcz*dnosci) within the framework

of a State-organised scheme of distribution and pre-paid sale of cars.

The opening of the contract was tantamount to a conclusion of a

preliminary purchase contract with a State-owned firm "Polmozbyt"  for

a car to be delivered in 1989 at the latest.  The order in which the

cars were to be delivered was determined by drawing a lot.

      The applicant regularly paid certain sums to his savings account,

but he did not obtain a car within the framework of the scheme.  In

1992 the applicant on several occasions complained thereof to the

headquarters of the bank, to the Ministry of Finance and to other

authorities.  He was informed that the rules of the scheme had changed

since in view of the transition in the economy it had become impossible

for the State budget to finance the scheme on the scale originally

envisaged.  Under the 1990 Act on State Financed Prepaid Sale of Cars

the applicant could not realistically expect that his contract would

be carried out on its original terms.  Instead, he had under the 1990

Act other rights of a considerable pecuniary value.

      On 18 November 1992 the applicant lodged an action against the

Wolów branch of the State Savings Bank with the Wroclaw Regional Court

(S*d Wojewódzki), claiming payment of a sum equivalent to the current

market price of a car as indicated in the contract or delivery of a

car.  On 29 June 1993 the Court transferred the case to the Wolów

District Court (S*d Rejonowy) as it was the latter which had

jurisdiction to examine the case.

      On 1 March 1994 the Wolów District Court dismissed the

applicant's claim.  The Court found that the applicant had the account

at the State Savings Bank and that he had regularly paid monthly

instalments towards the price of a car as agreed in 1982.  From 1982

to 1994 the cars had been delivered to 261 participants who had

accounts in the Wolów branch of the State Savings Bank.  The

applicant's number on the list of participants, determined by drawing

a lot, was 1125.  The Court  went on to observe that as a result of the

transition in the Polish economy it had become impossible for the State

budget to continue financing of the scheme, i.e. paying contributions

towards the price of every car from the State budget.  Therefore the

obligations of "Polmozbyt" and of the State towards the participants

in the scheme had been altered and reduced in pursuance of the 1990 Act

on the State Financed Prepaid Sale of Cars.  The applicant had not

availed himself of the possibilities provided for by this Act, even

though their financial value was considerable.  It was true that the

applicant's claim to have a car sold to him on conditions set out in

the original contract of 1982 had not been fulfilled.  However, it was

"Polmozbyt" who was obliged to fulfil these claims.  The State Savings

Bank was only acting as a representative of "Polmozbyt" and carrying

out certain technical and banking acts relating to the scheme.  The

contract between the bank and the applicant provided only for running

a specialised bank account and the bank had properly discharged those

obligations, including the calculation of interest which had

accumulated on the account. Consequently, the bank was not under the

obligation to reimburse the applicant the price of a car or to sell a

car to him.  The Court further observed that the 1990 Act had been

examined by the Constitutional Court (Trybunal Konstytucyjny) in 1991

and the Court found that it was compatible with the constitutional

guarantees of property rights.

      The applicant filed an appeal and requested to be granted

exemption from the court fee.  On 28 April 1994 the Wolów District

Court refused to grant exemption, considering that the applicant had

not shown that his financial situation made it impossible for him to

pay the fee.  On 22 June 1994 the Wroclaw Regional Court dismissed the

applicant's appeal against this decision, considering that the lower

court was right in finding that the applicant had failed to show that

he would not be able to pay the court fee in view of his difficult

financial situation.  In fact, he did not submit a document to

substantiate his financial situation at the time of filing the appeal,

but only relied on such a document submitted at the time when he had

requested an exemption from the court fee to be paid upon lodging his

action with the first instance court.

      On 20 July 1994 the Wolów District Court rejected the applicant's

appeal against the judgment of 1 March 1994, the relevant court fee not

having been paid.

      On 8 August 1994 the Wroclaw Court of Appeal rejected the

applicant's appeal against the decision of the Wroclaw Regional Court

of 22 June 1994 as no appeal lay against the decision of an appellate

court.

      The applicant did not pay the court fee and did not pursue the

matter before the courts.  He complained on numerous occasions to

various authorities about the fact that he could not buy the car on the

conditions set out in 1982.  In reply he was informed of the contents

of the rights of the participants in the scheme under the relevant

legislation.

Relevant domestic law

      In 1990 the Act on State Financed Prepaid Sale of Cars was

enacted by the Parliament.  It provided that the persons who had

participated in the scheme but had not obtained a car, could obtain a

partial financing of the purchase of a car by the State at the moment

when they were invited to purchase the car from "Polmozbyt".  It

further set forth a right to compensation for persons deciding to

withdraw from the scheme  upon reimbursement of their savings with

interest.  It further envisaged that persons participating in the

scheme were entitled to customs tax exemption if they imported a car

from abroad.  This exemption could be sold or transferred to a third

party.  The Act stated that the scheme would be financed within the

limits of financial means earmarked for this purpose in the State

budget for a given year.  The entitlement would be realised in the same

order as had been determined by lot in 1982-1986 for the distribution

of cars.

      On 4 December 1990 the Constitutional Court decided that the 1990

Act was compatible with the Constitution.

      On 21 January 1994 a new legislation was adopted, pertaining to

the rights of persons participating in the scheme.  It provided that

they were entitled to withdraw their savings from the bank with

interest.  They were further entitled to compensation, payable upon

withdrawal.  The Act stated that the scheme would be financed within

the limits of financial means earmarked for this purpose in the State

budget for a given year.  The entitlement would be realised in the same

order as had been determined by lot in 1982-1986 for the distribution

of cars.  It also remained open for the participants to withdraw all

their savings from the accounts, with the exception of one million

zlotys, and this allowed them to retain the right to the compensation

on the conditions set out above.  Further, the participants were

entitled to purchase certain categories of cars produced in Poland or

abroad at the net price without VAT.

