FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 68880/01 by Henryka SCHIRMER against Poland

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

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mrs V. Strážnická , 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 on 13 June 2000,

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, Henryka Schirmer, is a Polish national, who was born in 1915 and lives in Warsaw . The respondent Government were represented by Mr K. Drzewicki, of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

In 1996 the applicant filed with the Warsaw District Court ( sÄ…d rejonowy ) an action in which she requested the eviction of a certain Ms J. from a flat owned by her and payment of overdue rent, in the amount of 4,371.17 Polish zlotys (PLN). She submitted that she had given notice of termination of the lease contract with J after her failure to pay the rent in due time.

In January 1999 the applicant, having offered J an alternative flat, added a new eviction claim, which was based on article 56 of the Law on the Lease of Dwellings and Housing Allowances ( Ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych ).  Subsequently, she withdrew the claim related to J’s failure to pay the rent. The applicant submits that her withdrawal was conditional on the success of the new claim.

On 6 August 1999 the court gave judgment. It ordered J to pay overdue rent in the amount of PLN 459.15 and dismissed the claim for eviction. The court admitted that the applicant had offered J an alternative flat before claiming her eviction. It pointed out, however, that the Law on the Lease of Dwellings provided that a flat offered to a tenant as alternative lodging should be owned by the person seeking eviction, whereas the flat offered to J was owned by a housing co-operative and the applicant had only limited rights to it. The court pointed out that:

“The plaintiff has a co-operative ownership-like right to that flat, which, although relatively broad, is yet limited by a number of provisions of the Co-operative Law and cannot be identified with the ownership.”

The court further found that, since, pursuant to the Law on the Lease of Dwellings, the eviction of a tenant, if preceded by the offer to the tenant of an alternative flat, was an exception to a general rule that the owner may not evict a tenant who complies with his/her duties set out by the law, the provisions covering such exceptions should not be given extensive interpretation.

In the same judgment the District Court discontinued the proceedings in so far as they related to the withdrawn claim.

The applicant appealed submitting that the Law on the Lease of Dwellings should not be interpreted in the way proposed by the District Court. She argued that the main function of the provisions concerning the eviction of tenants was to protect the property rights of the owner. On the other hand, those provisions were also aimed at guaranteeing tenants the right to continued accommodation and thus provided for the duty to secure alternative flats for them. The applicant pointed out that the flat offered by her to J did make continued accommodation possible for J, despite the eviction. She further stressed that the housing co-operative had agreed that J would occupy the flat in question until 2004 with a possibility of extension. For those reasons the applicant considered that the dismissal of her eviction claim was an infringement on her property rights.

The applicant also appealed against the part of the judgment concerning the partial discontinuance of the proceedings.

On 20 December 1999 the Warsaw Regional Court ( sąd okręgowy ) dismissed the applicant’s appeal. It pointed out that the underlying purpose of a law could be examined as an aid to its interpretation only if an analysis of its text proved ineffective. Having regard to the clear wording of the provisions at issue, the court found that that was not the case.

On the same date the Regional Court, having taken note of the applicant’s decision to withdraw her appeal concerning the partial discontinuance of the proceedings, discontinued the appeal procedure in this respect.

On 14 March 2000 the Warsaw Regional Court rejected the applicant’s cassation appeals against both the judgment and the decision of 20 December 1999, as they were not provided for by the law in that case.

On 28 February 2001 the Supreme Court dismissed her appeal against the decision of the Regional Court issued on 14 March 2000.

B. Relevant domestic law

1. Termination of the lease

The Law of 2 July 1994 on the Lease of Dwellings and Housing Allowances provides, in so far as relevant:

“Article 32. 1. ... The owner can terminate the lease if the tenant: ...

(2) is in arrears of rent ... for at least two full terms of payment, despite a written notice of the intent to terminate the lease and fixing an additional, one-month time-limit for the payment of overdue and current amounts. ...

Article 56. 1. Under this law, a lease which has originated in an administrative decision on allocation of a flat, or has had another legal basis [that existed] before in a given locality the state management of housing or special lease scheme was introduced, shall be treated as a contractual lease concluded for an undetermined time under the provisions of this law. ...

4. If the owner... intends to dwell in his flat and with that intention has vacated the flat which he has hitherto let ... from the municipality, the tenant shall be obliged to vacate the owner’s flat and to move into the flat [proposed to him], provided that the [condition of] the flat in question complies with the requirements laid down by this law in respect of alternative dwellings.  If such is the case, the owner can terminate the lease under article 32 § 2. ...

