FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45214/99 by Egon SILDEDZIS against Poland

The European Court of Human Rights (Fourth Section), sitting on 13 November 2003 as a Chamber composed of

Mr M. Pellonpää , President , Mrs V. Strážnická , Mr M. Fischbach , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego, judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 27 July 1998,

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, Egon Sildedzis, is a Polish national, who was born in 1943 and lives in Białystok.

A. The circumstances of the case

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

On 11 March 1997 the applicant acquired a car (Renault 21-Nevada GTD), at an auction organised by the Białystok Tax Office. The previous owner of the car was unknown. After fixing some defects in the car the applicant applied to the Białystok Municipal Office for registration. On an unspecified date the Director of the Office refused, submitting that the car was unfit for use and could therefore be used only as scrap-metal. After numerous entreaties of the applicant, the Director of the Office orally agreed to register the car on condition that the applicant replaced the engine and part of the chassis of the car. On 17 March 1997 the applicant requested the Białystok Tax Office to reimburse the costs involved in the acquisition of the new engine and chassis. On 15 April 1997 the Białystok Tax Office refused the applicant’s request on unspecified grounds. Subsequently, the applicant ordered the engine and chassis and made an advance payment in the amount of PLN 3000.

On 20 March 1997 the applicant received a decision of the Director of the Białystok Municipal Office refusing his request to register the car. The Director argued that numbers of the engine and chassis in the car had been forged and that that it was impossible to find out who was the owner of the car before its acquisition by the applicant. Therefore, the car could not be considered as “recovered by the owner or by an insurance company” which is a prerequisite for obtaining new identification numbers. On 23 April 1997 the Białystok Governor upheld the contested decision for the same reasons as above.

On 5 May 1997 the Warsaw-Śródmieście District Prosecutor expressed regret for the refusal of the administrative authority to register the applicant’s car and remarked on the lack of consistency in interpreting the relevant regulations. He also suggested that the applicant lodge a request with a district prosecutor’s office to join administrative proceedings on his behalf. On 7 May 1997 the Białystok Municipal Office informed the applicant that according to the relevant regulations a car of unknown origin could not be registered.

On 3 July 1997 the Białystok District Prosecutor refused to institute proceedings against the employees who had issued administrative decisions in the applicant’s case, finding their acts not to be unlawful.

On 27 August 1997 the Ombudsman refused to act on the applicant’s behalf, considering that, according to the car registration rules, the applicant was allowed to engrave new identification numbers and to obtain the registration permit from the administrative authorities only on specified conditions.

On 8 September 1997 the Warszawa-Śródmieście District Prosecutor informed the applicant that the car in question, being “the object of a crime”,  had been handed over to the Białystok Tax Office on the basis of a decision concerning exhibits with a view to selling it at an auction pursuant to the relevant provisions of the Code of Criminal Procedure and §§ 1 and 4 of the Regulation of the Counsel of Ministers of 6 March 19971.

On 2 October 1997 the Supreme Administrative Court quashed the decisions of 20 March 1997 and 23 April 1997. The court found that the administrative authorities had failed to provide any reasons for the refusal of the registration of the car. As regards the issue of the new chassis and engine identification numbers, the court noted that a conclusion as to whether “the stolen car has been recovered” had to be based on the final decision given either in the investigative or in the judicial proceedings.

By a decision of 13 February 1998 the Białystok Municipal Office stayed the proceedings concerning the permit for engraving new car identification numbers until the question whether “the stolen car has been recovered” had been finally settled.

By a letter of 17 March 1998 addressed to the Białystok Municipal Office, the Warsaw-Śródmieście District Prosecutor expressed the opinion that, in view of the fact that the Białystok Tax Office was the legitimate vendor and the applicant, who had purchased the car in good faith, was its legitimate owner, there was no reason for further delay in deciding the issue of registration. In response to this letter, the Białystok Municipal Office informed the Warsaw-Śródmieście District Prosecutor on 31 March 1998 that there no possibility of  registering a vehicle of unknown origin, that is, one lacking factory numbers. Therefore, the required conditions for the registration of the car in question had not been satisfied.

