Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33230/96

by Jan PELKA and others

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 13 September 1996

by Jan PELKA and others against Poland and registered on

27 September 1996 under file No. 33230/96;

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 facts of the case, as submitted by the applicants, may be

summarised as follows:

The applicants are five Polish citizens. J. Pelka and L. Tarwid

were born in 1908 and 1918. They are retired and reside in Warsaw. W.

Jankowski was born in 1927. He is retired and resides in Gdynia. B.

Kurnatowska was born in 1929 and resides in Warsaw. P. Szczesniewski,

born in 1944, is a lawyer and resides in Warsaw.

In 1949 the local authorities, acting in the name of the State

Treasury, took over the property of the applicants' predecessor in

title, located in Gdynia. Later the property was transferred to the

Navy.

In 1950 the property was nationalised by decision of the

Presidium of the Regional Council (Prezydium Wojewódzkiej Rady

Narodowej).

In 1958 the Navy informed the applicants that their property had

been nationalised.

In 1963 the Nationalisation Appeals Board of the Ministry of

Internal Affairs (Komisja Odwolawcza do spraw wywlaszczen przy

Ministrze Spraw Wewn*trznych) dismissed the applicants' appeal against

the 1950 decision.

In 1991 the applicants made a request to the Ministry of

Ownership Transformation (Ministerstwo Przeksztalcen Wlasnosciowych)

for restitution of the property concerned. In the same year the

applicants requested the Navy to restore the property. Subsequently

the Navy refused to make restitution, relying on the nationalisation

decision of 1950 and the dismissal of the applicants' appeal of 1963.

On 6 June 1991 the applicants requested the Minister of Planning

and Construction (Ministerstwo Gospodarki Przestrzennej i Budownictwa)

to restore the property.

On 4 May 1992 the Gdynia municipality refused to restore the

property.

On 26 November 1993 the Minister of Planning and Construction,

in reply to the applicant's letter of 6 June 1993, sent the case-file

to the Gdynia City Hall.

On 4 January 1994 one of the applicants (J.P.) submitted a

request to the Gdansk Governor (Wojewoda Gdanski) to have the 1992

decision of the Gdynia municipality set aside.

On 31 May 1994 the Governor set aside the decision of the Gdynia

municipality of 4 May 1992 and ordered that the case be reconsidered.

The Governor considered that the parties had not participated in the

proceedings in 1992 and that an administrative hearing should have been

held in order to establish the manner in which the property was being

used by the Navy.

On 23 March 1994 the applicants lodged a request with the

Regional Office (Urz*d Rejonowy) to have the 1950 decision of

nationalisation declared null and void as having been in flagrant

breach of the nationalisation laws applicable at that time.

On 7 August 1995 the Regional Office informed the parties that

administrative proceedings had been commenced to examine the lawfulness

of the nationalisation decision of 1963 and that the date of the visit

of the property had been fixed.

On 28 August 1995 the Navy guard officer at the property did not

allow either the applicants or the representative of the Regional

Office to enter the property.

On 23 August 1995 the Gdansk Governor transmitted the applicant's

request of 23 March 1994 to have the nationalisation decision declared

null and void to the Minister of Planning and Construction.

On 15 September 1995, in reply to an enquiry by the District

Office of 6 September 1995, the Navy declared that the property was

necessary for the purposes of national defence.

On 22 September 1995 the applicants and a representative of the

Regional Office were allowed to enter the property and to see it from

the outside.

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 applicants complain under Article 1 of the Protocol N° 1 that

their right to enjoyment of possessions has been breached by the

failure of the administrative authorities to declare the

nationalisation decision of 1950 null and void. The applicants contend

that the property concerned should not have been nationalised as it did

not meet the relevant criteria set out in the nationalisation laws

applicable at the material time.

THE LAW

The applicants complain under Article 1 of Protocol N° 1

(P1-1) that their right to enjoyment of possessions has been breached

by the failure of the competent authorities to declare the

nationalisation decision of 1950 null and void.

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 such right existed (No. 7655-7657. Dec. 4.10.77,

D.R. 12, p. 111). Moreover, 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).

The Commission further recalls that "possessions" within the

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

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

possessions" of the applicants. The property of the applicants'

predecessors in title was taken over by the State Treasury in 1949. It

was further nationalised in 1950. Neither the applicants nor their

predecessor in title have been able to exercise any ownership right

over the property concerned.

It remains to be examined whether the applicants could have any

"legitimate expectation" of realising their claim to restitution of

property. It is true that they contend that the nationalisation

decision was in breach of the nationalisation laws applicable at the

relevant time and should therefore be declared null and void.

However, this claim has not been substantiated. Further, it does not

transpire from the case-file that their claim has been acknowledged by

any of the authorities concerned. It is true that the Gdynia Regional

Office, upon the applicants' request to declare the nationalisation

decisions null and void in accordance with Article 155 of the Code of

Administrative Procedure, instituted administrative proceedings.

However, these proceedings were intended only to examine whether those

decisions had been lawful. The institution of such proceedings does

not amount to a recognition of the applicants' property rights.

The Commission further observes that, in any event, the

applicants did not exhaust applicable domestic remedies as they have

not shown that they lodged a complaint about the failure of the

administration to issue a final administrative decision with the

Supreme Administrative Court.

It follows that the applicants have not shown that they have any

relevant "existing possessions" or any legally recognised claims which

could be regarded as "legitimate expectations" of enjoying property

rights. Moreover, the Convention does not guarantee a right to

restitution of property (cf., mutatis mutandis, No. 23131/93, Dec.

4.3.96, D.R. 85-A, p. 65, No. 25497/94, Dec. 17.5.95, D.R. 85-A,

p. 126).

The application is therefore incompatible ratione materiae with

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

para. 2 (Art. 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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PELKA AND OTHERS v. POLAND

PELKA AND OTHERS v. POLAND

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