FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29679/96 by Jadwiga ROMPA against Poland

The European Court of Human Rights ( Fourth Section ) sitting on 16 December 1999 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 20 June 1995 by Jadwiga Rompa against Poland and registered on 4 January 1996 under file no. 29679/96;

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 1941 and living in Smażyno , Poland. She is represented before the Court by Mr L. Markowski , a retired notary public.

A. Particular circumstances of the case

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

On 25 September 1978 the applicant concluded the contract for a purchase of two plots of land, nos. 18 and 19, from Ms T. At that time Ms T. proved her title to the plots by an administrative decision of 1973 declaring that by virtue of the Agricultural Property Regulation Act she had become their owner („ akt własności ziemi ”). The decision stated that Ms T. had been using the farm, including plots nos. 18 and 19, previously owned by her parents, since 1950, and that she had thereby complied with the legal requirement of an uninterrupted possession of agricultural land for a period set out by law, for acquisition of its ownership by prescription .

Subsequently the applicant was registered in the local land register as the owner of the plot.

In 1981 the Wejherowo District Court gave a decision by which it declared that Mr and Ms D. had acquired ownership of plot no. 18 by prescription in 1959. The applicant lodged an appeal against this decision, which was later dismissed .

On 15 June 1984 the Wejherowo State Notary Office gave a decision by virtue of which plot no. 18 was severed from the land belonging to the applicant , registered in the land register under file no. 20050, and included in the property of Ms and Mr D. registered under file no. 10673.

By a decision of 6 March 1990 the Gdańsk Regional Office declared null and void the administrative title deed of 1973, confirming that Ms T. had become the owner of plot no. 18.

The applicant lodged an appeal against this decision .

On 13 May 1991 the Minister of Agriculture upheld the decision of 6 March 1990. The applicant lodged an appeal with the Supreme Administrative Court.

On 9 December 1991 the State Notary Office granted the applicant’s request to register a warning in the land register that the ownershhip of plot no. 18, which had been registered as the property of Ms and Mr D., had become the subject of litigation .

On 20 January 1992 the Supreme Administrative Court dismissed the applicant’s appeal against the administrative decision of 13 May 1991. Consequently, the decision of 6 March 1990 became final .

On 24 August 1992 the applicant lodged with the Wejherowo District Court a request to have appropriate steps taken ex officio by the court to put right the discrepancies between the entry in the land register and the actual ownership of the plot. She argued that she had validly acquired plot no. 18, having relied on the 1973 title deed of her predecessor, Ms T. The applicant further argued that the inviolability of her ownership acquired in good faith should be protected by law, and requested that plot no. 18 be included again in the register file no. 20050 and that she be registered as its owner .

On 20 February 1993 the applicant, in reply to the court’s enquiry as to the result she wished to obtain by lodging her reqest, submitted that it should not be regarded as a suit for rectification of the land register. The applicant reiterated that she had purchased the plot in 1978 in good faith and that a copy of this contract constituted sufficient evidence that she was the legal successor of Ms T. and that her request was therefore well-founded .

On 2 February 1993 the Wejherowo District Court refused to make the entry requested by the applicant. The applicant lodged an appeal .

On an unspecified later date the Gda ń sk Regional Court set aside the decision under appeal and ordered that the case be reconsidered. The court considered that the lower court had failed to take any position as regards a question crucial for the determination of the case, i.e. the question of conflict between the rights of the applicant originating from the purchase contract of 1978 and those of Ms and Mr D. stemming from the prescription judgment of 1981. In order for this issue to be decided it was necessary to establish whether the decision of the Gdańsk Regional Office of 1990, annulling the 1973 title deed of Ms. T., concerned also plot no. 18.

On 1 April 1994 the Wejherowo District Court, Land Register Division, refused to grant the applicant’s request. The court established that the 1973 decision confirming the title of the previous owner of the land, i.e. plot no. 18, had been declared null and void by the decision of the Gdańsk Regional Office of 6 March 1990. The applicant’s appeal was subsequently dismissed by the Supreme Administrative Court. The court concluded that the question of the validity of the title of the applicant’s predecessor had thus been settled by a final decision. The court further observed that it was not in dispute that Mr and Ms D had acquired ownership of the plot by prescription in 1981.

The court considered that the applicant’s claim to eliminate the discrepancies between the entries in the land register and the actual ownership of the land concerned could be brought before a court only in contentious civil proceedings. It was only in such proceedings that the applicant could rely on the argument that her ownership was protected by the principle, provided for by Article 5 of the Land Register Act, that entries in the land register should be presumed to be accurate. The court further considered that, in proceedings concerning registration of ownership in the land register, it lacked jurisdiction to determine the question who was the true owner of the land.

