FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33752/96 by Bogumiła RUCIŃSKA against Poland

The European Court of Human Rights ( Fourth Section ) sitting on 27 January 2000 as a Chamber composed of

Mr M. Pellonpää, President , Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr V. Butkevych, Mr J. Hedigan, Mrs S. Botoucharova , judges ,

and Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 May 1996 by Bogumiła Rucińska against Poland and registered on 13 November 1996 under file no. 33752/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish citizen, born in 1915 and living in Bielsko-Biała .

A. Particular circumstances of the case

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

In 1944 the applicant purchased from F.Z., by way of a notarial deed, a plot of one hectare divided into twelve small lots of land, located in Z. near Warsaw. F.Z. was the owner of an agricultural estate named Trzusków of 458 hectares, which comprised an estate called Settlement Leśnogóra, of approximately one hundred hectares. The plots bought by the applicant constituted a part of the Leśnogóra estate .

On 19 January 1949 the Warsaw Governor gave an administrative decision declaring that the property of F.Z., covering 458 hectares, was covered by the Decree of the Polish Committee of National Liberation ( Polski Komitet Wyzwolenia Narodowego ) of 6 September 1944 on Agrarian Reform and that, consequently, it was subject to expropriation within the framework of this reform.

On 30 March 1950 the Minister of Agriculture and Agrarian Reform upheld the decision of 1949.

In 1959, in reply to the applicant’s enquiry as to the ownership of the plots which she had purchased in 1944, the Pruszków municipal administration informed her that she had been registered in the local land register as owner of these plots. It was further stated that any claims she might have against de facto possessors of the plots had to be determined by way of civil judicial proceedings .

In 1970 the applicant requested the Ministry of Forestry to regularise the ownership of the plots which she had acquired in 1944 and to award her compensation .

By a letter of 11 March 1972 the Ministry informed her that her claim for compensation lacked legal basis. The land in question had been part of Settlement Leśnogóra, covering an area exceeding one hundred hectares. Their ownership had ex lege been transferred to the State pursuant to the 1944 Decree. This had subsequently been confirmed by the decision of 19 January 1949. As the Decree did not provide for any compensation for expropriations effected for the purposes of agrarian reform, she was not entitled to any compensation. She was further informed that in 1959 the land in question was allocated to the Kampinos National Park.

In 1973 the Częstochowa Finance Office, in reply to a letter by the applicant, informed her that her request for re-opening of tax proceedings and for reimbursement of sums which she had paid as enrichment tax in connection with the purchase of the land in 1944 could not be examined because it was time-barred. It was further stated that under the 1965 Decree on Tax Procedure, tax proceedings could not be re-opened after five years from the date on which tax obligation had arisen. In the applicant’s case the tax obligation had arisen in 1945.

Later on the Częstochowa Regional Office upheld this decision .

In 1990 the applicant requested the State Notarial Office to issue a certificate concerning ownership of the plots in question as registered in the local land register. By a letter of 6 May 1990 she was informed that the relevant land register was missing .

In 1990 the applicant and seventeen other persons requested that the 1949 and 1950 decisions be declared null and void. They submitted that at the time of expropriation the lands constituting the Trzusków farm and the Settlement Leśnogóra had not been of an agricultural character, but had been designated for construction purposes. They relied in particular on the interpretative decision concerning the 1944 Decree on Agrarian Reform given on 19 September 1990 by the Constitutional Tribunal. The Tribunal had ruled therein that lands designated for construction purposes did not fall within the scope of Article 2 item 1 (e) of the said Decree, defining lands which were subject to expropriation within the framework of the agrarian reform. The Tribunal had further held that the plots which had belonged to agricultural estates had lost the character of agricultural property if the following requirements had been satisfied: the property had been divided pursuant to an administative permission for its division and the reclassification of plot for construction purposes had subsequently been confirmed by a development plan, accepted by way of an administrative decision given prior to 1 September 1939.

