FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35014/97 by Maria HUTTEN-CZAPSKA against Poland

The European Court of Human Rights (Fo urth Section) , sitting on 16 November 2000 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr I. Cabral Barreto , Mrs N. Vajić , Mr M. Pellonpää , judges ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 6 December 1994 and registered on 21 February 1997,

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 deliberated, decides as follows:

THE FACTS

The applicant, born in 1931, is a French citizen of Polish origin. She lives in Andresy (France) but frequently visits Poland.

A. The circumstances of the case

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

The applicant owns a house in Gdynia , Poland. It was built in 1935-1939 as a one-family house. The house originally consisted of a duplex apartment, basement and attic; it also had a terraced garden. It previously belonged to the applicant’s parents ( Franciszek and Anna).

1. Events before 10 October 1994

During the Second World War, officers of the German Army lived in the house. In May 1945 the Red Army took it over and placed its officers there for a period of time.

On 19 May 1945 the Head of the Housing Department of the Gdynia Municipality ( Kierownik Wydzialu Mieszkaniowego Magistratu Miasta Gdynia ) issued a decision assigning the first-floor part of the duplex apartment to A.Z.

In June 1945 the Gdynia Town Court ( Sąd Grodzki ) ordered that the house be returned to the applicant’s parents. They began renovation of the house but, shortly afterwards, were ordered to leave their estate. In October 1945 A.Z. moved into the house.

On 13 February 1946 the Decree of 21 December 1945 on the State Management of Housing and Lease Control ( Dekret o publicznej gospodarce lokalami i kontroli najmu ) entered into force. Under its provisions the applicant’s house was taken under the so-called “state management of housing matters” ( publiczna gospodarka lokalami ).

In 1948, at a public auction, the authorities unsuccessfully tried to sell the house to A.Z., who was at that time employed in the Gdynia Municipality, an authority responsible for the state management of housing matters. At about the same time, the applicant’s parents, likewise unsuccessfully, tried to regain their property.

On 1 August 1974 the 1974 Housing Law ( Prawo lokalowe ) entered into force and replaced the state management of housing matters with the so-called “special lease scheme” ( szczególny tryb najmu ) (see also “Relevant domestic law and practice” below).

On an unknown date in 1975 W.P. , who was at that time the Head of the Housing Department of the Gdynia Municipality ( Kierownik Wydziału Spraw Lokalowych Urzędu Miejskiego ), tried to buy the house from the applicant’s brother.

On 8 July 1975 the Gdynia Mayor issued a decision allowing W.P. to exchange the flat he let under the special lease scheme for the ground-floor flat in the applicant’s house. That decision was signed on behalf of the Gdynia Mayor by a civil servant who was subordinate to W.P. On 28 January 1976 the Gdynia Municipality issued a decision confirming that under the provisions governing the special lease scheme the flat had been let by W.P. for an undetermined time.

On 24 October 1975 the Head of the Local Management and Environment Office of the Gdynia Municipality ( Kierownik Wydziału Gospodarki Terenowej i Ochrony Środowiska Urzędu Miejskiego w Gdyni ) issued a decision ordering that the house be taken under the state management ( przejęcie w zarząd państwowy ). That decision took effect on 2 January 1976.

On 3 August 1988 the Gdynia District Court ( Sąd Rejonowy ), ruling on an application made by A.Z.’ relatives, gave judgment declaring that, after the death of A.Z., her daughter (J.P.) and son-in-law ( M.P. ) had inherited the right to lease the first-floor flat in the applicant’s house.

On 18 September 1990 the Gdynia District Court made a decision declaring that the applicant had inherited the property of her parents. On 25 October 1990 the Gdynia District Court entered her title in the relevant land register.

In October 1990 the applicant took over the management of the house from the Gdynia Municipality. In 1991 she began to refurbish the house.

On an unspecified date in 1991, W.P. filed an action for repossession against the applicant. On 28 April 1992 the Gdynia District Court ordered that the applicant surrender to W.P.’s possession the basement, boiler-room, laundry and drying room.

On 8 September 1992 Polish Telecommunication ( Telekomunikacja Polska ), at the applicant’s request, installed a telephone line connected to the basement of the house, where the applicant wanted to organise a language centre. The applicant submits that the tenants destroyed her investment.