In a letter of 7 May 1998 directed to the applicant the Białystok Appellate Prosecutor expressed  an opinion that there was no reason for the taking of disciplinary action against the Białystok prosecutors. All the same, the Prosecutor acknowledged that the case was “a complex one.” It could not be denied that the applicant was a legitimate owner of the car which he had purchased from a legitimate vendor. In the Prosecutor’s view, the difficulty in registering the car stemmed from the relevant legal provisions specifying the necessary conditions that must be fulfilled for a car to be registered, defined by the Regulation of the Minister of Transport and Marital Economy of 1 February 1994. He further observed that whereas the Białystok Municipal Office had made it clear that “the owner of the car who recovered the stolen car” referred only to its original owner, according to the Supreme Administrative Court the final decision given either in the investigative or in the judicial proceedings, stating that the car had been stolen, should provide a sufficient basis for the registration.

On 29 May 1998 the Białystok District Prosecutor informed the applicant that there were no grounds for instituting criminal proceedings against the employees of the Białystok Municipal Office because it had not been proved that they deliberately neglected their duties or abused their powers [by providing misleading information]. As for the charge of recklessness, this could not be proceeded with, given that the applicant had not suffered serious enough pecuniary damage, which would be an amount exceeding 50 average salaries. On the same date the Białystok District Court rejected the applicant’s claim against the State Treasury for a declaratory judgment to be given. The court considered that the applicant’s property right was not in dispute. Nonetheless, the claim to establish that “the stolen car was recovered” could not be examined in the judicial proceedings as that would constitute an unacceptable way of controlling the lawfulness of an administrative decision.

On 15 June 1998 the Białystok Regional Prosecutor requested the Minister of Transport and Maritime Economy to consider the possibility of granting the applicant a permit for engraving new car identification numbers by way of exception. The Prosecutor argued that in all likelihood the car had been stolen by someone in obscure circumstances to the detriment of an unknown person. Subsequently, in accordance with the relevant rules and practice, the applicant could not be granted the permit to have new car identification numbers engraved, which had adversely affected his property right in a manner which, given the circumstances of the case, could not be accepted.

By a decision of 6 August 1998 the Białystok Regional Court quashed the decision of 29 May 1998 given by the Białystok District Court, considering that since the applicant had not specified his claim, the question whether the judicial proceedings were excluded in the case was still open. By a decision of 14 October 1998 the Białystok District Court rejected the applicant’s claim insofar as he alleged that there was a duty on an administrative authority to register the car, arguing again that this would amount to an unacceptable way of controlling the lawfulness of an administrative decision.

By a letter of 24 November 1998 the Minister of Transport and Maritime Economy refused to grant the applicant permission for engraving new car identification numbers by way of exception.

On 17 December 1998 the Białystok District Court dismissed the applicant’s claim against the State Treasury concerning the declaratory action, finding that the applicant lacked the necessary legal interest. The court pointed out in this respect that a claimant in the civil proceedings may request the determination of a right or a legal relationship but not of a fact.

On 23 January 1999 the Warsaw District Prosecutor decided to discontinue proceedings concerning the theft of the car and the forging of its identification numbers on the grounds that the perpetrator of the offence was unknown. By a decision of 8 March 1999 the Białystok Municipal Office refused the Białystok Regional Prosecutor’s request to resume the stayed proceedings concerning the permit for engraving new car identification numbers, considering that the original factory car numbers and the fact that “the stolen car was recovered” had not been conclusively established. On 18 March 1999 the Białystok Regional Prosecutor lodged an appeal against this decision with the Białystok Self-governing Board, submitting that since a preliminary question concerning the theft of the car had already been determined, the administrative authority was obliged to issue a decision in the case. By a decision of 22 March 1999 the Bialystok Municipal Office allowed the appeal.

On 15 April 1999 the Białystok Municipal Office refused to grant the applicant a permit for engraving new chassis and engine identification numbers, concluding that the car could not be considered “recovered by the owner or by an insurance company” since its factory numbers and the original owner had not been established in the course of the investigation. The applicant and the Białystok Regional Prosecutor lodged an appeal against this decision. The Białystok Prosecutor, referring to the arguments advanced by the Municipal Office, i.e. is the failure to establish the original owner of the car and its factory numbers, expressed the opinion that the Annex No. 7 to the Order of the Minister of Transport and Maritime Economy of 12 October 1995 did not lay down any of these requirements for registration and therefore, the first-instance organ had failed to interpret it correctly. On 3 July 1999 the Białystok Self-governing Board quashed the impugned decision and referred the case back to the first-instance organ for re-examination, observing that the request should be examined in the light of new legal situation (see Regulation of the Minister of Transport and Maritime Economy of 19 June 1999 on registration and identification of vehicles). By a decision of 19 July 1999 the Białystok Municipal Office consented to the engraving of new car identification numbers and, as a consequence, registered the applicant’s car.