On 27 June 1994 the Minister of Agriculture refused the claimants ’ request to have the 1949 and 1950 decisions declared null and void. The Minister found that F.Z. had been an owner of the Trzusków agricultural estate of 458 hectares. It was further found that in 1932 F.Z. had obtained an initial administrative permission for division of this estate. In 1937 the Warsaw Governor issued an order by which it decided that Article 52 of the 1937 Construction Act was applicable to F.Z. ‘s estate. In 1938 the Warsaw District Mayor granted a final permission for the division of a part of the estate of 189 hectares, having an agricultural character, called Settlement Trzuskow. The remaining 269 hectares had been designated for construction and leisure purposes. In 1939 this part had been sold to E.Z. Subsequently, between 1943 and 1946 E.Z had sold this land to various persons .

The Minister further found that the permission for division of the remaining part of the estate, 269 hectares designated for leisure and construction purposes, had not been granted before 1 September 1939, since F.Z. had failed to submit documents concerning the proposed development of the land.

The Minister further considered the claimants ’ argument based on interpretation of Article 2 item 1 (e) of the 1944 Decree given by the Constitutional Tribunal in its 1990 ruling, on which they relied. The Minister acknowledged that the Tribunal had found that lands designated for construction use were exempted from the scope of application of the Decree. However, the Minister held that the interpretation of the Decree by the Constitutional Tribunal did not have retrospective effect and therefore could not affect final decisions given on the basis of this provision .

The Minister found that the estate of F.Z. of an area of 458 hectares, consisting of farm Trzusków and Settlement Leśnogóra, had been of an agricultural character and as such had been, pursuant to Article 2 item 1 (e) of the 1944 Decree of the Polish Committee of National Liberation (PKWN) of 6 September 1944 on Agrarian Reform, subject to expropriation under the provisions concerning agrarian reform.

The applicant and other claimants lodged an appeal against this decision. They submitted that on the date of the entry into force of the 1944 Decree the applicant had possessed a valid title to the property concerned, i.e. the notarial deed of 1946 by which F.Z. had validly transferred the ownership to her. She stressed that the area of her property was one hectare, whereas the 1944 Decree provided for nationalisation only of estates exceeding 50 hectares. Therefore her property had been expropriated without legal basis and, consequently, the Minister’s refusal to quash the expropriation decisions given in 1949 and 1950 was unlawful .

On 20 February 1996 the Supreme Administrative Court dismissed the applicant’s appeal. The court considered that under Article 2 par. 2 of the 1944 Decree, physical and legal divisions of agricultural estates ( nieruchomości ziemskie ), effected after 1 September 1939, i.e. after the date of the German invasion in Poland , had been declared null and void by operation of law. This interpretation of this provision was also confirmed by the interpretative decision of the Constitutional Tribunal of 19 September 1990. The Constitutional Tribunal had also considered that the notion of agricultural property within the meaning of the 1944 Decree did not include plots of land designated for construction purposes which had been detached physically or by way of legal acts from agricultural estates before 1 September 1939. The Constitutional Tribunal had further considered that a valid separation of plots from agricultural property necessitated that a permission for division of agricultural property and a subsequent confirmation by the development plan of the land concerned be given by administrative decisions.

The Supreme Administrative Court further found that in 1938 F.Z. had obtained a final permission for a division of a part of his estate of 189 hectares and had later sold it to E.N. As to the remaining part, its development plan had not been confirmed by any administrative decision given before 1 September 1939. Thus, there were no grounds on which to accept that the requirements for the land to lose its agricultural character had been satisfied. Consequently, the land had been subject to the agrarian reform under the provisions of the 1944 Decree and as such was subject to expropriation.

The court further examined the claimants ’ objection that the estate of F.Z. had lost its agricultural character as a result of the 1937 order of the Warsaw Governor and that it had thereby been reclassified as construction land within the meaning of the 1936 Act on Construction. The court pointed out that this objection was due to a misconstruction of the legal meaning of this order. The court observed that in fact the order did not constitute a legal basis for a reclassification of the plots concerned as construction plot by operation of law.

The court pointed out that the said Act had only allowed for reclassification of agricultural land into land for construction purposes and specified conditions for such a reclassification. These conditions, as specified by the Act, were that the development plan had to be approved by the local land management office ( urzÄ…d ziemski ). In the case under examination such approval had not been given. Consequently, the land concerned could not have been regarded as having been reclassified for construction purposes .

Having regard to these considerations, the court upheld the contested decision .