On an unknown date in the 1990s’ the applicant set up the Amber Trail Foundation. Since then, she has been making unsuccessful efforts to locate the seat of the Foundation in her house.

2. Events after 10 October 1994

After taking over the management of the house, the applicant initiated several sets of proceedings – civil and administrative – in order to regain her property.

(a) Proceedings before civil courts

( i ) Proceedings concerning the relocation of tenants and compensation

In April 1995 the applicant asked the Gdańsk Regional Court ( Sąd Wojewódzki ) to order that the Gdynia Municipality relocate the tenants living in her house to dwellings owned by the Municipality itself. She further asked the court to award her compensation for depriving her parents and herself of any opportunity to live in their own house, for damage to the property and arbitrary alteration of its use, and for moral suffering; she also claimed damages based on other grounds. On 5 July 1996 the Regional Court ruled that, under the relevant law (that is to say, the Law of 2 July 1994 on the Lease of Dwellings and Housing Allowances ( Ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych ), “the 1994 Act”) the Municipality had no obligation to relocate the tenants to its own dwellings. It dismissed her compensation claims.

In her appeal, the applicant also claimed extra compensation for financial loss sustained as a result of the issue of the – in her view – unlawful administrative decisions of 1945 and 1975 respectively, on the basis of which the tenants had been granted the right to lease flats in her house for an undetermined time.

On 17 January 1997 the Gdańsk Court of Appeal ( Sąd Apelacyjny ) dismissed her appeal. It observed that under no provision of the 1994 Act was the Municipality obliged to relocate the applicant’s tenants or, at her request, to provide them with alternative dwellings. The relevant provisions of that Act (section 56 § 7 read together with paragraph 4 of that section; see also “Relevant domestic law and practice” below) laid down that a tenant had to vacate a dwelling only if the owner had offered him his or her own flat or the municipality had agreed to provide the tenant with an alternative dwelling ( lokal zastępczy ) owned or administered by it. As regards the applicant’s compensation claim for financial loss sustained as a result of the issue of the administrative decisions, the appellate court observed that such claims could be determined by the courts of law only if a prior application for compensation to the administrative authorities had been made and the outcome of the relevant administrative proceedings had not been satisfactory. It referred the applicant to the Code of Administrative Procedure ( Kodeks postępowania administracyjnego ) which set out the rules governing liability of the public authorities in that respect.

In so far as the claims for compensation for damage to the house and alteration of its use were concerned, the appellate court considered that the Gdynia Municipality could not be held liable for the consequences of the laws which had hitherto been in force. In particular, the defendant was not liable for the enactment of the post-war legislation which had introduced restrictive rules concerning the lease of dwellings in privately-owned houses and the state management of housing matters itself. It was not liable for the implementation of the special lease scheme introduced by the 1974 Housing Law and the operation of the recent legislation of 1994 which incorporated certain similar rules in respect of the protection of tenants whose right to lease flats in privately-owned houses had been conferred on them by administrative decisions. Lastly, the court noted that the Gdynia Municipality could not be liable for any damage caused by the applicant’s tenants.

Subsequently, the applicant lodged a cassation appeal ( kasacja ) with the Supreme Court ( Sąd Najwyższy ). On 13 November 1997 the Supreme Court rejected that appeal, finding that she had not complied with the formal requirements for such appeals, notably that she had not specified the errors of substantive civil law allegedly committed by the lower courts.

(ii) Eviction proceedings

The applicant submits (she has not, however, produced the relevant documents) that in 1992 she requested the Gdynia District Court to order the eviction of her tenants. In April 1993, on the defendants’ request, those proceedings were stayed. On an unspecified date in 1995 the applicant apparently again sought to evict her tenants. On 26 April 1996 the Gdynia District Court dismissed her claim.

(iii) Proceedings concerning the determination of rent filed by W.P. against the applicant

On an unspecified date in 1995, W.P. asked the Gdynia District Court for a judgment determining the amount of the rent to be paid by him. On 20 March 1996 the District Court gave judgment and determined the amount of rent at 33,66 Polish zlotys per month (the costs of proceedings awarded against the applicant were 528,90 Polish zlotys ). The usable surface of the flat in question is 70 square metres.