COMPLAINTS

      The applicant complains in substance under Article 1 of

Protocol No. 1 to the Convention that as a result of the changes of

legislation it has become impossible for him to purchase a car on the

terms set forth in the 1982 contract.  He submits that the State failed

to respect its obligations stemming from this contract.

      He further complains under Article 6 para. 1 of the Convention

about the outcome of the proceedings before the civil courts, in which

his claim for fulfilmennt of the 1982 contract was dismissed, alleging

this outcome was not fair.

      He complains that the Constitutional Court in its decision of

4 December 1990 decided that the 1990 Act was compatible with the

Constitution.  He submits that the Court thus sanctioned the State's

failure to comply with its contractual obligations.  He submits that

he did not have access to court as regards his civil rights under the

1982 contract.

THE LAW

1.    The applicant complains in substance under Article 1 of

Protocol No. 1  (P1-1) that under the legislation in force it has

become impossible for him to buy a car on the terms set out in the 1982

contract.

      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 replaced rights and obligations of persons

participating in the State financed prepaid sale of cars scheme with

certain new rights and that this legal situation remains in force.  The

applicant complains about the manner in which the new legislation

affected and continues to affect his property rights under the scheme

in question.  Therefore his complaint 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.

      In the present case the applicant brought an action against the

State Savings Bank with the Wolów District Court.  He subsequently

failed to lodge an appeal with the Regional Court against the first

instance judgment.  However, the Commission is not required to

determine whether the applicant complied with the requirements of

Article 26 (Art. 26) of the Convention as the complaint under Article

1 of Protocol No. 1 (P1-1) to the Convention must in any event be

declared manifestly ill-founded for the following reasons.

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

participating in the car purchase scheme who had not yet been able to

purchase cars within its framework.  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

fulfilment of the State obligations stemming from the scheme in its

original content as set out by the relevant contracts concluded in

1981-1982.

      The Commission notes that under the legislation of 1990 these

measures comprised a right to compensation for persons deciding to

withdraw from the scheme.  It further envisaged that persons

participating in the scheme were entitled to exemption from customs

duties if they imported a car from abroad, this entitlement being

transferable to third parties.  The applicant did not avail himself of

any of those possibilities.  In 1994 new legislation was enacted which

restricted the rights of the participants to a compensation payable

upon withdrawal from the scheme.

      The Commission further notes that the applicant still possesses

his bank account with his savings accumulated since 1982.  This account

was not closed by the bank or expropriated and the applicant is

entitled to obtain the sum of his savings, with legal interest.  It is

true that the applicant did not acquire a car within the scheme.  It

is also true that the actual time of waiting for the possibility of

obtaining a compensation upon withdrawal guaranteed under the 1990 and

1994 legislation is bound to be long, given that these claims are being

satisfied only within the limits of financial means earmarked for this

purpose in the State budget for a given year and in the order

determined by lot in the years 1982-1986.  However, the Commission

considers that the applicant was not deprived of his possessions within

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

first paragraph, while the State exercised "control of property" within

the meaning of the second paragraph in this regard.  The Commission

considers, however, that the considerations of public policy which led

to modifications of the rights foreseen in the original scheme

constitute legitimate grounds for these modifications, even though it

is true that the scope of the rights which the participants might have

reasonably expected to acquire under the scheme was restricted by the

legislation concerned. The Commission considers that, in the result,

a fair balance has been struck between the conflicting public interests

and the protection of the individual's property rights, the

participants in the scheme not being required to bear an excessive

individual burden.

      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.

5.    The applicant further complains under Article 6 para. 1

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

before the civil courts.  He complains that the Constitutional Court

in its decision of 4 December 1990 decided that the 1990 Act was

compatible with the Constitution.  He submits that he did not have

access to court as regards his civil rights under the 1982 contract.

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

      "In the determination of his civil rights and obligations

      ... everyone is entitled to a fair ... hearing ... by an

      independent and impartial tribunal established by law."

a)    As regards the complaint pertaining to the decision of the

Constitutional Court, the Commission recalls that the applicability of

Article 6 (Art. 6) of the Convention depends on whether the proceedings

at issue concern the determination of a person's "civil rights and

obligations".  The Commission observes that under Polish law an

individual does not have a standing in the proceedings before the

Constitutional Court.  In the present case the applicant was not a

party to the proceedings before this Court and the law did not allow

him to be a party in such proceedings.  Moreover, the Constitutional

Court's exclusive task in those proceedings was to review the

constitutionality of the legal provisions at issue irrespective of

their application to any particular case.  Therefore the proceedings

at issue did not concern the applicant's civil rights and obligations

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

Consequently, this provision is inapplicable thereto.

      It follows that part of the application is incompatible ratione

materiae with the Convention within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

b)    Insofar as the applicant complains about lack of access to a

court competent to determine his rights and obligations stemming from

the contract which he concluded in 1982, the Commission observes that

the applicant had in fact access to court and he availed himself of

this right when lodging a civil action against the State Savings Bank

with the Wroclaw Regional Court which transferred the case to the Wolów

District Court.  The Court, having examined the applicant's claim,

dismissed it as under the relevant legislation his claim could not be

satisfied.  Thus, there is no indication that the  applicant's right

to access to court within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention was in any way restricted or denied under Polish law.

The fact that the applicant's action was dismissed is irrelevant in

this context, as the Commission is not called upon to examine under

Article 6 (Art. 6) of the Convention whether the domestic courts have

committed any errors of fact or law.

      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