B. Relevant domestic law

1. Agrarian reform in Poland under the provisions of the Decree on Agrarian Reform of 6 September 1944

Article 1 of the Decree provides that “the agrarian reform in Poland is a State and economic imperative and shall be realised ... pursuant to principles set forth by the manifesto of the Polish Committee of National Liberation”.

Article 2 § 1 of the Decree, insofar as relevant, reads:

“The following agricultural estates shall be designated for the purposes of the agrarian reform:

...

e) being a property or a co-property of natural persons or legal entities, if the entire area of the estate exceeds either 100 hectares, or 50 hectares of agricultural land ...

All real estate, referred to in items ... , e) above shall, with no delay and without compensation, be taken over by the State. “

Article 2 § 2 provides that all physical divisions or divisions effected by way of legal acts, made after 1 September 1939, of estates referred to Article 2 item (1) (e), are hereby declared null and void.

2. Administrative proceedings by which a final administrative decision can be declared null and void

Under Polish law no special provisions have been enacted allowing specifically for redressing the wrongs committed in connection with expropriations effected within the framework of the agrarian reform. Therefore no specific legal framework is available, enacted with a purpose to mitigate the effects of certain infringements of property rights resulting from deprivation of property. However, it is open for persons whose property was expropriated, or for their legal successors, to institute, under Article 155 of the Code of Administrative Procedure, administrative proceedings in order to claim that the expropriation decisions should be declared null and void as having been in breach of laws setting out criteria for nationalisation, as applicable at the time of the nationalisation. If it is established that indeed the contested decision was not in conformity with law as applicable at the time of the nationalisation, the administrative authority should declare it null and void. The administrative decisions may ultimately be appealed to the Supreme Administrative Court .

Article 196 § 1 of the Code of Administrative Procedure provides that an appeal can be lodged against a second-instance administrative decision with the Supreme Administrative Court on the ground that the decision is not in conformity with the law. Article 207 § 2 states that the Court shall set the decision aside wholly or in part if it establishes that the decision was issued in breach of substantive law; that the proceedings leading to the decision were flawed with a deficiency which led to the decision being null and void; or that procedural shortcomings had occurred in the proceedings leading to the decision which would justify reopening of the proceedings.

Article 155 of the Code of Administrative Procedure permits the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest if this is not prohibited by specific legal provisions. In particular, a final administrative decision can be annulled if it has been issued by an authority which had no jurisdiction, or without a legal basis, or in contradiction to the applicable law.

3. Provisions relating to the land register

The land registers are run by the Land Register Divisions of the District Courts. Article 24 provides that a separate file shall be opened for each property. Pursuant to Article 25, the files shall be divided into four chapters. The first chapter shall identify the real property. The second chapter shall identify its owner or owners. The third chapter shall list rights in rem and other rights of third parties encumbering the property, and the fourth chapter shall contain entries concerning mortgages.

Article 3 of the Land Register Act enacts a legal presumption that the title registered in the land register corresponds to the actual legal situation of the property.

Under Article 5 of the Act, if there is a discrepancy between the title as registered in the register and the actual legal situation of the property, the person who acquired a title from a person whose title had been registered is regarded as having acquired it validly ( rękojmia wiary publicznej ksiąg wieczystych ).

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 to the Convention that her property rights have been breached in that her efforts to have her property restored to her failed . The applicant considers that her predecessor in title was never deprived of ownership of the property concerned. She submits in particular that the authorities wrongly applied the law as regards the legal qualification of land subject to the agrarian reform under the provisions of the 1994 Decree .

THE LAW

The applicant complains under Article 1 of Protocol No. 1 to the Convention that her property rights have been breached in that her efforts to have her property restored to her failed .

Article 1 of Protocol No. 1 to the Convention 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 Court first observes that Poland ratified Protocol No. 1 to the Convention on 10 October 1994. Insofar as the applicant could be understood as complaining about official decisions regarding her property rights given prior to that date, the Court recalls that, in accordance with universally recognised principles of international law, a State can only be held responsible in respect of events after the ratification of the Convention. It follows that the Court is competent ratione temporis only in respect of events which occurred after that date.