(iv) Other civil proceedings

The applicant submits that, after taking over the management of her property in 1990, she was a party to a number of other civil proceedings, for instance: proceedings concerning the determination of the rent to be paid by her second tenant, proceedings concerning the succession to the right to lease one of the flats, several actions for repossession. However, she has not submitted the relevant documentary evidence in that respect.

(b) Administrative proceedings

( i ) Proceedings concerning the annulment of the decision of 19 May 1945

In October 1995 the applicant requested the Gdańsk Self-Government Board of Appeal ( Samorządowe Kolegium Odwoławcze ) to declare the decision of the Head of the Housing Department of the Gdynia Municipality of 19 May 1945 null and void. Under that decision, the first-floor flat in the house was assigned to A.Z and A.Z.’s successors’ right to lease that flat in the applicant’s house originated in it (see also “Events before 10 October 1994” above).

The Board noted that the impugned decision had been made under the provisions of the Decree of the Polish Committee of National Liberation on the Housing Commissions of 7 September 1944 ( Dekret Polskiego Komitetu Wyzwolenia Narodowego o komisjach mieszkaniowych ), a law which had at the relevant time governed all housing matters. It found that the decision had not been issued by the competent public authority and that, in consequence, had not been lawful. Yet the Board could not declare the decision null and void ( stwierdzić nieważność decyzji ) because, pursuant to Article 156 § 2 of the Code of Administrative Procedure, if more than ten years had elapsed from the date on which the unlawful decision had been made, the Board could only declare that the decision “had been issued contrary to the law” ( została wydana z naruszeniem prawa ).

The applicant appealed to the Supreme Administrative Court ( Naczelny SÄ…d Administracyjny ). On 15 January 1998 the court dismissed her appeal because she had not exhausted an obligatory legal remedy, i.e. she had not made an application to the Board for the matter to be reconsidered ( wniosek o ponowne rozpatrzenie sprawy ).

The applicant subsequently made such an application. On 23 June 1998 the Board upheld its decision of 26 June 1997. The applicant appealed to the Supreme Administrative Court. The Gdańsk Regional Prosecutor ( Prokurator Wojewódzki ) joined the proceedings and lodged an appeal in the applicant’s behalf.

On 8 June 1999 the Supreme Administrative Court rejected both appeals. It confirmed that the impugned decision had been unlawful. It added that it had several procedural shortcomings (for instance, the applicant’s parents had not been notified of the proceedings and had never had any opportunity to challenge the decision; no legal basis had been given for it), but, in accordance with Article 156 § 2 of the Code of Administrative Procedure, the court could not annul the decision but could only declare that it had been issued contrary to the law. In passing, the court observed that the above-mentioned procedural shortcomings could be rectified by means of reopening the proceedings.

(ii) Proceedings concerning the annulment of the decision of 8 July 1975

On an unspecified date in 1992 the applicant requested the Gdańsk Self-Government Board of Appeal to declare the decision of the Gdynia Mayor of 8 July 1975 null and void (see also “Events before 10 October 1994” above). W.P.’s right to lease the ground-floor flat in the applicant’s house originated in that decision.

On 27 January 1994 the Board rejected the applicant’s request. She appealed to the Supreme Administrative Court. On 14 June 1995 the court dismissed her appeal. It found that the flats in the applicant’s house had been let under the special lease scheme introduced by the 1974 Housing Law and that, accordingly, the Mayor had been competent to issue the decision in question. It further observed that, despite some procedural errors committed by the Gdynia Mayor (which could be rectified by means of reopening the proceedings), the decision had had a legal basis and could not, therefore, be declared null and void.

On 17 September 1994 the applicant asked the Gdynia Mayor to reopen the relevant proceedings and to declare the impugned decision null and void. The Mayor rejected her application as being lodged out of time.

On 29 December 1995 the Gdańsk Self-Government Board of Appeal, of its own motion, reopened the proceedings. It found that the contested decision had been made on behalf of the Gdynia Mayor by a civil servant who had been W.P.’s subordinate and that that fact had in itself constituted a sufficient ground for reopening the proceedings, pursuant to Article 145§1 (3) of the Code of Administrative Procedure. That fact had also rendered the decision unlawful. However, since more than five years had elapsed from the date on which the decision had been given, the Board could not annul it. It could merely declare that it had been issued contrary to the law, as laid down in Article 146 § 1 of the Code of Administrative Procedure.

