Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25695/94

by Stanislaw SZCZEPANSKI

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 18 October 1995, 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 March 1994 by

Stanislaw SZCZEPANSKI against Poland and registered on 17 November 1994

under file No. 25695/94;

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 1935, is retired and

resides in Sianów.

The applicant had a savings account at the Sianów Cooperative

Bank (Bank Spóldzielczy w Sianowie). The savings in the bank were

guaranteed by the State Treasury in accordance with the provisions of

the Banking Act of 1989. On 28 January 1994 the Koszalin Regional

Court (S*d Wojewódzki) declared the bankruptcy of the bank and an

administrator was appointed.

The applicant apparently unsuccessfully requested the

administrator to order reimbursement of his savings with interest due.

He argued that the State Treasury was obliged to reimburse him as the

savings of the clients of the bank were guaranteed by the State in

accordance with the Banking Act.

In reply to the applicant's subsequent complaint, the Ministry

of Finance informed him on 25 February 1994 that under the Banking Act

the State was obliged to reimburse those clients of the banks who had

benefited from the State guarantees. However, this obligation became

effective only after the bankruptcy proceedings were completed and only

to the extent that the satisfaction of the creditors' claims from the

estate in bankruptcy proved impossible. Therefore the State was under

no obligation to reimburse the clients of the bank before the

bankruptcy proceedings were terminated.

In reply to the applicant's complaint of 7 March 1994, the

National Bank of Poland, Department of Supervision, informed him on

12 April 1994 that it was the administrator who was competent to deal

with all issues relating to reimbursement of his savings. The

administrator was obliged to prepare a list of creditors of the bank

within three months from the date of the declaration of bankruptcy.

In reply to the applicant's complaint to the Ombudsman, he was

informed in a letter of 13 April 1994 that in September 1992 the

Ombudsman had requested the Supreme Court (S*d Najwyzszy) to adopt a

resolution to resolve a legal problem arising out of the application

of the Banking Act in respect of the temporal scope of the State

Treasury obligations towards the clients of bankrupt banks. On

18 February 1994 the Supreme Court had refused to do so. Subsequently

the Ombudsman requested the Prime Minister to take a position in

respect of the practice of the Government relating to the State

guarantees for savings deposited in certain bankrupt banks. The

Ombudsman indicated that the application, in particular by the Ministry

of Finance, of the relevant provisions of the Banking Act was contrary

to the actual content of these provisions and to their purpose.

On 26 April 1994 the Ombudsman informed the applicant of the

Prime Minister's reply, according to which the State was under no

obligation to reimburse the clients of the bankrupt banks before the

bankruptcy proceedings were terminated.

On 24 January 1995 the Koszalin Regional Court informed the

applicant that he would have to pay an advance court fee if he wished

to pursue an action against the State Treasury. Apparently the

applicant did not pay the fee.

Relevant domestic law and practice

Article 49 para. 1 of the Banking Act provides that the State

Treasury shall guarantee the savings deposited at the banks owned by

the State and certain other banks.

On 7 June 1994 the Ombudsman brought an action with the

Constitutional Court (Trybunal Konstytucyjny), asking for an

interpretation of Article 49 para. 1 of the Banking Act. In

particular, he requested the Court to consider whether a client of a

bankrupt bank having the State guarantees had a civil claim against the

State Treasury for reimbursement of his entire savings and interest due

as at the date of the declaration of bankruptcy. Alternatively, the

Court was asked to consider whether such a claim existed only after the

bankruptcy proceedings had been terminated and then only to the extent

that the reimbursement of the capital and interest due as at the date

of bankruptcy had proved impossible.

In its decision of 12 January 1995 the Constitutional Court found

that the liability of the State Treasury under Article 49 para. 1 of

the Banking Act, became effective on the date of the declaration of

bankruptcy. It declared that the clients of such banks had a civil

claim against the Treasury.

COMPLAINTS

The applicant complains that his right to peaceful enjoyment of

his possessions has been violated as the State Treasury refuses to

reimburse his savings deposited at the bankrupt bank as required by the

Banking Act.

THE LAW

The applicant complains that his right to peaceful enjoyment of

his possessions has been violated as the State Treasury refuses to

reimburse his savings deposited at the bankrupt bank as required by the

Banking Act.

The Commission examined this complaint under Article 1 of

Protocol No. 1 (P1-1) of the Convention, which provides:

"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 the events from which the

present application originates, i.e. the bankruptcy of the Sianów

Cooperative Bank on 28 January 1994, occurred prior to 10 October 1994,

the date on which Poland ratified Protocol No. 1 to the Convention.

It is undisputable that under the Banking Act of 1989 the applicant has

a claim against the State Treasury to have his savings deposited at the

bankrupt bank reimbursed. The only issue which was in dispute between

the applicant and the State Treasury was the time from which this

obligation became effective. It appears from the decision of the

Constitutional Court of 12 January 1995 that this claim became

effective as from the date of the declaration of the bankruptcy, i.e.

28 January 1994.

Since it was not until 12 January 1995, the date of the decision

of the Constitutional Court, that it became clear that the applicant

could present his claim as from the date of the declaration of

bankruptcy, the Commission finds that it cannot reject the application

as being outside its competence ratione temporis.

The Commission is not required to decide whether or not the facts

submitted by the applicant in support of his complaint disclose any

appearance of a violation of Article 1 of Protocol No. 1 (P1-1) to the

Convention as Article 26 (Art. 26) of the Convention provides that the

Commission "may only deal with the matter after all domestic remedies

have been exhausted".

In the present case the Commission observes that the applicant

had at his disposal a civil claim against the State Treasury, arising

from the provisions of the Banking Act relating to the State

guarantees, as clearly indicated by the decision of the Constitutional

Court of 12 January 1995. Thus it was open to him to bring an action

in a civil court. The applicant did not do so. Therefore he has not

exhausted the remedies available under Polish law. It follows that the

application must be rejected under Article 27 para. 3 (Art. 27-3) of

the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

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

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SZCZEPANSKI v. POLAND

SZCZEPANSKI v. POLAND

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