FOURTH SECTION

PARTIAL 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 12 March 2002 as a Chamber composed of

Sir Nicolas Bratza , President ,

Mr M. Pellonpää

Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall ,

Mr R. Maruste , judges and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 13 June 2000 and registered on 3 May 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Henryka Schirmer, is a Polish national, who was born in 1915 and lives in Warsaw.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , 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.

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

1. The applicant complains under Article 1 of Protocol No. 1 about the alleged interference with her peaceful enjoyment of possessions. She submits that despite having offered the lease of an alternative flat to J, the domestic courts dismissed her claim for eviction. The applicant points out that the domestic courts 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.

2. She further complains that the domestic courts wrongfully discontinued the part of the proceedings which related to her claim for eviction based on the tenant’s failure to pay the rent in due time. The applicant maintains that she stated that she would withdraw that claim on condition that the claim relating to the alternative flat offered to the tenant proved successful.

THE LAW

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

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complains about the allegedly wrongful discontinuance of the proceedings in respect of one of her claims.

The Court observes that the applicant withdrew her appeal against the part of the Warsaw District Court’s judgment concerning the discontinuance of the part of the proceedings. For this reason on 20 December 1999 the Warsaw Regional Court discontinued the respective appellate proceedings. It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning her peaceful enjoyment of possessions;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President