FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40328/98 by Zdzisław SIEBERT against Poland

The European Court of Human Rights (Fourth Section), sitting on 25 May 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mrs V. Strážnická , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , Mrs E. Fura-Sandström , Ms L. Mijović, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 25 February 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Zdzisław Siebert, is a Polish national who was born in 1928 and lives in Poznań. The respondent Government were represented by Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

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

A. The circumstances of the case

In 1961 the applicant was granted a tenancy, by way of an administrative decision, in respect of an apartment situated in a private house in Grochowska Street in Poznań, subject at that time to the compulsory management of the Poznań municipal administration.

From 1982 to 1987 the applicant worked in Warsaw, apparently living in a hotel. During that period he was registered for a temporary stay in the local register of inhabitants. This temporary registration was only possible on a condition that he had a permanent address elsewhere. On 30 September 1983 the applicant voluntarily terminated the registration of his permanent residence in Poznań. On 10 October 1985 and on 28 October 1988 respectively, the municipal authorities cancelled the permanent registration of K.S. and E.S., the applicant's daughters, in view of the fact that they had emigrated from Poland to Germany.

On 23 November 1987 the applicant's tenancy was revoked by means of an administrative decision on the grounds that the applicant had ceased to satisfy the contractual requirements, as he had moved out of his apartment and was registered as a permanent inhabitant in L. On 21 April 1988 the Housing Department of the Poznań Town Hall, acting as a second-instance administrative authority, upheld this decision. On 26 May 1989 the Supreme Administrative Court dismissed the applicant's appeal against the decision of 21 April 1988.

On 23 May 1988 the Poznań Town Hall refused to register the applicant as having a permanent address in Grochowska Street. On 2 July 1988 this decision was upheld by the higher administrative authority, which considered that it was beyond dispute that the applicant was not entitled to have a permanent residence at the apartment concerned. He had lost his entitlement following the final decision of 21 April 1988, by which the allocation of the apartment to him had ceased to be valid. The applicant had not been living there since 1983, when he had moved out and left it to his daughter. He had also requested that his name be struck off the register of persons having a permanent address there, and had moved into his brother's apartment in L.

In September 1989 the Housing Department of the Poznań Town Hall allocated replacement accommodation to the applicant, consisting of a room 12 square metres in size, with the use of a toilet and water tap in a communal flat. The applicant appealed against this decision, alleging that the rescission of the previous tenancy in Grochowska Street had been unlawful. On 9 November 1989 the second-instance administrative authority at the Poznań Town Hall dismissed the applicant's appeal.

On 17 May 1990 the Minister of Justice refused to lodge an extraordinary appeal against the judgment of 26 May 1989, finding that it was in conformity with the law, particularly as the applicant had moved out of his apartment and registered his permanent address elsewhere, thus clearly relinquishing his entitlement to that apartment.

In March 1990 the applicant was summoned to vacate the apartment, but the eviction was subsequently stayed at the applicant's request, and on the objection of the owner of the replacement accommodation.

On 25 May 1990 the Supreme Administrative Court dismissed the applicant's appeal against the decision of 9 November 1989, considering that the replacement accommodation met legal standards, and that the applicant's appeal essentially sought to challenge the revocation of his entitlement to the previous apartment.

In January 1991 the Poznań Town Hall informed the applicant that he could not be registered with a permanent address at Grochowska Street.

On 12 March 1991 the President of Supreme Administrative Court informed the applicant that he would not consider requesting the Minister of Justice to lodge an extraordinary appeal against the judgment of 25 May 1990, account being taken of the fact that the allocation of replacement accommodation was the natural consequence of the applicant's loss of entitlement to the previous apartment.

On 20 May 1991 the Local Government Board of Appeal of the Poznań Region quashed the decisions of 6 September 1989 and 9 November 1989 by virtue of which the applicant had been allocated replacement accommodation. The Board noted that the house in which this apartment was situated was owned by J.M., who had objected to that accommodation being allocated to the applicant.

On 23 June 1992 the applicant lodged an action with the Poznań District Court for a declaration that the administrative decision of 1961 remained valid. He submitted that he had lost the legal title to the apartment following the unlawful 1988 decision in which the authorities had flagrantly breached the law, in particular by disregarding the fact that he had never permanently left the apartment. As a result of the decision depriving him of the tenancy contract, he could not be registered as an inhabitant, with all the adverse administrative consequences thereof. He referred to difficulties in obtaining his passport, and to the fact that he was regarded by the authorities as a homeless person. He had encountered difficulties in exercising his voting rights as it was only after persistent efforts that he was eventually registered on the electoral lists.

On 6 October 1992 the District Court refused to entertain his claim, apparently considering that it lacked jurisdiction to examine issues pertaining to the validity of administrative decisions.

In reply to the applicant's complaint that he had been deprived of his right to vote in the municipal elections in 1994, the Secretary of the State Elections Committee informed him on 7 July 1994 that the voters' lists had been prepared on the basis of municipal electoral lists. These lists included ex officio persons with permanent addresses in the given municipality. Persons temporarily residing in the municipality, who were not so registered could be included in electoral lists, provided that they submitted a request for registration.

