FOURTH SECTION

DECISION

Application no . 49232/08 EURO MARKETING sp. z o.o . against Poland

The European Court of Human Rights (Fourth Section), sitting on 27 November 2012 as a Chamber composed of:

Ineta Ziemele , President, David Thór Björgvinsson , George Nicolaou , Ledi Bianku , Zdravka Kalaydjieva , Paul Mahoney , Krzysztof Wojtyczek , judges, and Lawrence Early , Section Registrar ,

Having regard to the above application lodged on 2 October 2008,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

1. The applicant is a limited liability company with its registered office in Lublin . It wa s represented by Mr R. Choroszyński , a lawyer practising in Lublin . The Polish Government (“the Government”) were represented by their Agent, first Mr J. Wołąsiewicz and, subsequently, Ms J. Chrzanowska , both of the Ministry of Foreign Affairs.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. In 1995 the applicant company acquired the right of perpetual use of a plot of land ( prawo użytkowania wieczystego ) located at 3 Unicka Street in Lublin . It appears that it carried out some business activity on the plot.

4. On 10 August 2006 the applicant company instituted administrative proceedings with a view to obtaining planning permission for the construction of a block of flats on the plot.

5. On 7 December 2006 the Mayor of Lublin granted planning permission. The decision was served on the Warsaw Jewish Religious Community ( Gmina Wyznaniowa Żydowska w Warszawie ; “the Community”) which owned an adjacent plot.

6. On 2 January 2007 the Community appealed against the decision of the Mayor. It argued that on 28 December 1998 it had filed an application with the Property Commission on Jewish Religious Communities ( Komisja Regulacyjna ds . Gmin Wyznaniowych Żydowskich , “the Commission”) to institute so-called regularisation proceedings ( postępowanie regulacyjne ) pursuant to the Law of 20 February 1997 on relations between the State and the Jewish Communities in Poland (“the 1997 Act”). In those proceedings the Community sought, inter alia , an award of compensation for properties located on Unicka Street , including the property which the applicant company had acquired as a “perpetual user”.

7. The Community argued that since the regularisation proceedings in respect of the said plot were pending, the administrative proceedings concerning the grant of planning permission should be suspended pursuant to section 32 § 4 of the 1997 Act.

8. The Lublin Governor and the Lublin Municipality were parties to the regularisation proceedings.

9. The applicant company objected to the Community ’ s appeal, relying on section 30 § 4 of the 1997 Act. This provision stipulated that regularisation proceedings could not affect the rights of third parties.

10. On 22 February 2007 the Lublin Local Government Board of Appeal quashed the Lublin Mayor ’ s decision of 7 December 2006 and remitted the case to him. It observed that in accordance with section 32 § 4 of the 1997 Act a court or administrative proceedings concerning a property which was subject to regularisation proceedings should be suspended. However, a decision on the suspension fell within the competence of the first-instance authority.

11. The applicant company lodged an appeal against that decision with the Lublin Regional Administrative Court . It argued, amongst others, that the Community had not sought restitution of the plot which the applicant company had acquired as a “perpetual user” in 1995. The 1997 Act entered into force on 10 May 1997 and thus could not affect the relations between the Community and the applicant company. Furthermore, the applicant company submitted that its vested rights to the plot had been violated.

12. On 14 June 2007 the Lublin Regional Administrative Court dismissed the appeal. It found that in accordance with the Law on Local Planning an administrative authority could grant planning permission provided that a number of specific conditions were met. One of the conditions was the compliance with other relevant laws and the 1997 Act belonged to that category. The court found that the Community had instituted regularisation proceedings in respect of, among others, the plot subject to the administrative proceedings, and that those regularisation proceedings were still pending. In those circumstances the suspension of the administrative proceedings pursuant to section 32 § 4 of the 1997 Act was justified. It noted that it was necessary to quash the decision of the Mayor of Lublin granting planning permission since that decision should not have been issued given the statutory obligation to suspend the administrative proceedings on account of the pending regularisation proceedings.

13. The applicant company lodged a cassation appeal with the Supreme Administrative Court which was dismissed on 16 April 2008. This court upheld the lower court ’ s judgment. In addition, it observed that the Regional Administrative Court was not competent to review the legality of the Commission ’ s acts, such as its allegedly flawed decision to institute the regularisation proceedings.

14. The case was remitted to the Mayor of Lublin. On 10 September 2008 the Mayor stayed the administrative proceedings concerning the applicant company ’ s request for planning permission on the ground that the regularisation proceedings in respect of the same property had been pending. The applicant company did not appeal this decision. Neither did it request to resume the proceedings.