The applicant appealed to the Supreme Administrative Court, alleging that the decision had never been served on the owners of the house and that it should have been declared null and void. On 28 November 1996 the court dismissed her appeal, upholding the reasons relied on by the Board.

(iii) Proceedings concerning the annulment of the decision of 24 October 1975

On 4 October 1994 the applicant requested the Gdynia Municipality to reopen the administrative proceedings terminated by the decision of the Head of the Local Management and Environment Department of the Gdynia Municipality of 24 October 1975. By virtue of that decision, the applicant’s house had been taken under the state management (see also “Events before 10 October 1994” above). She further asked that the decision be declared null and void, submitting that it had lacked any legal basis. In particular, the house had incorrectly been classified as a “tenement-house” ( dom wielorodzinny ), whereas in reality it was, and always had been, a normal one-family house and, as such, should not have been taken under the state management. The decision, the applicant added, had been made solely for the personal benefit and gain of W.P. who had at that time been the Head of the Housing Department of the Gdynia Municipality. In her view, it had been made to sanction the prior – and likewise unlawful – decision of 8 July 1975 whereby W.P. had acquired the right to lease the flat in her house.

On 7 December 1994 the Gdynia Mayor rejected her application, finding that she had lodged it outside the prescribed time-limit. On 12 June 1995 the Gdańsk Self-Government Board of Appeal upheld the Mayor’s decision. Subsequently, the applicant appealed to the Supreme Administrative Court. On 14 November 1996 the court quashed both decisions because the Gdynia Mayor had not been competent to rule on the application.

On 27 February 1997 the Gdańsk Self-Government Board of Appeal reopened the proceedings terminated by the decision of 24 October 1975. On 28 April 1997 the Board declared that that decision had been issued contrary to the law because the owners of the house had not been notified of the proceedings. It found that the Gdynia Municipality had not acted with due diligence as it had not made efforts to establish who had been the rightful successors of the owners of the house (that is to say, the applicant and her brother who had - on a regular basis - paid the relevant taxes on the property to the municipality). Relying on Article 146 § 1 of the Code of Administrative Procedure, the Board refused to annul the decision because more than five years had elapsed from the date on which it had been given. The applicant has not stated whether she appealed against the first-instance decision.

(iv) Proceedings concerning the so-called “registration of residents”

On 28 November 1994 the Gdynia Mayor issued a decision ordering that S.P. , the wife of W.P. , be registered as a permanent resident of the flat let by the latter. The basis for that decision was that, in accordance with the relevant law (governing permanent residence matters), S.P. had a right to dwell as a “permanent resident” in the flat let by her husband and to have that fact entered in the register of residents kept by the Municipality. The applicant, who had not consented to S.P.’s registration as such a resident, appealed against that decision. On 1 February 1995 the Gdańsk Governor ( Wojewoda Gdański ) upheld the decision. The applicant appealed to the Supreme Administrative Court. On 2 April 1996 the court dismissed her appeal, finding that the contested decision had been issued in conformity with the law.

B. Relevant domestic law and practice

1. The so-called “state management of housing matters” and “administrative lease scheme”

The Decree of the Council of Ministers of 21 December 1945 on the State Management of Housing and Lease Control ( Dekret z 21 grudnia 1945 r. o publicznej gospodarce lokalami i kontroli najmu ), which came into force on 13 February 1946, introduced the so-called “state management of housing matters” ( publiczna gospodarka lokalami ) which also applied to dwellings or commercial premises in privately-owned buildings.

Later, on 1 September 1948, the Decree of 28 July 1948 on the Lease of Dwellings ( Dekret o najmie lokali ) entered into force. Under its provisions, the state authorities administered all the housing matters in state and the private sector alike. The public authorities were given power to issue a decision assigning to a tenant a particular flat in a privately owned building. Those provision also laid down rules concerning rent control.

The 1974 Housing Law ( Prawo lokalowe ) introduced the so-called “special lease scheme”, which replaced the “state management of housing matters”, although it did not significantly change the principles on which the right to lease was based. For instance, the right to lease a flat in a building taken under the “state management” did not originate in a civil contract but was conferred on a tenant by an administrative decision. The owner of such a building had no say in respect of who could dwell in his or her house and for how long. The special lease scheme applied to dwellings and commercial premises.