In 1997 the applicant complained to the Poznań Town Hall that, due to the fact that he did not have an officially registered permanent address, he could not obtain a certificate of entitlement to a share in a privatised State property (a NFI share certificate). Only those citizens who had a permanent abode were entitled to receive such certificates.

In a reply dated 9 February 1997, the applicant was informed that under the applicable laws on privatisation he had not been classified as a person eligible to collect a NFI share certificate, in the absence of a permanent registered address. Nevertheless, as a consequence of a judgment of the Constitutional Court, confirmed by the Polish Parliament, the entitlement of persons without a registered permanent address to receive a NFI share certificate had been recognised and such persons would be granted their share certificates in the course of time.

Apparently, the applicant is still living in the apartment in Grochowska Street. As he is regarded as staying in the apartment without any legal basis, he is obliged to pay double rent under applicable housing regulations.

B. Relevant domestic law

From 1945 on, housing matters were subject to a high degree of state control under successive acts of housing legislation. The most important characteristic of this system, a so called “special lease scheme” was that a tenancy was created by means of an administrative decision and not by a civil law contract between the landlord and the tenant. Under these protected tenancies, the tenants paid controlled rent and the owners could not terminate lease by giving notice on the tenant. Although “the special lease scheme” was abolished under the 1994 Act, the system of protected tenancy is still applicable to the tenants who had been allocated their apartments on the basis of previous administrative decisions.

The obligation for Polish citizens residing in Poland to register their permanent address in a municipality's register of inhabitants is stipulated in Article 5 of the National Identity Cards and Registration of Persons Act 1974 ( Ustawa o ewidencji ludności i dowodach osobistych z 10.04.1974 ).

Under Article 6 of the 1974 Act, the notion of “living permanently” implies residing at a given address with the intention of making it the principal centre of one's vital interests.

Article 9 (2) of the 1974 Act provided that: “a person applying to have their permanent or temporary residence registered shall submit a certificate to the effect that they are entitled to stay in the apartment (or other dwelling premises) concerned.” On 27 May 2002 the Polish Constitutional Court declared Article 9 (2) of the 1974 Act unconstitutional and, subsequently, this provision was repealed with effect from 19 June 2002. As a result of the judgment of the Constitutional Court, the certificate to the effect that a person is entitled to stay in an apartment is no longer a prerequisite for having his permanent or temporary residence registered.

Under the Electoral Law of 1993 and of the Electoral Law of 2001 a person who has no fixed residence shall be registered, upon his own motion lodged 10 days before the election at the latest, as a voter in the electoral list in a commune in which he is staying.

Under Article 31 of the National Investment Funds and Privatisation Act of 1993 ( Ustawa o narodowych funduszach inwestycyjnych i ich prywatyzacji ) every citizen of the Republic of Poland aged 18 or over and permanently residing in Poland was entitled to receive a National Investment Fund (NFI) share certificate (to be later converted into company stock). Under the amended version of this provision, which came into force on 31 May 1997, the Minister of Internal Affairs and Administration was responsible for drawing up the lists of persons, not having a permanent residence address in Poland, who were entitled to receive a NFI share certificate.

COMPLAINTS

The applicant complained under Article 6 of the Convention that the administrative proceedings in his case had exceeded a reasonable time.

The applicant complained under Article 8 of the Convention that a lack of permanent address registered in the relevant official register amounted to a breach of his right to respect for private life.

Invoking Article 9 in conjunction with Article 14 of the Convention, the applicant also alleged that the authorities had deprived him of his right to a permanent address because of his German origin and that the decision to strip him of his right to the apartment in Grochowska Street had been a form of punishment for the fact that his daughter had emigrated from Poland and settled in Germany in 1986.

Finally, the applicant complained under Article 13 of the Convention that he did not have any remedy capable of redressing the problems caused by the lack of a formally certified registered address.

THE LAW

The applicant complained under Article 6 § 1 of the Convention that the proceedings concerning registration of his permanent address exceeded a reasonable time. He relied on Article 6 § 1 of the Convention which, insofar as relevant, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court observes that the applicant's complaint relates to different sets of administrative proceedings terminated prior to 1 May 1993, which is the date on which the declaration whereby Poland accepted the right of individual petition took effect. It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 35 § 4.

The applicant complained under Article 8 of the Convention that a lack of permanent address registered in the relevant official register amounted to a breach of his right to respect for private life.

Article 8 of the Convention provides insofar as relevant:

“1. Everyone has the right to respect for his private and family life, ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government submitted that insofar as the applicant's complaint referred to acts, decisions and events that occurred after 30 April 1993, it was manifestly ill-founded.

