Lexploria

Application No. 25791/94

by Malgorzata KIRCHMAYER

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 12 April 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 1 September 1994

by Malgorzata KIRCHMAYER against Poland and registered on

28 November 1994 under file No. 25791/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 28 June 1995 to communicate the

application;

- the information submitted in the Government's letters of 18 and

28 December 1995;

- the information submitted in the applicant's letter of

29 December 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1925, is a retired

engineer residing in Kraków.

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

summarised as follows:

On 8 February 1990 the applicant and other heirs of former owners

of a gardening firm "Emil Freege" in Kraków requested the Minister of

Agriculture to quash his decisions of 1950 and 1958, which had

nationalised the firm as they had been unlawful.

On 1 October 1991 the applicant complained to the Supreme

Administrative Court (Naczelny S*d Administracyjny) about the

Minister's failure to reply to her request.

In a letter to the applicant of 24 June 1992 the Ministry of

Agriculture admitted that the legal requirements for nationalisation

of the property in question had not been met. A state-owned firm which

had received the property had made significant expenditures and refused

to give it back to the former owners. Moreover, the applicant's request

could not be complied with as there were no financial resources

available in the budget to cover the compensation to which they would

be entitled. It was a general policy to suspend the restitution of

properties which had been unlawfully nationalised until general

legislative changes concerning nationalised property were introduced.

In its judgment of 12 October 1992 the Supreme Administrative

Court ordered the Minister of Agriculture to issue a decision within

fourteen days from the service of the judgment. The Court observed

that the Code of Administrative Procedure obliged the administration

to issue decisions within fourteen days, and in complex cases within

two months. In the present case all applicable time-limits had elapsed.

As these time-limits were not complied with, the applicant

complained to the Prime Minister.

On 1 February 1992 the Minister of Agriculture refused to quash

the decisions of 1950 and 1958. The Minister observed that the firm and

the land belonging thereto had been nationalised by virtue of

provisions which had allowed for nationalisation if it was in the

State's interest. Given the state policy in the 1950's, hostile to

private owners, the firm would certainly have gone bankrupt. Thus it

had been necessary to nationalise it in order to preserve its potential

for the national economy. The Minister concluded that the

nationalisation decisions were lawful.

On 22 December 1993, upon the applicant's appeal, the Supreme

Administrative Court quashed the decision. The Court considered that

the decisions on 1950 and 1958 were contrary to the law as the property

in question did not belong to any category of property which was

subject to nationalisation. In particular, the Minister of Agriculture

had failed to establish whether the property had been subject to

nationalisation as being of an industrial character or as constituting

real property. In sum, the Minister had failed to establish elements

which were essential for taking the contested decision.

On 17 November 1995 the Minister of Agriculture quashed the

nationalisation decisions of 1950 and 1958, these decisions being in

breach of the relevant legal provisions. This made it possible to

restore the ownership of the property concerned to the applicant.

COMPLAINTS

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

that her right to enjoyment of possessions has been violated by the

failure of the Ministry of Agriculture to comply with the judgment of

the Supreme Administrative Court and to issue the required decision,

quashing the decisions on nationalisation. This decision would

inevitably have to be in her favour as the Court had clearly stated

that those decisions were unlawful.

The applicant complains under Article 13 of the Convention that

the authorities ignore her complaints about the Minister's failure to

comply with the Court's judgment.

The applicant further complains under Article 6 of the Convention

that the Minister of Agriculture has disregarded the valid court

judgment, thus rendering the judicial redress which she had obtained

devoid of any practical significance.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 September 1994 and registered

on 28 November 1994.

On 28 June 1995 the Commission decided to communicate the

application to the respondent Government and invited them to submit

their observations on the admissibility and merits of the complaints

under Article 1 of the Protocol No. 1 to the Convention before

13 October 1995. At the Government's request, this time-limit was

subsequently extended until 22 December 1995.

By letter of 18 December 1995 the Government requested an

extension of the time-limit until 15 January 1996. In the same letter

the Government informed the Commission that on 17 November 1995 the

Minister of Agriculture had quashed the nationalisation decisions of

1950 and 1958. In view of this development the applicant had been

asked whether she wished to maintain her application. The Agent of the

Government further informed the Commission that he had requested the

State Treasury (Agricultural Property Agency) not to file an appeal to

the Supreme Administrative Court against the decision of

17 November 1995.

On 22 December 1995 the extension of the time-limit for the

submission of the Government's observations until 15 January 1996 was

granted.

On 28 December 1995 the Government informed the Commission that

the State Treasury (Agricultural Property Agency) had not appealed

against the decision of 17 November 1995. This decision had thus

become final and enforceable.

On 29 December 1995 the applicant informed the Commission that

the decision of 17 November 1995 satisfied her claim for restitution

of the nationalised property. She further declared that she wished to

withdraw her application.

REASONS FOR THE DECISION

The Commission notes that on 17 November 1995 the Minister of

Agriculture had quashed the nationalisation decisions of 1950 and 1958,

these decisions being in breach of the relevant legal provisions. The

Minister's decision made it possible to restore the ownership of the

property concerned to the applicant. In view of this development the

applicant expressed her wish to withdraw her application.

Having regard to Article 30 para. 1 (a) of the Convention, the

Commission notes that the applicant does not intend to pursue her

application. The Commission finds no special circumstances regarding

respect for human rights as defined in the Convention which require

examination of the application to be continued, in accordance with

Article 30 para. 1 in fine of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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KIRCHMAYER v. POLAND

KIRCHMAYER v. POLAND

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