Decisions on “allocating to a dwelling” ( przydział lokalu ) were, for all practical purposes, tantamount to “granting” a right to lease a dwelling (or commercial premises) under the special lease scheme. They were issued by the relevant departments of the municipalities (depending on which of the many reforms of the system of public administration was carried out, those departments were called variously: “housing departments”, “departments of local management and environment”, “dwelling departments”, etc.).

2. The 1994 Act

(a) Abolition of the “special lease scheme” under the 1994 Act

The Act entered into force on 12 November 1994. It was intended to bring about a reform of the law governing the relationship between landlords and tenants. Although it abolished the “special lease scheme” and relaxed the control of rent by, for instance, allowing rents of dwellings to be market-related and determined completely freely in civil contracts between landlords and tenants, it maintained (and still maintains) the control of rent of residential dwellings in which the right to lease a flat had been conferred on a tenant by an administrative decision.

The 1994 Act introduced the so-called “controlled rent” ( czynsz regulowany ) and set out detailed regulations on the calculation of rents of residential dwellings which had hitherto been subject to the “special lease scheme”. The provisions concerning the controlled rent, the ratio legis of which is to protect tenants in a difficult financial situation during the transition from a state-controlled to a free-market housing system, will remain in force until 31 December 2004.

The Act maintains, albeit with slight modifications of wording, the rules concerning the protection of tenants against termination of leases continued on the basis of previous administrative decisions and the right of succession to lease.

(b) Succession to the right to lease a flat

Section 8 § 1 of the Act reads:

“1. In case of death of a tenant and on condition that they have lived in the household of a tenant until his death, his descendants, ascendants, adult siblings, adoptive parents or adopted children and the person who has lived with a tenant in de facto marital cohabitation, shall succeed to the tenancy agreement and acquire the tenant’s rights and obligations connected with [the lease of] the flat, unless they relinquish that right to the landlord. This provision does not apply to persons who, when the [original] tenant died, have had title to another residential dwelling.

2. In cases where there is no successor to the tenancy agreement, or where the successors have relinquished their right, the lease shall expire.”

(c) Rent control

Section 20 sets out the following:

“1. Under the lease agreement the tenant is obliged to pay the rent.

2. In cases provided for by the present statute, the rent shall be determined in a manner specified in this law itself (controlled rent). In other cases the rent shall be determined freely.

3. The rent shall be determined with reference to the physical state of the building in question, its surface and the condition of the flat and other factors which raise or reduce the flat’s value.

4. The parties shall specify the rent in their agreement.”

Section 25 provides:

“1. Subject to the reservation stipulated in section 66, the controlled rent shall be paid by tenants of dwellings belonging to municipalities, the State Treasury, state legal persons or legal persons administering dwellings for non-profit-making purposes, except for housing co-operatives.

2. The maximum controlled rent must not exceed 3% of the reconstruction value of the dwelling ( wartość odtworzeniowa lokalu ) per annum.

3. The reconstruction value of the flat shall be the ratio of its usable surface and conversion index of 1 square metre of the usable surface of the building.

4. The [relevant] Governor shall, by means of an ordinance issued quarterly, determine the conversion index of 1 square metre of the usable surface of the residential building.”

Section 26 § 1 reads:

“Subject to compliance with the rules set out in section 25, the municipality council may pass a resolution determining different rates of the rent per 1 square meter of the usable surface, having regard to factors raising or reducing the value of the dwelling, such factors, in particular, are:

1) location of the building (town centre; outskirts; detached or semi-detached);

2) location of the flat in the building (storey; sun-exposure);

3) technical standard and state of installations;

4) general physical state of the building.”

In practice, the relevant resolutions rarely set out different rates but, instead, determine a “universal” rate of rent per square metre that applies to all residential dwellings subject to rent control. Such resolutions, under section 26a (1) of the Act, shall be valid for 12 months.

Under the transitional provisions of the Act the right to lease a flat conferred on a tenant by an administrative decision shall be treated as a lease originating from a civil contract, concluded under the relevant provisions of the Civil Code. Tenants of such flats are entitled to pay the controlled rent until 31 December 2004.

