Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26612/95

by Anna POLETEK

against Poland

The European Commission of Human Rights sitting in private on

27 November 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

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 13 December 1994

by Anna POLETEK against Poland and registered on 3 March 1995 under

file No. 26612/95;

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 Canadian citizen born in 1920, is retired. She

resides in Sudberg in Canada. Before the Commission she is represented

by Mr. Zbigniew Cichon, a lawyer practising in Kraków.

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

summarised as follows:

1. Particular circumstances of the case

In 1976 the applicant's brother S.P. had obtained a decision of

the Biskupice Mayor declaring that by virtue of the Agricultural

Property Regulation Act of 1971 ("the 1971 Act") he had become the

owner of a plot of land located in S.

On 1 September 1991 the applicant requested the Kraków Governor

(Wojewoda) to institute proceedings in order to annul this decision

according to Article 155 et seq. of the Code of Administrative

Procedure. She submitted that it was unlawful as the plot had belonged

to their parents who had died intestate. Thus, she had been entitled

to inherit half of the plot. In order to obtain a decision in his

favour her brother had wrongly informed the administrative authorities

that she had donated her property right to him, whereas she had never

done so. Moreover, the 1971 Act prohibited bestowing on Polish

agricultural users land belonging to aliens. As in 1976 she had

already had Canadian citizenship, her land could not have lawfully been

bestowed on her brother.

On 9 March 1992 the Governor discontinued the proceedings. He

considered that since 1 January 1992 the State Treasury Land Property

Act of 19 October 1991 ("the 1991 Act") specifically prohibited the

institution or continuation of proceedings in order to annul decisions

on ownership of agricultural real property which had been issued in

accordance with the 1971 Act.

The applicant appealed to the Minister of Agriculture against the

decision to discontinue the proceedings. She submitted that it was

unlawful as it breached Article 7 of the Constitution, guaranteeing the

enjoyment of private property. She contended that the decision was in

breach of Article 6 of the Convention as it denied her access to court.

She indicated that whereas the 1991 Act expressly excluded access to

court in such cases as from 1 January 1992, she had instituted

proceedings on 9 September 1991. Had the authorities decided her case

more speedily, she would have obtained a decision on the merits. She

argued that she should not be penalised for the delay on the part of

the authorities in deciding her case.

On 31 August 1993 the Minister of Agriculture upheld the

Governor's decision of 9 March 1992. He indicated that, in accordance

with Article 63 of the 1991 Act, the general provisions of the Code of

Administrative Procedure concerning amendment or annulment of final

administrative decisions did not apply to decisions confirming the

ownership of agricultural real property issued in accordance with the

1971 Act.

The applicant filed an appeal to the Supreme Administrative Court

(Naczelny S*d Administracyjny), complaining that she was deprived of

access to court. She relied, inter alia, on Article 6 para. 1 of the

Convention.

On 24 November 1994 the Supreme Administrative Court dismissed

the applicant's appeal. The Court considered that its only task was

to examine whether administrative decisions were lawful. In the

present case the Minister, in deciding that the lawfulness of the 1976

decision could not be examined, had properly applied Article 63 of the

1991 Act. The Court also noted that, according to a decision of the

Supreme Court, this provision could not be interpreted as opening a

possibility to file an action with a civil court against a decision on

ownership of property in accordance with the 1971 Act. Thus, no

judicial or administrative remedy was available against the decision

at issue.

2. Relevant domestic law and practice

Article 155 of the Code of Administrative Procedure of 1960

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,

a final administrative decision can be annulled if it has been issued

by an authority which had no jurisdiction or without a legal basis or

contrary to the applicable law.

Article 63 of the State Treasury Land Property Act of

19 October 1991 provides that the general provisions of the Code of

Administrative Procedure concerning amendment or annulment of final

administrative decisions do not apply to decisions confirming the

ownership of agricultural real property issued in accordance with the

Agricultural Property Regulation Act of 1971.

A decision of the Supreme Court of 30 June 1992 states that

Article 63 of the State Treasury Land Property Act does not confer a

right to claim before a civil court that such decisions are invalid

(decision III CZP 73/92).