7. If the landlord has offered the tenant the alternative dwelling he owns himself or if, at the owner’s request, such an alternative dwelling has been provided by the municipality, paragraph 4 shall apply by analogy.”

These provisions were repealed by the Law of 21 June 2001 on the Protection of the Tenants’ Rights, the Commune Housing Reserve and the Amendment of the Civil Code ( Ustawa o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego ), which entered into force on 10 July 2001. Article 11 of that law provides, in so far as relevant:

“... The owner can terminate the contract, if he intends to dwell in the flat owned by him, ... [and] provides [the tenant] with an alternative flat.”

2. Co-operative ownership-like right to a flat

The Civil Code mentions the ownership-like right to a flat in a housing-co-operative ( spółdzielcze własnościowe prawo do lokalu ) in its chapter on limited property rights. The details are described in the Co-operative Law ( Prawo spółdzielcze ) enacted on 16 September 1982. That law provides:

“Article 213. § 1. In buildings owned by a housing co-operative its members have a right to use flats allocated to them ... (co-operative ownership-like right to a flat) ...

Article 223. § 1. The co-operative ownership-like right to a flat is a transferable right, it is inherited and subject to enforcement proceedings. It is a limited property right.

§ 2. The validity of transfer of the co-operative ownership-like right to a flat depends on admitting the acquirer as a member of the co-operative. ...

Article 226. § 1. The member is obliged to participate in the costs of construction, use and upkeep of the co-operative’s property, ... and other obligations of the co-operative by bringing in a construction contribution ( wkład budowlany ) ... in the amount corresponding to the total costs of the construction due in respect of his flat, and by the payment of fees relating to the use of the flat. ...”

COMPLAINTS

The applicant complained under Article 1 of Protocol No. 1 about the alleged interference with her peaceful enjoyment of possessions. She submitted that although she had offered the lease of an alternative flat to J, the domestic courts had dismissed her claim for eviction. The applicant pointed out that the domestic courts had interpreted the law literally, whereas it could not be the intention of the lawmakers to secure alternative lodging for the tenants without any regard to the interests of the owners.

THE LAW

The applicant complained under Article 1 of Protocol No. 1 about the alleged interference with her peaceful enjoyment of possessions.

The provision on which the applicant relied 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 Government submitted that the applicant had exhausted all available domestic remedies.

They pointed out that the right to property was not absolute and the State had the right to enact laws in order to control the use of property in accordance with the general interest. The Government stated that the relevant provisions of the Law of 2 July 1994 on the Lease of Dwellings and Housing Allowances aimed at the protection of the rights of tenants.

The Government were of the view that the Law of 1994 had imposed certain limitations on the property rights of the applicant, but no excessive interference with the peaceful enjoyment of her possessions had occurred.

They observed that without that law J’s right to the peaceful enjoyment of her possessions would be endangered.

The Government further noted that the Law of 21 June 2001 had replaced the previous one and it was no longer required that the alternative flat offered to the tenant had to be owned by the landlord.

They were of the opinion that in the case at issue a fair balance had been struck between the interests of the applicant and the tenant. In their view, the tenants should not be left without any legal protection in their relations with the landlords. The Government observed that if J was to leave in the flat offered by the applicant, she would risk eviction, in case the housing co-operative did not agree to the prolongation of the lease contract.

The applicant noted that the flat offered by her to J could serve the purposes of the protection of tenants, since it had similar facilities as that occupied by J. The latter would be able to occupy that flat without interference by other parties until the end of 2004 and the applicant considered it unlikely that the co-operative would evict J from that flat. She further emphasised that the co-operative would rather not evict the applicant herself, because cases in which the right to such eviction was provided for were very limited.

The applicant submitted that the property rights of a housing co-operative to a flat were not wider than those of the co-operative member occupying that flat. She pointed out that the co-operative ownership-like right to a flat was to a great extent similar to the ownership. In particular, it was transferable, could be inherited and was subject to enforcement proceedings. She further compared the ownership-like right with the tenancy right in respect of a co-operative flat and pointed out that the latter was not transferable, could not be inherited and was not subject to enforcement.

As regards the Law of 21 June 2001 on the Protection of the Tenants’ Rights, the applicant was of the opinion that the fact that it no longer provided that the alternative flat had to be owned by the landlord, confirmed her contention that offering a flat in a co-operative was sufficient for the purposes of the protection of the tenants’ rights.

Finally, the applicant stated that J kept rejecting her offer to move to the alternative flat in the housing co-operative, which meant that in order to evict J she would have to file another time-consuming civil lawsuit.

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.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Michael O’Boyle Nicolas Bratza Registrar President