Under section 55 of the Act the lease of a flat which originates in an administrative decision issued under the 1974 Housing Law shall remain in force.

Section 56 lays down further regulations in respect of such “administrative lease”. It provides, in so far as relevant:

“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.

2. Until 31 December 2004 inclusive, the rent for flats let in the manner specified in paragraph 1 which are located in dwellings owned by natural persons, shall be determined in accordance with the provisions concerning the controlled rent.

...

4. If the owner, referred to in paragraph 2, 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 section 32 § 2.

…

6. If the owner’s adult child or his parents are to dwell in his flat, paragraph 4 … shall apply by analogy.

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.”

(d) Landlord’s obligations in respect of maintenance of the property

Section 9 of the Act sets out a detailed list of the landlord’s obligations arising under the tenancy. It applies both to landlords letting flats for a freely-stipulated, market-related rent and to landlords receiving the controlled rent. It also lists maintenance works to be carried out by landlords under lease agreements. That section provides, in so far as relevant:

“1. The landlord shall ensure that the existing technical facilities in the building are in working order; shall enable the tenant to use lighting and heating in the dwelling; shall ensure that the dwellings are supplied with cold and hot water and shall ensure the use of lifts, collective aerial and other facilities in the building;

...

3. The landlord in particular shall:

1) maintain in working order and keep clean common premises and facilities in the building; the same should apply to the vicinity of the building,

2) carry out repairs in the building and its dwellings and facilities, and restore any building which has been damaged, regardless of the cause of such damage; however, the tenant shall bear the costs of restoring damage for which he is liable;

3) carry out repairs in the dwellings, repair or replace the installations and technical facilities and, especially, carry out such repairs for which the tenant is not responsible, in particular he shall:

a) repair and replace the water supply installation in the building, the gas and hot water supply installations, as well as repair and replace the sewage, central heating (together with radiators), electric, telephone and collective aerial installations – the latter, however, without fittings;

b) replace or repair furnaces, window and door woodwork, floors, floor linings and plaster works.

…”

(e) Termination of the lease in respect of tenants paying controlled rent

In practice, if such a tenant does not fall into more than 2 months arrears of controlled rent, the lease cannot be terminated unless the tenant uses the flat “in a manner inconsistent with its function”, damages the flat or the building, “repeatedly and flagrantly disturbs the peace and upsets order” or has sublet the flat without obtaining the prior consent of the landlord (sections 31-32 of the 1994 Act).

3. Rulings of the Constitutional Court on the constitutionality of certain provisions of the 1994 Act

(a) Judgment of 12 January 2000

On 12 January 2000 the Constitutional Court ( Trybunał Konstytucyjny ), ruling on a legal question referred to it by the Supreme Court, declared that section 56 § 2 taken together with sections 25 and 26 of the 1994 Act were unconstitutional. The Court found that they were in breach of Article 64 § 3 read in conjunction with Articles 2 and 31 § 3 of the Constitution (and in conjunction with Article 1 of Protocol No. 1 to the Convention) as they had put a disproportionately heavy and, from the point of view of the permitted restrictions on the right of property, unnecessary financial burden on the exercise of property rights by natural persons owning flats subject to rent control.

The court ruled that the unconstitutional provisions would be repealed on 11 July 2001. That in practice means that by that date the Parliament ( Sejm ) should replace the repealed provisions with new, constitutional ones.

Before making its ruling, the Constitutional Court asked the President of the Office for Housing and Town Development ( Prezes Urzędu Mieszkalnictwa i Rozwoju Miast ) for information concerning the implementation of the 1994 Act and, more particularly, the manner of determining the “conversion index of 1 square meter of the usable surface of the building” referred to in section 25 of the Act. According to the information received, the controlled rents had never reached the statutory 3% of the reconstruction value of the dwelling (referred to in section 25 § 2) but were determined by the municipalities at 1.3%. As a result, the controlled rents covered merely 60% of the costs of maintenance of residential dwellings. The rest had to be covered by the owners from their financial resources.