15. On 18 September 2008 the applicant company lodged a constitutional complaint with the Constitutional Court . It alleged that sections 32 §§ 1, 2 and 4 and 33 § 4-5 of the 1997 Act were unconstitutional. It argued that those provisions had violated its right to property, the right to a fair trial and the right to review of administrative decisions. The applicant company referred to the Supreme Administrative Court ’ s judgment of 16 April 2008 as a final decision in the case.

16. On 30 December 2008 the applicant company concluded a contract with company L. and transferred to it the right of perpetual use of the plot of land at issue and the right of ownership of the buildings constructed on the plot.

17. Company L. instituted administrative proceedings with a view to obtaining planning permission for the construction of a block of flats on the plot.

18. On 20 March 2009 the Property Commission on Jewish Religious Communities informed the parties to the regularisation proceedings that it did not reach a decision in respect of the property located at 3 Unicka Street . Subsequently, the Community filed a compensation claim against the State with the Lublin Regional Court . That claim was dismissed on 10 June 2010.

19. On 26 November 2009 the Mayor of Lublin granted planning permission to company L. Subsequently the right of perpetual use was transferred to company W.N. On 27 April 2012 the Mayor of Lublin granted company W.N. a building permit for the construction of a block of flats.

20. On 28 February 2012 the Constitutional Court discontinued the proceedings instituted by the applicant company. It emphasised that at the time of the lodging of the constitutional complaint the issue of suspension of the proceedings for planning permission had not been finally determined. It found that the Supreme Administrative Court ’ s judgment of 16 April 2008 had not constituted a final ruling with regard to the applicant company ’ s property rights to the plot in question. A possible interference with the claimant ’ s property rights may have occurred as a result of the suspension of the administrative proceedings for planning permission in respect of the property which the claimant used as a “perpetual user” on account of the pending regularisation proceedings. The Constitutional Court found that the applicant company had not exhausted the available domestic remedies as it should have appealed against the decision on the suspension of the administrative proceedings for planning permission. Accordingly, its constitutional complaint was premature.

B. Relevant domestic law

1. The Law of 20 February 1997 on relations between the State and the Jewish Religious Communities in Poland (“the 1997 Act”)

21. The Law of 20 February 1997 on relations between the State and the Jewish Religious Communities in Poland (“the 1997 Act”) entered into force on 10 May 2007.

Section 30 § 1 of the 1997 Act provides that Jewish Religious Communities may request the institution of proceedings (the so-called “regularisation proceedings”) with a view to restitution of their properties which on 1 September 1939 had been owned by them or other Jewish legal persons.

Section 30 § 4 of the 1997 Act expressly provides that the regularisation proceedings may not affect the rights acquired by third parties.

Section 31 stipulates that the regularisation may consist of:

1) transfer of the ownership of property,

2) the grant of suitable alternative property,

3) the award of compensation if neither of the above solutions is possible.

Section 32 § 1 of the 1997 Act provides that regularisation proceedings are conducted by the Property Commission on the Jewish Religious Communities ( Komisja Regulacyjna ) composed in equal numbers of the representatives nominated by the Minister of Internal Affairs and the Jewish Religious Communities. Applications are decided by adjudicatory panels composed of two representatives of the Minister and two representatives of the Communities.

The parties to the regularisation proceedings are the claimant and all interested State, local government and religious entities (Section 32 § 2).

Section 32 § 4 states:

“Court or administrative proceedings with regard to properties referred to in section 30 shall be suspended, ...”.

Section 33 § 3 provides that no appeal lies against decisions of the adjudicatory panels of the Property Commission.

2. The right of perpetual use

22. The right of perpetual use is defined in Articles 232 et seq. of the Civil Code. It is an inheritable and transferable right in rem which, for ninety-nine years, gives a person the full benefit and enjoyment of property rights attaching to land owned by the State Treasury or municipality. It has to be registered in the court land register in the same way as ownership. The transfer of that right, like the transfer of ownership, can be effected only in the form of a notarised deed, on pain of it being declared void ab initio. The “perpetual user” ( użytkownik wieczysty ) is obliged to pay the State Treasury (or the municipality, as the case may be) an annual fee which corresponds to a certain percentage of the value of the land in question.

COMPLAINTS

23. The applicant company claimed that its right of access to a court under Article 6 § 1 of the Convention had not been respected. It had been barred from participating in the proceedings before the Commission in which its property rights had been at stake. The applicant company objected to section 32 § 4 of the 1997 Act which gave precedence to regularisation proceedings over any other proceedings involving the same property. It further alleged that it had suffered a significant hardship on account of the considerable length (more than ten years) of the regularisation proceedings. In addition, the Commission ’ s decisions could not be reviewed.

24. The applicant company alleged a breach of Article 13 of the Convention. It complained that the 1997 Act had not provided for an appeal against decisions given by the Commission.