The Government pointed out that the applicant's complaint concerned only the refusals to register him as a resident of the apartment in Grochowska Street in Poznań. This, in their opinion, did not entail the impossibility of obtaining registration as such. They argued that the applicant had only himself to blame for the fact that he did not have permanent residence registered and, besides, that he had not suffered any negative consequences resulting from thereof. They further submitted that the apartment at issue did not constitute a home within the meaning of Article 8 of the Convention due to the fact that the applicant had lost any legal entitlement to it in 1988. Nor could the applicant be considered as having been subjected to interference with his right to respect for private life. In the Government's opinion, the effective protection of respect for private life does not require the existence in domestic law of any legal protection enabling a person to have the possibility to register for a permanent residence. Furthermore, there was no indication that the administrative authorities had acted arbitrarily or unreasonably or failed to strike a fair balance between the respective interests.

The applicant disputed the Government's submissions, claiming that they had provided inaccurate information as regards his personal situation. He maintained that his life had been seriously disrupted by the refusals to grant him a legal right to reside and to register him as a permanent resident of the apartment situated in Grochowska Street. He also claimed that he had been unjustly deprived of the tenancy and discriminated against by the domestic authorities.

The Court reiterates that, although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities with his or her exercise of the right protected, there may in addition be positive obligations inherent in an effective “respect” for private and family life (see the Stjerna v. Finland judgment of 25 November 1994, Series A no. 299-A, pp. 60-61, § 38).

In the present case, the applicant alleged that the authorities had unjustly refused to register him as a permanent resident of the apartment in a building located in Grochowska Street in Poznań. However, in the Court's opinion, the main thrust of the applicant's complaint seems to be the fact that he had lost the legal entitlement to the apartment in question in 1989 and that his subsequent attempts to regain his tenancy status and to legalise his residence turned out to be unsuccessful.

Insofar as the applicant could be said to be complaining that the administrative decisions terminating his tenancy, which were upheld in 1989 by the Supreme Administrative Court, amounted to an unjustified interference with his right to respect for his home and private life, the Court notes that these decisions were issued prior to 1 May 1993, which is the date on which the declaration whereby Poland recognised the right of individual petition took effect. It follows that this aspect of the applicant's complaint is incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 35 § 4.

Insofar as the applicant's complaint relates to the fact that the administrative authorities refused to restore his legal title to apartment in question and, consequently, to register him as a permanent resident of this specific apartment, the Court recalls that neither Article 8 nor any other provision of the Convention guarantees housing of a particular standard or at all (see, for example, the Chapman v. the United Kingdom judgment of 18 January 2001, § 99) and that the Contracting Parties are free to regulate the registration of their citizens (see Vaclavik v. Slovakia (dec.), no. 41372/98, 30 September 2003).

The Court notes that the apartment in question was situated in a building belonging to a private person but subject to “the special lease scheme” regime, under which the rights of the owners remained restricted. The termination of this form of a tenancy constituted a necessary step towards restoring full ownership rights to the actual owner of the building as guaranteed by Protocol No. 1 to the Convention.

The Court further observes that the administrative authorities granted and withdrew the allocation of the apartment to the applicant and that, in fact, he could never acquire ownership over it. It is noted that that the authorities refused to register the applicant's permanent address in the apartment in Grochowska Street, having established that he had lost the entitlement to the apartment in question. The Court next notes that the applicant voluntarily terminated the registration of his permanent residence in Grochowska Street and that he has not denied that he was able to have his permanent residence registered in other places wherever he was deemed to have met the permanent residence requirements specified by the relevant provisions of the 1974 Act, as applicable at the time.

Even assuming that the applicant's complaint could give rise to problems under Article 8 of the Convention, the Court finds no indication that the domestic authorities acted arbitrarily or otherwise exceeded the margin of appreciation afforded to them in the field of housing regulations.

Furthermore, the Court observes that the applicant has failed to bring forward any convincing evidence which would suggest that the consequences of the refusals to grant him a registered permanent address in the apartment concerned were of such a serious nature as to raise an issue under Article 8 of the Convention. In particular, he has failed to prove that he had encountered any major or insurmountable obstacles in exercising his right to vote or in obtaining a NFI share certificate.

Finally the Court observes that, in the light of information before it, the applicant has not been evicted from the apartment he occupies and it is open to him to lodge a fresh request for permanent registration under the new registration regulations.

In view of the above considerations, the Court finds that in the particular circumstances of the present case there has been no failure to respect the applicant's private and family life under Article 8 of the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

The applicant alleged, invoking Article 9 in conjunction with Article 14 of the Convention,  that the authorities had deprived him of his right to a permanent address and of his right to the apartment in Grochowska Street on account of his German origin and because his daughter had emigrated from Poland and settled in Germany in 1986.

The Court finds that this complaint is unsubstantiated and does not disclose any appearance of a violation of the Articles invoked. It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.

Finally, the applicant complained under Article 13 of the Convention that he did not have any remedy capable of redressing the problems caused by the lack of a formally certified registered address.

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court recalls that according to its case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 52).

The Court has above found that the applicant's complaints under Articles 8, 9 and 14 are manifestly ill-founded. For similar reasons, the applicant did not have an “arguable claim” and Article 13 is therefore inapplicable to his case. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President