B. Relevant domestic law

Pursuant to §§ 1 and 4 of the Regulation of the Counsel of Ministers of 16 March 1971 ( Rozporządzenie Rady Ministrów z dnia 27.031971 w sprawie orzekania o przejściu depozytów na własność Państwa ) courts, prosecutors, administrative authorities, state authorities, state enterprises and banks are entitled to decide on seizure of unclaimed objects by the State. These objects for which prolonged storage creates a risk of destruction or a substantial loss in value or the storage of which is too costly or their keeping out from use is against the public interest shall be sold.

The relevant part of the Regulation of the Minister of Transport and Maritime Economy of 1 February 1993 on technical conditions and examination of vehicles ( Rozporządzenie Ministra Transportu i Gospodarki Morskiej z 1.02.1993 w sprawie warunków technicznych i badań pojazdów ) provided:

Ҥ 10 every vehicle must be equipped with

1) a plate affixed permanently in a easily accessible place, indicating at least:

....

c) the vehicle identification number (VIN), this number should be also engraved on the chassis (bodywork) of a car, ...”

Annex No. 7 to the Order of the Minister of Transport and Maritime Economy of 12 October 1995 - Instruction on allocating and engraving chassis (bodywork) numbers and car engines numbers and on manufacturing substitute plates ( Załącznik nr 7 do zarządzenia Ministra Transportu i Gospodarki Morskiej z 12.10.1995 - Instrukcja w sprawie nadawania i wybijanaia numerów na podwoziach (nadwoziach) i silnikach oraz wykonywania tabliczek zastępczych ) read as follows:

Ҥ 2.1. new [identification] numbers shall be allocated and engraved on permission from the relevant registering authorities only in the following cases:

......

4) in which chassis (bodywork) numbers or engine numbers of a recovered stolen car have been obliterated or forged.”

Regulation of the Minister of Transport and Maritime Economy of 19 June 1999 on registration and identification of vehicles ( Rozporządzenie Ministra Transportu i Gospodarki Morskiej w sprawie rejestracji i oznaczania pojazdów  19.06.1999 ) which entered into force on 1 July 1999 provided that the owner of a car to be registered is not required to submit a certificate of registration (of the car that has been already registered) or the vehicle card (if it has been already issued) in a case when the car has been purchased at a public auction or from a person executing order of forfeiture of the vehicle to the State Treasury.

COMPLAINTS

The applicant complains under Article 1 of the Protocol No.1 to the Convention and Article 6 § 1 of the Convention that the refusals of the administrative authorities to have his car registered until 19 July 1999 amounted to an interference with his right to peaceful enjoyment of his possessions as he could not use a lawfully acquired car for over two years. He submits that as a result of the delay in issuing the registration decision, the value of his car has considerably diminished.

He further complains under Article 13 of the Convention that he did not have an effective remedy in respect of erroneous and unlawful decisions issued by the public officials.

THE LAW

1. The applicant complains that the refusals of the administrative authorities to have his car registered until 19 July 1999 amounted to an interference with his right to peaceful enjoyment of his possessions as he could not use a lawfully acquired car for over two years. The applicant relies on Article 1 of Protocol No. 1, which reads as follows:

“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.”

A. Whether the applicant has exhausted domestic remedies

1. The parties’ submissions

In the Government’s opinion the applicant has not exhausted all the remedies provided by the Polish law with respect to his complaint under Article 1 of Protocol No.1. In particular, they submit that in the circumstances of the present case the applicant had at his disposal the possibility of lodging a constitutional complaint. The Government point out that pursuant to Article 79 § 1 of the Constitution of Poland, everyone whose constitutional rights or freedoms have been infringed shall have the right to request a ruling by the Constitutional Court as to the conformity with the Constitution of a statute or another normative act, on the basis of which a court or organ of public administration has given a final decision impinging upon the complainant’s constitutional rights or freedoms.

