Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28559/95

by Romuald RADWILLOWICZ

against Poland

The European Commission of Human Rights sitting in private on

14 October 1996, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 April 1995 by

Romuald RADWILLOWICZ against Poland and registered on 18 September 1995

under file No. 28559/95;

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

summarised as follows:

The applicant, a Polish citizen born in 1940, is a retired

railway clerk, residing in Kolobrzeg.

Particular circumstances of the case

In 1943 the applicant's parents were expelled from their house

in Porsa, a locality which before 1939 had belonged to Poland, and

deported to the Soviet Union. After the Second World War the

applicant's father apparently settled in Great Britain. He abandoned

in the former eastern territories of Poland his property in Porsa.

In 1964 the applicant's father bequeathed all his estate to his

wife. Should she not survive him, the estate would be inherited by the

applicant. In 1967 the applicant's father died.

On 24 January 1991 the Kolobrzeg District Office informed the

applicant that his claim for compensation for the property abandoned

in the former eastern territories of Poland had been registered under

No. 82243/60/90. At the same time the Office required him to submit

missing documents to substantiate his claim, i.e. a repatriation

certificate in the name of the applicant's mother, a description of the

property concerned or a court judgment establishing the composition of

this property and a court decision to the effect that the applicant had

inherited her mother's estate. The applicant did not submit these

documents.

In a judgment of 29 May 1991 the Kolobrzeg District Court (S*d

Rejonowy w Kolobrzegu) declared that the applicant's mother had

inherited the estate of her late husband, the applicant's father.

On 16 November 1993 the applicant's mother donated to the

applicant the rights to compensation for the property abandoned in the

former eastern territories of Poland, which constituted a part of her

inheritance from the applicant's father.

In 1994 the applicant and his mother filed an action with the

Koszalin Regional Court (S*d Wojewódzki w Koszalinie), requesting that

the Court establish that the donation of the entitlement to

compensation for the property concerned to the applicant by his mother

had been effected in accordance with the law.

In a judgment of 27 April 1994 the Koszalin Regional Court

established that the real estate concerned constituted a joint marital

property of the applicant's mother and father and that this property

had been abandoned as a result of their deportation to the Soviet Union

in 1943. The applicant's action was rejected.

As the applicant did not lodge an appeal against this judgment,

the Court was not obliged to prepare grounds for it.

Subsequently the applicant complained to various administrative

and legislative authorities, claiming that his entitlement to

compensation be realised.

B. Relevant domestic law

Article 81 of the Land Administration and Expropriation Act of

29 April 1985 provides that the persons who had abandoned property in

the former eastern territories of Poland due to the Second World War

or their heirs are entitled to compensation therefor. This

compensation is to take the form of either real property (or a lease

for ninety-nine years) of the same value purchased from the State

Treasury or of deduction of the value of the property owned in the East

from the price of the property (or a lease for ninety-nine years)

purchased from the State Treasury.

Article 81 para. 5 of the same Act provides that the compensation

is conditional on the registration of the claim with the local

authority of the state administration not later than 31 December 1992.

Article 5 para. 1 of the Local Administration Act of 10 May 1990

provides that the property of the State possessed by the local State

administration is transferred to the relevant local municipality.

On 22 June 1989 the Supreme Court (S*d Najwyzszy) issued a

resolution in interpretation of Article 81 of the 1985 Act to the

effect that the circle of persons authorised to receive the

compensation included the owner of the abandoned property, all his

heirs or one of them designated by the others. A transfer of the

entitlement to other persons was not possible.

COMPLAINTS

The applicant complains that his claim for compensation for his

father's property abandoned in the former territories of Poland cannot

be satisfied. Articles 7, 17 and 26 of the Convention are invoked.

THE LAW

The applicant complains that his claim for compensation for his

father's property abandoned in the former territories of Poland cannot

be satisfied. The Commission has examined this complaint under

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

Article 1 of Protocol No. 1 (P1-1) to the Convention 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 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 first observes that in a judgment of 27 April 1994

the Koszalin Regional Court rejected the action of the applicant and

his mother, who claimed that the Court establish that the donation of

the entitlement to compensation for the property concerned to the

applicant had been effected in accordance with the law. The applicant

did not request that written grounds of this judgment be prepared and

did not lodge an appeal with the second instance court. He did not,

therefore, comply wit the requirements as to exhaustion of domestic

remedies available to him under Polish law as set out in Article 26

(Art. 26) of the Convention. However, even assuming that the applicant

could be absolved from the obligation of exhausting domestic remedies

and that his complaint cold be considered notwithstanding the fact that

the above judgment was pronounced before 10 October 1994, i.e. before

the date on whcihc Poland ratified Protocol No. 1 to the Convention,

the application would have to be declared inadmissible for the

following reasons:

The Commission recalls that, according to the Convention organs'

case-law, "possessions" within the meaning of Article 1 of Protocol

No. 1 (P1-1) extend to a "legitimate expectation" to be able to have

an effective enjoyment of a property right (Eur. Court H.R., 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). The

Commission further recalls that a person complaining of an interference

with his property must show that such right existed (No. 7694/76, Dec.

14.10.77, D.R. 12 p. 131, No. 23131/93, Dec. 4.3.96, unpublished, No.

25497/94, Dec. 17.5.96, unpublished).

However, in the present case the Commission considers that in the

period after 10 October 1994 the applicant cannot be regarded as having

had a "legitimate expectation" under Polish law. According to Article

81 of the Land Administration and Expropriation Act, the persons who

enjoy the entitlement to compensation are either owners or their heirs

or one of the heirs designated by others. The applicant is neither an

owner of the property concerned nor an heir of the owner, his deceased

father. It is true that the applicant's mother purported to donate her

rights to compensation to the applicant. However, the decision of the

Supreme Court of 22 June 1989 clearly stated that the law does not

permit a transfer of the entitlement provided for in Article 81 of the

1985 Act to other persons. Moreover, the judgment of the Koszalin

Regional Court of 27 April 1994 did not uphold the applicant's claim

that the donation by his mother of the entitlement at issue be declared

valid. Therefore tha applicant has not shown that under Polish law he

possesses a property right, as the donation could not have resulted in

an effective transfer of the entitlement to him. Accordingly the

applicant cannot invoke Article 1 of Protocol No. 1 (P1-1) to the

Convention.

It follows that this part of the application must be declared

inadmissible as being incompatible ratione materiae with the Convention

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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RADWILLOWICZ v. POLAND

RADWILLOWICZ v. POLAND

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