In the judgment, the Constitutional Court attached much importance to the fact that the relevant regulations concerning the controlled rent brought about a situation whereby the expenses incurred by owners of dwellings were much higher than the rent paid by tenants and that the former “had no influence on how the controlled rent rates were determined”. In its view, that shortfall of the rent actually received resulted in the progressive reduction of value of tenement houses and this, with the passage of time, entailed consequences similar to expropriation.

The judgment contains extensive reasoning, the gist of which is as follows:

– even though it can be said that certain restrictions put on the exercise of property rights by natural persons who own dwellings subject to the controlled rent are “necessary in the democratic society”, in particular such restrictions as those put on the amount of rent to be received, the situation in which the rents do not cover a significant part of the expenses for maintenance of dwellings means that the relevant provisions deliberately set the controlled rents below the costs and expenses incurred by owners;

– the 1994 Act lays the main burden of sacrifices that society must make for tenants in a difficult financial situation on the owners of property. No proportionality has been maintained in that respect. Nor can any “constitutional” considerations justify laying such a burden on them;

– the cumulative effect of all the relevant regulations concerning the lease of privately-owned flats is that the owners have been stripped of the basic elements of the right of property.

(b) Judgment of 10 October 2000

On 10 October 2000 the Constitutional Court gave judgment holding that section 9 of the 1994 Act, laying down landlords’ obligations, was unconstitutional because, in particular, it placed a heavy financial burden on them, a burden which was in no way proportional to the income from the controlled rent. That provision shall be repealed on 11 July 2001.

4. Relevant constitutional provisions

Article 2 of the Constitution states:

“The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.”

Article 31 § 3 reads:

“Any limitation on the exercise of constitutional freedoms and rights may be imposed only by statute, and only when it is necessary in a democratic state for the protection of its security or public order, or for the protection of the natural environment, health or public morals, or the freedoms or rights of other persons. Such limitations shall not impair the essence of freedoms and rights.”

Article 64 protects the right of property in the following terms:

“1. Everyone shall have the right to ownership, other property rights and the right of succession.

2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession.

3. The right of ownership may be limited only by means of a statute and only to the extent that does not impair the substance of such right.”

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. 1 to the Convention that the situation created by the implementation of the 1994 Act amounts to a continuing flagrant violation of her right to the enjoyment of her possessions. In her submission, the very essence of her right of property has been impaired since, for all practical purposes, she has been deprived of the right to use her property and derive any income from it.

The applicant refers, in particular, to the following points:

– all her obligations towards the tenants were imposed on her, or her ancestors, by unlawful administrative decisions; despite that, under section 56 § 1 of the 1994 Act that “administrative lease” was transformed into a “contractual” one which made her a party to non-existent lease agreements;

– as the owner of the property she has to bear all the expenses involved (taxes, maintenance expenses, etc.) but she cannot exercise her property rights by any means. In particular, she cannot take possession of her house or use it for her own needs;

– in contrast, the tenants allocated to her house on the basis of administrative decisions fully enjoy her property in the sense of possessing it; they hold it, use it and pay her the rent fixed by the public authorities in amounts which do not (and never did) cover the basic expenses for the maintenance of the property;

– under section 8 of the 1994 Act the lease of the flats in her house has become practically perpetual in the sense that in case of death of any of the principal tenants, the right to lease that flat will by virtue of that section automatically pass to persons living with him or her. That makes it impossible for her to regain possession of her house in the reasonable or foreseeable future.

2. Invoking Article 14 of the Convention, the applicant also complains that the relevant domestic regulations and their application tend to discriminate against her as the owner of the private property. She submits that the applicable laws favour the tenants who occupy the flats in her house on the basis of the unlawful administrative decisions.

3. The applicant further submits several other grievances. She does not rely on any specific provision of the Convention. Those complaints may be summarised as follows:

(a) referring to the decision of the Gdynia Mayor of 8 July 1975, the applicant claims that her house was unlawfully taken over by the Gdynia Municipality for the personal gain and benefit of its official;

(b) in respect of the proceedings terminated by the decision of the Supreme Court on 13 November 1997, the applicant objects to their outcome and alleges that the domestic courts committed errors of fact and law in their decisions. She does not invoke any provision of the Convention;

(c) the applicant also generally contests decisions and judgments given in the cases concerning her property rights and the manner in which Polish law was applied by the domestic authorities. She submits that the authorities disregarded her constitutional rights and wrongly interpreted the law, e.g. the 1960 Code of Administrative Procedure, the 1974 Housing Act and the 1994 Act.