In the present case, the applicant complained about the refusal of the administrative authorities to register his car, which allegedly infringed his rights under Article 1 of Protocol No. 1 to the Convention. The decisions refusing the applicant to engrave car identification numbers and register it were based on the applicable provisions of the domestic law, namely the Annex No. 7  to the Order of the Minister of Transport and Maritime Economy of 12 October 1995 with the Constitution. The Government observe that the right to legal protection of property rights is recognised under the Polish Constitution. Therefore, in the Government’s view, the applicant should have filed a constitutional complaint, alleging the incompatibility of the aforementioned Annex with the Polish Constitution.

The applicant submits that has complained to all possible domestic authorities and none of them were able to cope with the problem. He was never informed that he should have availed himself of a constitutional complaint. The applicant argues that it is a task for domestic authorities to review and amend legal provisions as well as to ensure that they shall be interpreted in a consisted manner.

2. The Court’s assessment

The Court is of the opinion that, notwithstanding the fact that a constitutional complaint would in principle constitute an appropriate remedy to be exhausted in a situation such as the applicant’s, in the particular circumstances of the present case the applicant could not make use thereof.

The Court observes that on October 1997 the Supreme Court quashed the administrative decisions of 20 March 1997 and 23 April 1997 which had refused to grant the applicant a permit for engraving new chassis and engine identification numbers and to register the applicant’s car. The proceedings were then stayed from 13 February 1998 till 22 March 1999. On 15 April 1999 the Białystok Municipal Office again refused the applicant’s request. This decision, however, was quashed upon appeal by the Białystok Self-governing Board. Finally, by a decision of 19 July 1999 the Białystok Municipal office consented to engraving new car identification numbers and, as a consequence, registering the applicant’s car.

Having regard to the above, the Court finds that no “final decision impinging upon the complainant’s constitutional rights or freedoms” was ever issued by an administrative organ. This being so, the applicant could not have challenged the constitutionality of the relevant legal regulations for the reason that such an appeal would have been rejected as inadmissible by the Constitutional Court. Accordingly, the applicant cannot be said to have failed to exhaust domestic remedies by not lodging a constitutional complaint.

It follows that the application cannot be rejected for non-exhaustion of domestic remedies.

B. As regards the substantive issue under Article 1 of Protocol No 1 to the Convention.

1.  The parties’ submissions

The Government admit that the refusal to engrave new car identification numbers and to register the applicant’s car, as a result of which he could not use it on public roads until 19 July 1999, amounted to an interference with a right to the peaceful enjoyment of his property. They argue, however, that there were certain options available for the applicant of disposing of his property, such as for example selling or dismantling it.

The Government submit that the decisions of the administrative authorities refusing to engrave new car identification numbers and to register the applicant’s car were based on the applicable provisions of the domestic law. They point out that according to Annex No. 7 to the Order of the Minister of Transport and Maritime Economy of 12 October 1995, the consent for engraving new car identification numbers could be possible only in situations prescribed by law. These conditions were not applicable to the applicant’s case. The Government assert that the applicant did not satisfy the required prerequisites as the origin of his car was uncertain and thus it could not be established whether it had actually been stolen.

The Government submit that under the second paragraph of Article 1 of Protocol No.1 the Contracting States have a right to enact such regulations as they seem necessary to control the use of property in accordance with the condition of “general interest”, which leaves a wide margin of appreciation to the national legislation. In their view, the relevant domestic law concerning car registration pursued the legitimate aim of maintaining order and safety in road traffic.

The Government further claim that this interference did not impose an excessive individual burden on the applicant. Unlike the situation in the case of Immobiliare Saffi ( Immobiliare Saffi v. Italy [GC], no. 22774/93, ECHR 1999-V) the applicant was not left in a prolonged state of uncertainty as to when he would be able to repossess his property, since nobody ever challenged or infringed his right to a possession at issue. The Government submit that at the moment of acquisition of property the applicant knew that according to the expert opinion of 7 February 1998 the car was in a very poor technical condition. Moreover, the applicant knew that the engine and chassis numbers had been forged and thus he could not have been unaware that its legal status was uncertain. Nothing prevented the applicant from getting acquainted with the relevant rules stating that a car of unknown origin could not be registered. The Government claim, invoking the principle ignorantia iuris nocet , that they cannot be held responsible for the applicant’s lack of legal awareness. Finally, the Government point out that in view of the fact that, following introduction of new legislation on 1 July 1999, the applicant’s request for engraving new car numbers and subsequent registration of the car was eventually granted, he can no longer claim to be a victim of the alleged breach of the Convention. Consequently, in their opinion, the complaint should be rejected as being incompatible ratione personae .