The applicant appealed. She invoked again the principle, provided for by Article 5 of the Land Register Act that entries in the land register should be presumed to be accurate. She further referred to Article 34 of the Land Register Act and argued that she had submitted sufficient documents to prove that she had validly acquired ownership from Ms T.

On 19 May 1994 the Gdańsk Regional Court dismissed the applicant’s appeal. The court relied on Article 46 of the Land Register Act and pointed out that proceedings under the provisions of this Act were concerned only with obtaining a decision to make new entries in the Register, confirming ownership of land. However, in such proceedings the court lacked jurisdiction to determine any disputes as to who was the true owner. Such questions could be examined in civil contentious proceedings under Article 10 of the Land Register Act. The lower court had correctly established that the documents submitted by the applicant were insufficient to show that she was the legal successor of Ms T. Thus, her appeal had to be dismissed as lacking any legal basis .

Later the applicant submitted an identical request to the Wejherowo Court, which was finally rejected by the Gdańsk Regional Court on 27 April 1995 on the ground that the applicant’s request constituted a res iudicata .

B. Relevant domestic law and practice

Article 155 § 1 of the Civil Code provides that the conclusion of a contract of sale, or other contracts by which the parties agree to have title to property transferred, bring about a transfer of that title.

Article 3 of the Land Register Act establishes 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 ).

Article 10 of the Act reads:

“If there is a discrepancy between the title or right as registered in the register and the actual legal status of the land, a person whose title or right is not registered or is registered is entitled to request a rectification of the relevant entries.

A claim for rectification of entries can be made public by registering a warning in the register. Such an entry shall be made on the basis of either a non-final judicial decision, or a judicial temporary order.”

A claim under Article 10 of the Act should be submitted to the court in ordinary contentious proceedings.

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 sections. The first section shall identify the real property. The second chapter shall name its owner or owners. The third section shall list rights in rem and other rights of third parties encumbering the property, and the fourth section shall contain entries concerning mortgages.

Article 37 of the Act provides that the court shall examine, in non-contentious proceedings, motions to have entries made in the register. The applicable provisions of the Code of Criminal Procedure shall be applied in such proceedings, with the changes provided for by the Land Register Act.

Under Article 38 of the Act, the court shall order that an entry be made in the register exclusively upon the motion of a party, or ex officio if the law expressly provides for it. Such a motion can be submitted by a person who has a legal interest in having her or his rights or obligations registered.

Pursuant to Article 46 of the Act, when examining a motion to have an entry made in the register, the court shall confine itself to examining the contents of the motion, the documents submitted with it and the existing entries in the register.

COMPLAINTS

The applicant complains, without invoking any provisions of the Convention, that the courts failed to take appopriate measures in order to protect her ownership and that her ownership became uncertain as a result of the fact that the administrative decision confirming the ownership of her predecessor in title was annulled. The applicant emphasises that she became the lawful owner of the plot, as shown by the fact that her ownership was registered in the land register.

The applicant argues that the veracity of entries in the land register is guaranteed by law pursuant to which they are presumed to be accurate and to reflect the actual ownership of the property. She took appropriate steps to have her ownership registered, so no negligence can be attributed to her .

The applicant submits that the courts took wrong decisions in her case as a result of which she was deprived of her lawfully acquired property. She argues that she now finds herself in a state of legal uncertainty as regards the status of her land.

THE LAW

The applicant complains, without invoking any provisions of the Convention, that the courts failed to take appopriate measures in order to protect her and that the courts took wrong decisions in her case, as a result of which she was deprived of her lawfully acquired property .

The Court considers that this complaint should be examined under Article 1 of Protocol No. 1 to the Convention, which reads :

“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.”

Even assuming that the application is not incompatible ratione temporis with the Convention, the Court notes that on 24 August 1992 the applicant lodged with the Wejherowo District Court a request to have appropriate steps taken ex officio by that court in order to eliminate the discrepancies between the entry in the land register to the effect that Mr and Ms D. were the owners of plot no. 18 and the actual ownership of the plot. The court refused to do so and on 19 May 1994 the Gdańsk Regional Court ultimately dismissed the applicant’s appeal. The court considered, inter alia , that in proceedings concerning requests to have rights and titles registered in the land register, it lacked jurisdiction to rule on any disputes concerning the true ownership of land. Such questions could be examined only in civil contentious proceedings under Article 10 of the same Land Register Act .

The Court observes that the applicant has not shown that she instituted such proceedings. It follows that the application must be rejected for non-exhaustion of domestic remedies under Article 35 § 4 of the Convention .

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Vincent Berger Matti Pellonpää              Registrar              President