THE LAW

1. The applicant complains under Article 1 of Protocol No. 1 to the Convention that the situation created by the implementation of the 1994 Act amounts to a continuing flagrant violation of her right to the enjoyment of her possessions. In her submission, the very essence of her right of property has been impaired since, for all practical purposes, she has been deprived of the right to use her property and derive any income from it.

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

2. Invoking Article 14 of the Convention, the applicant also complains that the relevant domestic regulations and their application tend to discriminate against her as an owner of the private property. She submits that the applicable laws favour the tenants who occupy the flats in her house on the basis of the unlawful administrative decisions.

Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

As the Court has held on many occasions, Article 14 will be violated where, without objective and reasonable justification, persons in “relevantly” similar situations are treated differently. For a claim of violation of this Article to succeed, it has therefore to be established, inter alia , that the situation of the alleged victim can be considered similar to that of persons who have been better treated (see, among many other examples; the Spadea and Scalabrino v. Italy judgment of 28 September 1995, Series A no. 315-B, p. 28, § 45).

Turning to the circumstances of the present case, the Court notes that the applicant seeks to compare her situation to that of her tenants. Given the fundamental differences between a landlord and a tenant, the Court does not consider that any analogy can be drawn between these two situations. It concludes therefore that no issue of discrimination arises in the present case.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to paragraph 4 of that Article.

3. Referring to the decision of the Gdynia Mayor of 8 July 1975, the applicant claims that her house was unlawfully taken over by the Gdynia Municipality for the personal gain and benefit of its official. She does not invoke any provision of the Convention.

The Court considers that this complaint falls to be examined under Article 1 of Protocol No. 1.

However, it further observes that Poland ratified Protocol No. 1 on 10 October 1994. The Protocol only governs, for Each Contracting Party, facts and events subsequent to its entry into force.

In consequence, the Court cannot examine the applicant’s grievances relating to the circumstances surrounding the issue of the impugned decision or to any other events or decisions regarding her property rights which occurred prior to that date because they lie outside its jurisdiction ratione temporis .

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 of the Convention, and must be rejected pursuant to paragraph 4 of that Article.

4. Referring to the proceedings terminated by the decision of the Supreme Court on 13 November 1997, the applicant objects to their outcome and alleges that the domestic courts committed errors of fact and law in their decisions. She does not invoke any provision of the Convention.

However, the Court finds that the applicant, when lodging her cassation appeal against the judgment of the Gdańsk Court of Appeal of 17 January 1997, failed to comply with the formal requirements laid down by Polish law in respect of such appeals. This resulted in her appeal being rejected.

In that respect, the Court recalls that the obligation to exhaust domestic remedies laid down in Article 35 § 1 of the Convention also requires the individual to follow the procedural rules attached to the remedy. Failure to do so, or a mistake in so doing, will vitiate the individual’s compliance with that obligation ( Raif v. Greece, application no. 21782/93, Commission decision of 26 June 1995, Decisions and Reports (DR) 82-A, p. 5).

It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to paragraph 4 of that Article.

5. The applicant also generally contests decisions and judgments given in the cases concerning her property rights and the manner in which Polish law was applied by the domestic authorities. She submits that the authorities disregarded her constitutional rights and wrongly interpreted the law, e.g. the 1960 Code of Administrative Procedure, the 1974 Housing Law and the 1994 Act. She does not rely on any specific provision of the Convention.

The Court observes that these complaints, by their nature itself, fall to be examined under Article 6 § 1 of the Convention, which provides, in so far as relevant:

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

However, even assuming that the applicant has complied with the requirements of Article 35 § 1 of the Convention, the Court finds that these complaints are manifestly ill-founded since they are limited to the objection to the result of the relevant proceedings and the manner in which the Polish authorities applied domestic law in their decisions.

In that context, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, for instance, the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46, and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

It follows that the remainder of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to paragraph 4 of that Article.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints under Article 1 of Protocol No. 1 to the Convention that the situation created by the implementation of the 1994 Act amounts to a continuing flagrant violation of her right to the peaceful enjoyment of her possessions;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress

Registrar President