The applicant submits that there was an obvious interference with his right to a peaceful enjoyment of his possessions. In his view, the main source of this interference was the Regulation of Minister of Transport and Maritime Economy and the fact that it was interpreted in an arbitrary manner. In response to the government’s argument that he was free to dispose of his property, the applicant contends that the only way of selling the car would have been by concealing the problems with establishing its identity and all the legal difficulties involved.  As to the other alternative, i.e. taking the car into pieces, in the applicant’s opinion, this would have been absurd given that he had only just purchased and assembled a number of new car components. The applicant emphasises the public character of the auction and the fact that the Tax Office and the Public Prosecutor were involved in the transaction. As regards the poor technical condition of a car, which in the applicant’s view is of no real significance to the case, the applicant states that it took him only four weeks to make all the necessary repairs at the cost of PLN 4000 and the car is still in use. The expert opinion of 7 February 1998 in fact encouraged him to buy the car as it only indicated several purely mechanical problems that should be dealt with by a buyer in order to satisfy the conditions for registration. The applicant claims that there was no sign that the possibility of registering of the car in question was legally excluded. Only owing to the applicant’s dispute, potential purchasers started to be notified at subsequent public auctions that the vehicles with forged engine and chassis numbers must not be registered. Had he been given such a warning, he would have never laid himself to a risk of buying a suspect car. The applicant finally submits that the refusal to register his car for over two years had an obviously negative impact on his business and claims that he was unable to make up for the financial loss caused by the unjustified interference with his property.

2. The Court’s assessment

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant complains under Article 6 § 1 of the Convention about the delay in issuing the registration decision, as a result of which the value of his car has considerably diminished. Article 6 § 1 of the Convention provides as relevant:

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

1.  The parties’ submissions

The Government submit that the administrative proceedings concerning a permit for engraving new car identification numbers and the registration of the car, did not involve determination of the applicant’s “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention. The Government observe that under Polish law there is no right to obtain or retain new car identification numbers or to register a car and the registration of a car cannot be considered to confer any civil right. An administrative decision refusing to register a car constitutes a unilateral decision of a state of a public law character. The Government submit that legal status and property position cannot be created or rectified by the administrative authority since determination of rights and relationships falls within the competence of courts. In the present case, the judicial proceedings were excluded for the reason that the applicant lacked the necessary legal interest. The Government, having considered that Article 6 § 1 of the Convention is not applicable to the proceedings, did not comment on the compliance of their length with the "reasonable time" requirement.

The applicant does not address this issue.

2. The Court’s assessment

The Court considers that this part of the application is closely related to the above complaint under Article 1 of Protocol  No. 1 to the Convention and it must therefore also be declared admissible.

3. The applicant finally complains under Article 13 of the Convention that he did not have an effective remedy in respect of erroneous and unlawful decisions issued by the public officials. Article 13 of the Convention provides:

“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 firstly recalls that the word “remedy” within the meaning of Article 13 does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, mutadis mutandis, Bensaid v. the United Kingdom , no. 4599/98 § 56, ECHR 2001-I; see also Said v. The Netherlands (dec.), no. 2345/02, 17.9.2002).

In the present case, the applicant was able to put forward his arguments and challenge the decisions on appeal before relevant domestic authorities, including the Supreme Administrative Court. Moreover, as in 1999 the authorities granted the applicant’s request, he finally achieved the desired result. There is, accordingly, no appearance of breach of Article 13. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint under Article 1 of Protocol No.1 to the Convention concerning [Note1] unjustified interference with his right to peaceful enjoyment of his possessions and the complaint under Article 6 § 1 concerning the delay in issuing the registration decision;

Declares the remainder of the application inadmissible.

Michael O’Boyle Matti Pellonpää Registrar President

[Note1] Summarise the complaints succinctly without necessarily citing the invoked Convention Articles.