The Court further recalls that, according to the Convention organs’ case-law, a person complaining of an interference with his property must show that such right existed (Eur. Com. HR, no. 7655-7657. Dec. 4.10.1977, D.R. 12, p. 111). Moreover, it is plain from the text of Article 1 of Protocol No. 1 that this provision aims at securing the peaceful enjoyment of existing possessions but it does not recognise any right to become the owner of property (Eur. Comm. HR, no. 11628/85, Dec. 9.5.1986, D.R. 47, p. 270).

The Court further recalls that "possessions" within the meaning of Article 1 of Protocol No. 1 may be either "existing possessions" (the Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 23, § 48) or claims in respect of which the applicant can argue that he has at least a "legitimate expectation" of obtaining effective enjoyment of a property right (the Pine Valley Developments and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 23, § 51; Pressos Compania Naviera S.A. and Others v. Belgium judgment of 20 November 1995, Series A no. 332, p. 21, § 31).

The Court considers that it is obvious that the present case does not concern any "existing possessions" of the applicant. The applicant’s title to the plots derived from a transaction, concluded in 1944. Her property acquired in 1944 was expropriated by operation of law under the 1944 Decree, which was later confirmed by the decision of 1949. Subsequently, the applicant’s appeal against this decision was dismissed in 1950 by the Minister of Agriculture and Agrarian Reform. Consequently, the applicant’s property rights were then ultimately extinguished.

It remains to be examined whether the applicant could have any "legitimate expectation" of realising her claim to restitution of property. It is true that, according to information given to the applicant in 1959, she had been at that time registered in the land register as the owner of the property concerned. Consequently, the State had failed to take steps to ensure that the applicant’s name be struck off the land register. Therefore there had been at that time a discrepancy between the ownership status of the property as certified by the land register and its status as determined by the administrative decisions of 1949 and 1950. It is true that Article 3 of the Land Register Act enacts a legal presumption that the title registered in the land register corresponds to the actual legal situation of the property. However, under Article 5 of the Act, if there is a discrepancy between the title as registered in the register and the actual legal situation of the property, the person who acquired a title from a person whose title had been registered is regarded as having acquired it validly. Therefore, this presumption is not irrebutable and its purpose is primarily to protect persons who acquire property on the strength of entries in the land register. Consequently, the fact that the applicant was registered as owner in the land register in 1959 cannot in itself be regarded as ultimate proof that she indeed was the owner.

Moreover, the applicant does not claim that she ever exercised any effective ownership rights over the property. In particular, in 1959 the area belonging before to Trzusków estate had been taken over by the Kampinos National Park . The Court recalls in this respect that the hope of recognition of a former property right which has not been susceptible of effective exercise for a long period of time is not to be considered as a "possession" (see nos. 18890/91, 19048/91, 19049/91, 19342/92 and 19549/92, Dec. 4.3.96, D.R. 85, p. 5, and the case-law referred to there on p. 18).

The applicant contends that the decisions by which her property was taken over by the State were in breach of the laws setting out the criteria for expropriation within the framework of the agrarian reform as applicable at the material time. However, the Court notes that this argument was carefully examined by the administrative authorities to whom the applicant had submitted her claim to have her property restored to her. Both the administrative authority and, ultimately, the Supreme Administrative Court, having considered the applicant’s submissions, found that in fact the property concerned had never lost its agricultural character as the requirements set out by law had not been complied with. The Supreme Administrative Court found in this respect that no relevant decisions, provided for by the 1936 Act on Construction and confirming the development plan for the part of the estate designated for construction and leisure purposes, had been taken before 1 September 1939. As a result, the land in question fell into the scope of application of the 1944 Decree on Agrarian Reform. The Court considers that the applicant has not shown that the reasoning of the authorities was arbitrary or that any elements which might lead to a different conclusion were disregarded by them.

It follows that the applicant has not shown that she has any relevant "existing possessions" or any legally recognised claims, which could be regarded as "legitimate expectations" of enjoying property rights. Moreover, the Convention does not guarantee a right to restitution of property (cf., mutatis mutandis , no. 23131/93, Dec. 4.3.1996, D.R. 85 ‑ A, p. 65, and no. 25497/94, Dec. 17.5.1995, D.R. 85-A, p. 126). There is nothing to suggest that the applicant’s right to peaceful enjoyment of her possessions has in any way been violated by the refusal of her claims for restitution.

The application is therefore incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 35 § 4 of the Convention .

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää              Registrar              President