Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24355/94

by Kazimierz KALUZA

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 January 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 7 February 1994

by Kazimierz Kaluza against Poland and registered on 8 June 1994 under

file No. 24355/94;

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 is a Polish citizen born in 1940. He is an

engineer, residing in Olawa.

In 1973 the applicant concluded a contract with the local state

administration for the use a plot of land in Olawa for 99 years. The

contract determined, inter alia, the rates to be paid each year. In

1990, as a result of the reform of the municipal administration, the

plot became the property of the municipality. On 16 September 1991 the

Board of the Olawa Municipal Council passed a resolution to increase

rates for use of the land owned by the municipality. On

18 September 1991 the Board informed the applicant of the increase.

The applicant and his neighbours filed a complaint about this

resolution to the Supreme Administrative Court. They argued that the

applicable law did not allow for an increase of the rates as they had

previously been determined in a civil contract between them as users

and the State as a former owner.

On 28 January 1992 the Supreme Administrative Court rejected the

applicant's complaint. The Court considered that the Board's

resolution, even though taken by the municipal administration, had not

been an administrative decision and that it was a civil court which

would be competent to entertain the complaint.

Upon the applicant's request, the President of the Supreme Court

filed an extraordinary appeal to the Supreme Court on 8 July 1992. He

argued that the applicable law on land planning did not authorise the

municipalities to raise rates for the land use unilaterally. Moreover,

the resolution of the Municipal Board, although affecting the

applicant's civil rights and not an administrative decision in a strict

sense, was undeniably an act of an administrative character. Thus, the

Administrative Court should have entertained the complaint.

On 22 October 1992 the Supreme Court dismissed the appeal. The

Court considered that the contentious issue of the increase of the

rates for the land use fell within the competence of a civil court.

The applicant filed a civil action with the Olawa District Court

requesting declaration that the rates which he should pay were those

established by the parties in 1973. On 18 May 1993 the District Court

dismissed the action as it found that the applicant only questioned the

manner in which the rates had been raised but not their actual sum

after the raise. Thus, he had no legal interest in a determination

that the original rates were still binding between the parties.

The applicant appealed to the Wroclaw Regional Court and

requested exemption from the advance court costs. On 23 June 1993 the

Court refused to grant exemption. On 27 August 1993 the Court

dismissed the appeal.

On 31 December 1993 the President of the Supreme Court refused

to file an extraordinary appeal on the applicant's behalf.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

the judgments concerned are arbitrary and in breach of law and equity.

He contends that the rates for the use of land should have remained

unchanged as they had been agreed between the parties in a contract

concluded as a notarial deed. He contends that the Courts lacked

impartiality and independence. The applicant alleges that the Courts

failed to take evidence properly and wrongly assessed the evidence.

THE LAW

1. Insofar as the applicant's complaints relate to a period prior

to 1 May 1993, the Commission recalls that Poland recognised the

competence of the Commission to receive individual applications "from

any person, non-governmental organisation or group of individual

claiming to be a victim of a violation by Poland 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 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).

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

Convention that the Courts lacked impartiality and independence. He

further complains that the judgments concerned are arbitrary and in

breach of law and equity. He contends that the rates for use of the

land should not have been unilaterally changed by one of the parties.

The Commission has examined these complaints in respect of the

period after 1 May 1993. However, under Article 19 (Art. 19) of the

Convention the only task of the Convention organs is to ensure the

observance of the obligations undertaken by the Parties to the

Convention. In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set out

in the Convention. The Commission refers on this point to its

established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3

p. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No.

7987/77, Dec. 13.12.79, D.R. 18 p. 31, 45).

It is true that the applicant also raises complaints under

Article 6 para. 1 (Art. 6-1) of the Convention about unfairness of the

proceedings. However, as regards the admissibility and assessment of

evidence, the Commission recalls that the admissibility of evidence is

primarily governed by the rules of domestic law, and as a general rule

it is for the national courts to assess the evidence before them. The

Commission's task is to ascertain whether the proceedings, considered

as a whole, including the way in which the evidence was submitted, were

fair (see Eur. Court.H.R., Lüdi judgment of 15 June 1992, Series A no.

238, p. 23, para.43).

In the present case the Commission has not found any elements

which could lead it to conclude that the right to a fair hearing was

not respected. There is no indication that in these proceedings the

applicant could not duly put forward his own submissions or that the

proceedings were otherwise unfairly conducted.

As regards the complaint concerning lack of impartiality and

independence of the courts, the Commission considers that the applicant

has not submitted any ascertainable facts which might raise doubts in

this respect. In particular he has not submitted any details which

could rebut the presumption of personal impartiality of the judges

involved or call into question the independence of the Courts dealing

with his case after 1 May 1993.

It follows that the remainder of the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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KALUZA v. POLAND

KALUZA v. POLAND

LEXI