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OBODYNSKI v. POLAND

Doc ref: 33753/96 • ECHR ID: 001-3800

Document date: July 2, 1997

Inbound citations: 1
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Cited paragraphs: 0
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Outbound citations: 1

OBODYNSKI v. POLAND

Doc ref: 33753/96 • ECHR ID: 001-3800

Document date: July 2, 1997

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 33753/96

by Adam OBODYNSKI

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

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 3 January 1996 by

Adam OBODYNSKI against Poland and registered on 13 November 1996 under

file No. 33753/96;

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 born in 1947, is retired and

resides in Warsaw.

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

summarised as follows:

Particular circumstances of the case

In November 1984 the applicant lodged a civil action with the

Warszawa-Praga District Court (S*d Rejonowy), claiming repossession of

an apartment which he co-owned with his wife, and from which he had

allegedly been unlawfully expelled in January 1984.

In a judgment of 11 February 1994 the Warszawa-Praga District

Court ordered the repossession of the apartment co-owned by the

applicant from which he had been expelled by his wife in 1984. On

29 September 1994 the Warsaw Regional Court (S*d Wojewódzki) confirmed

the judgment which, accordingly, became final.

Subsequently, upon the defendant's request, the Minister of

Justice filed an extraordinary appeal against this judgment with the

Supreme Court (S*d Najwyzszy). On 7 July 1995 the Supreme Court set

aside the impugned judgment and dismissed the applicant's claim,

considering that the action for repossession had become devoid of

purpose as in 1987 the defendant had sold the apartment concerned.

Relevant domestic law

Article 344 of the Civil Code provides that a possessor can claim

repossession before a court against a person who has deprived him of

possession, regardless of whether he is a bona fide possessor or

whether the factual possession is in conformity with the law.

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 to the

Convention that the judgment of the Supreme Court by quashing the

judgment ordering the repossession deprived him of his apartment and

thus of his property.

He further complains under Article 6 of the Convention that the

proceedings lasted ten years and eight months and thus exceeded a

reasonable time.

THE LAW

1. The applicant complains under Article 1 of Protocol No. 1 (P1-1)

to the Convention that the judgment of the Supreme Court deprived him

of his property.

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

The Commission observes that in the present case the applicant

was involved as a plaintiff in the civil proceedings, claiming

repossession of the apartment which he had co-owned with his wife.

The Commission further notes that although the refusal to order

repossession of the apartment was pronounced by a court judgment and

therefore by an act of a State organ, it was based on the provisions

of the Civil Code. The Supreme Court quashed the final judgment

ordering the repossession and dismissed the applicant's claim,

considering that the action for repossession had become devoid of

purpose as the defendant had sold the property in 1987 and it was

therefore no longer in her possession; thus the legal conditions under

which an action for repossession could be successful were not met. The

Commission recalls its case-law, according to which judicial decisions

under legal provisions governing private law relations between

individuals and which, provide for one person to surrender a possession

to another, do not infringe the right to peaceful enjoyment of

possessions (No. 12462/86, Dec. 13.7.87, D.R. 53, p. 234). The

impugned judgment, stemming from general civil law rules governing the

protection of factual possession and the legal requirements under which

such protection can be granted by the courts cannot be considered

contrary to Article 1 of Protocol No. 1 (P1-1).

The Commission accordingly does not find that there has been any

infringement of the applicant's right to the peaceful enjoyment of his

possessions or that he has been deprived of his possessions in breach

of Article 1 of Protocol No. 1 (P1-1).

It follows that this complaint is manifestly ill-founded within

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

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

Convention that the repossession proceedings exceeded a reasonable

time.

The Commission recalls that Poland recognised the competence of

the Commission to receive individual applications "from any person,

non-governmental organisation or group of individuals claiming to be

a victim of a violation of the rights recognised in the Convention

through any act, decision or event occurring after 30 April 1993". The

Commission therefore considers that the period to be considered begins

only on 1 May 1993, when Poland's recognition of the right of

individual petition took effect (cf. Eur. Court HR, Foti and others v.

Italy judgment of 10 December 1982, Series A no. 56, p. 18, para. 53).

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

Rules of Procedure, to give notice of this complaint to the respondent

Government.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's complaint

concerning the length of the civil proceedings,

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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