25. The applicant company, relying on Article 1 of Protocol No. 1 to the Convention, complained that it could not exercise its right of perpetual use and had been prevented from carrying out its planned development of the plot. It claimed that the exercise of its right of perpetual use had depended on the acts of the Commission which had been composed of representatives of the government and of the Jewish Religious Communities. The representatives of the latter decided about their own claims and this regulation was in breach of the nemo iudex in causa propria rule.

THE LAW

A. The parties ’ submissions

26. In their initial observations of 28 February 2011, the Government firstly argued that the application was premature. They referred to the fact that the applicant company had lodged a constitutional complaint and that the proceedings before the Constitutional Court had been pending at the relevant time. The issues raised in its constitutional complaint had been similar to those raised in the application to the Court. Secondly, they argued that the applicant had abused its right of individual application by having failed to inform the Court about the lodging of the constitutional complaint whose content had been fairly similar to the subject-matter of the application lodged with the Court.

27. Subsequently, the Government submitted that the application was incompatible ratione personae since the applicant company could not claim to be a victim of the alleged violations. They maintained that the case had concerned two different sets of proceedings: the administrative proceedings for planning permission and the so-called regularisation proceedings. The State Treasury was the owner of the property in question and the applicant company was its perpetual user who had instituted administrative proceedings with a view to obtaining planning permission. In the meantime, the regularisation proceedings were pending between the State Treasury and the Warsaw Jewish Religious Community. In the latter proceedings the Community claimed exclusively financial compensation from the State and did not seek the restitution of the property of which the applicant company was the perpetual user. Consequently, none of the applicant company ’ s property rights was at stake in the regularisation proceedings.

28. The Government submitted that there had been no obstacles for the applicant company to run its business activities or any other activity in accordance with the law on perpetual use. Throughout the period of the regularisation proceedings the applicant company ran a business activity providing, inter alia , car services. It used without hindrance the property in question as a perpetual user of the plot and the owner of the buildings located on it. In the Government ’ s view, the applicant company had not shown that it had been affected by the acts undertaken by the authorities.

29. The Constitutional Court in its decision of 28 February 2012 found that a possible interference with the applicant company ’ s rights would have only occurred in the event of the suspension of the administrative proceedings for planning permission. The Government noted that the decision of the Mayor of Lublin of 10 September 2008 on the suspension of those administrative proceedings had never been contested by the applicant company. In addition, after the termination of the regularisation proceedings the applicant company did not request that the administrative proceedings be resumed. On that account it had failed to exhaust the available domestic remedies.

30. Furthermore, the applicant company did not inform the Court about important facts concerning the case, namely that it had sold to company L. the right of perpetual use of the plot of land at issue and the right of ownership of the buildings constructed on the plot. Company L. was subsequently granted planning permission for the construction of a block of flats.

31. Lastly, the Government averred that there had been no interference with the applicant company ’ s right to the peaceful enjoyment of its possessions. They noted that the staying of the administrative proceedings for planning permission had produced no adverse consequences for the applicant company

32. The applicant did not submit any comments.

B. The Court ’ s assessment

33. The Court notes that the Government raised a number of objections in respect of the admissibility of the application. Their most important objection concerned the lack of “victim status” of the applicant company. The Court will thus determine whether the applicant company was directly affected by the measures complained of (see, Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008 with further references).

34. It is common ground that in 1995 the applicant company acquired the right of perpetual use of a plot of land located at 3 Unicka Street in Lublin . The State Treasury remained the owner of the plot.

35. The Court first notes that the applicant company was not hindered in the exercise of its right of perpetual use of the property as it is uncontested that it carried out some business activity on the plot of land. In so far as the applicant company alleged that it had been prevented from carrying out its planned development of the plot on account of the regularisation proceedings (construction of a block of flats), the Court observes that it did not appeal against the decision of the Mayor of Lublin of 10 September 2008 suspending those proceedings and thus manifested its lack of interest in its own development project.

36. Secondly, the Court notes that in the regularisation proceedings before the Property Commission the Warsaw Jewish Religious Community did not seek the restitution of the property of which the applicant company was a “perpetual user”. Its request was limited to seeking compensation in respect of that property. Furthermore, section 30 § 4 of the 1997 Act expressly provided that the regularisation proceedings could not affect the rights acquired by third parties. Therefore, the Court agrees with the Government that the applicant company ’ s property rights were not directly at stake in the regularisation proceedings.

37. Thirdly, in so far as the administrative proceedings for planning permission are concerned, the Court notes that the applicant company did not contest the suspension of those proceedings on 10 September 2008. As noted by the Constitutional Court in its decision of 28 February 2012 only the suspension of the administrative proceedings for planning permission on account of the pending regularisation proceedings could have given rise to an issue of interference with the applicant company ’ s property rights. However, the applicant company did not challenge the suspension.

40. It follows that the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Ineta Ziemele Registrar President