COMPLAINTS

The applicant complains under Article 6 of the Convention that

she was denied access to court. She submits that the State Treasury

Land Property Act of 19 October 1991 expressly deprived her of any

possibility of having her case examined by a court. She maintains that

the original decision of 1976 was evidently unlawful as it had

transferred property owned by her as an alien to her brother. She

further submits that the 1991 Act came into force when the proceedings

were already pending and that she should not be penalised for the delay

on the part of the authorities in deciding the case. She submits that

in principle the Code of Administrative Procedure allows institution

of proceedings in order to annul any final administrative decision.

She maintains that there was no reasonable justification for excluding

such proceedings with regard to decisions concerning agricultural

property.

The applicant further complains under Article 6 para. 1 of the

Convention that the proceedings exceeded a reasonable time within the

meaning of this provision. She submits that the proceedings concerned

only points of law, that no evidence had to be taken during the

proceedings and that therefore the decisions should have been taken

more speedily.

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

that as a result of denial of access to court she was deprived of her

property rights.

THE LAW

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

Convention that she was denied access to court. She submits that the

State Treasury Land Property Act of 19 October 1991 expressly deprived

her of any possibility of having her case examined by the court.

Article 6 (Art. 6) of the Convention states, insofar as relevant:

"In the determination of his civil rights and obligations (...)

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

The Commission observes that in the present case the legislation

at issue, i.e. the 1991 State Treasury Land Property Act, came into

force on 1 January 1992 as regards non-availability of judicial review

in the cases arising out of the application of the Agricultural

Property Regulation Act of 1971. It is true that the 1991 Act had

procedural aspects in that it expressly excluded access to court in

such cases. However, it also affected the applicant's situation in

that it ultimately extinguished any possible claim to property of the

land in question that the applicant might have had until 1 January

1992. This was confirmed by the Kraków Governor's decision of 9 March

1992. Accordingly, the applicant ceased to have any arguable civil

right at the time when this decision was taken (cf. the findings below

concerning the applicant's complaint under Article 1 of Protocol No.

1) (P1-1). 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".

It follows that this part of the application is incompatible

ratione temporis with the provisions of the Convention within the

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

2. The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention that the proceedings exceeded a reasonable

time within the meaning of this provision.

The Commission's competence to examine individual petitions

against Poland became effective on 1 May 1993. The Commission

therefore concludes that insofar as the applicant complains about the

events prior to that date, this part of the application is outside the

competence ratione temporis of the Commission, and therefore

incompatible with the provisions of the Convention within the meaning

of Article 27 para. 2 (Art. 27-2).

As regards the occurrences after 30 April 1993, the Commission

recalls that Article 6 (Art. 6) is not applicable to proceedings

concerning the recognition of a "right" which has no legal basis in the

State in question (No. 12763/87, Dec. 14.7.88, D.R. 57 p.216). The

Commission notes that the applicant ceased to have any arguable civil

right at the latest on 9 March 1992. It follows that this part of the

application is incompatible ratione materiae with the provisions of the

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

Convention.

3. The applicant also complains under Article 1 of the Protocol

No. 1 (P1-1) that as a result of denial of access to court she was

deprived of her property rights.

The Commission recalls the Convention organs' case-law, according

to which a person complaining of an interference with his right to

property must show that such a right existed (No. 12154/86, Dec.

12.10.88, D.R. 58, p. 62). Moreover, the guarantee of the property

rights set out in the second sentence of para. 1 of Protocol No. 1 to

the Convention is aimed only at deprivation of property, and not at

regulation by private law of the rights of private individuals (No.

13021/87, Dec. 8.9.88, D.R. 57, p. 268). In the present case the

applicant's parents died intestate. In 1976 the applicant's brother

obtained a decision declaring that he had become owner of a plot of

land belonging to the estate of their parents. From 1976 to 1991 the

applicant failed to take any steps in order to secure the rights to

which she claims she would have been entitled by inheritance, and the

State Treasury Land Property Act deprived her of the possibility of

taking the matter to the court. The Commission considers that the

applicant has not therefore shown that her property right in question

existed.

It follows that this complaint is manifestly ill-founded within

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

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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POLETEK v. POLAND

POLETEK v. POLAND

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