Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28561/95

by Andrzej KITEL

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 January 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

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 8 July 1993 by

Andrzej KITEL against Poland and registered on 18 September 1995 under

file No. 28561/95;

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 1935, is a technician

residing in Pszczyna.

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

summarised as follows:

a) Particular circumstances of the case

In 1951 the State took over possession of a property belonging

to the applicant's father, a brick-making plant located in Pszczyna.

In 1958 the property was nationalised. In 1960 the Minister of

Construction declared this in a decision. Subsequently the plant was

in the possession of the Katowice Construction Ceramics Plant

(Katowickie Przedsi*biorstwo Ceramiki Budowlanej).

In 1989 the plant was sold to a third party.

In 1990 the applicant requested the Minister of Industry to

institute reprivatisation proceedings and to set aside the

nationalisation decisions.

On 4 September 1991 the Minister of Industry informed the

applicant that administrative proceedings had been instituted in

accordance with Article 61 para. 4 of the Code of Administrative

Procedure under case-file number PM-Zr-254/91 in order to establish

whether the nationalisation decision had been lawful. The applicant

was requested to submit information as to the current legal and factual

situation of the property.

On 10 June 1992, in reply to a query from the President's Office,

to which the applicant had complained about the lack of progress in the

proceedings, the Ministry informed the applicant that the decision

would be issued before the end of October 1992.

On 22 December 1992, in reply to the Ombudsman's query as to the

progress in the proceedings, the Ministry informed him that the

applicant's case had been given priority. However, the decision had

not been pronounced in view of the fact that it had so far been

impossible to find in the State Archives a copy of the inventory of the

plant made at the time of its takeover by the State in 1951. This

document was of crucial importance for the decision to be taken.

Further efforts would be made to find it.

On 12 August 1994 the applicant complained to the Supreme Audit

Chamber about the lack of progress in the proceedings. He submitted

that the plant concerned had not met the nationalisation criteria as

it employed 35 persons, whereas only plants employing more than 50

persons per shift had been subject to nationalisation. He submitted

that the former owners had never signed or been served with a copy of

the inventory to which the Ministry referred in its letter of

22 December 1992.

On 18 July 1994 and on 1 July 1995 the applicant again complained

to the Ombudsman about the lack of progress in the proceedings. He

submitted that the entry in the land register relating to the property

disclosed that the State Treasury was still the owner of the plant.

b) Relevant domestic law

Article 155 of the Code of Administrative Procedure permits the

amendment or annulment of any final administrative decision at any time

where necessary in the general or individual interest if this is not

prohibited by specific legal provisions. In particular, Article 156

para. 1 states that a final administrative decision can be annulled if

it has been issued without a legal basis or contrary to applicable

laws.

COMPLAINTS

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

that his right to enjoyment of possessions has been breached by the

failure of the Ministry of Industry to issue a decision setting aside

the nationalisation decisions of 1958 and 1960. The applicant argues

that the property concerned should not have been nationalised as it

did not meet the relevant criteria set out in the nationalisation laws.

THE LAW

The applicant complains under Article 1 of Protocol N° 1 (P1-1)

that his right to enjoyment of possessions has been breached by the

failure of the Ministry of Industry to issue a decision setting aside

the nationalisation decisions of 1958 and 1960.

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

relevant, reads as follows:

"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 Commission observes that Poland ratified Protocol No. 1 to

the Convention on 10 October 1994. It follows that the Commission is

competent to examine this complaint insofar as it relates to events

which occurred after that date.

The Commission recalls that, according to the Convention organs'

case-law, a person complaining of an interference with his property

must show that a property right existed (No. 7655-7657/76,

Dec. 4.10.77, D.R. 12, p. 111). On the other hand, Article 1 of

Protocol N° 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).

The Commission further recalls that "possessions" within the

meaning of Article 1 of Protocol No. 1 (P1-1) can be either "existing

possessions" (Eur. Court HR, Van der Mussele v. Belgium judgment of

23 November 1983, Series A no. 70, p. 23, para. 48) or claims, in

respect of which the applicant can argue that he has at least a

"legitimate expectation" of obtaining effective enjoyment of a property

right (Eur. Court HR, Pine Valley Developments v. Ireland judgment of

29 November 1991, Series A No. 222, p. 23, para. 51; Pressos Compania

Naviera S.A. v. Belgium judgment of 20 November 1995, Series A No. 332,

p. 21, para. 31). Moreover, the Commission recalls that the Convention

does not guarantee a right to restitution of property (No. 25497/94,

Dec. 17.5.95, D.R. 85-A, p. 126).

It is clear that the present case does not concern any "existing

possessions" of the applicant. The property of the applicant's father,

his predecessor in title, was taken over by the State Treasury in 1951.

It was nationalised in 1958. The nationalisation decision was further

confirmed by the decision of the Minister of Construction in 1960. The

applicant has not been able to exercise any ownership rights over the

property.

It remains to be examined whether the applicant could have any

"legitimate expectation" of realising his claim to either restitution

of the property or to compensation. It is true that he contends that

the nationalisation decisions were in breach of the nationalisation

laws applicable at the relevant time. The applicant argues in

particular that the property concerned was not subject to

nationalisation as it did not meet the criteria set out in the

nationalisation laws. However, he has not substantiated this claim by

any relevant documents. Further, it does not transpire from any

documents submitted by the applicant that his right has been

acknowledged by any of the authorities concerned. It is true that the

Ministry of Industry, upon the applicant's request to set aside the

nationalisation decisions, instituted administrative proceedings.

However, these proceedings, which were instituted under the generally

applicable provisions of the Code of Administrative Procedure

pertaining to annulment of any unlawful administrative decision, were

intended simply to examine whether those decisions had been lawful.

The institution of such proceedings does not amount to a recognition

of the applicant's property rights.

The Commission further observes that, in any event, the applicant

did not exhaust applicable domestic remedies as he has not shown that

he lodged a complaint with the Supreme Administrative Court about the

failure of the administration to pronounce a final administrative

decision.

It follows that the applicant has not shown that he has any

relevant "existing possessions" or any legally recognised claims which

could be regarded as "legitimate expectations" of enjoying property

rights.

The application is therefore incompatible ratione materiae with

the provisions of the Convention and must be rejected under Article 27

para. 2 (Art. 27-2).

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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KITEL v. POLAND

KITEL v. POLAND

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