FIRST SECTION

DECISION

Application no. 11151/08 Agnieszka ORZECHOWSKA against Poland

The European Court of Human Rights (First Section), sitting on 15 May 2018 as a Committee composed of:

Aleš Pejchal , President, Krzysztof Wojtyczek, Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 26 February 2008,

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

1. The applicant, Ms Agnieszka Orzechowska , is a Polish national, who was born in 1971 and lives in Gliwice. She is represented before the Court by Ms E. Draga-Buchta , a lawyer practising in Katowice.

2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wo łąsiewicz , succeeded by Ms J. Chrzanowska .

A. The circumstances of the case

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

1. Background of the case

4. The applicant was born in 1971 and lives in Gliwice.

5. At the material time, the applicant lived in Mszczonów with her mother and brothers. She suffered from mental health problems and was incapable of managing her own affairs. She did not attend school and was illiterate. She submitted that she was humiliated and persecuted by her mother and brothers. She was regularly forced out of the house and stayed in many different places.

6. On 29 September 2004 the applicant ’ s brothers requested that the Mayor of Mszczonów ( Burmistrz Miasta Mszczonowa ) have the applicant ’ s name deleted from the register of tenants ( podanie o wymeldowanie ). The relevant administrative proceedings were instituted on 1 October 2004.

7. On 9 October 2004 these proceedings were stayed, because the Mayor had been informed by the police that an investigation was being carried out into the charges of alleged mistreatment of the applicant by her mother and brothers.

8. On 10 October 2004 the applicant was again thrown out of the house by her family. She was four months pregnant at that time. She claimed that the pregnancy was a result of rape committed by her brothers. Her sister, K.K., took her to her house in Gliwice.

9 . On 20 October 2004 K.K. applied to have the applicant declared legally incapacitated.

10. On 3 March 2005 the applicant and K.K., in the presence of police officers, tried to enter the house in Mszczonów . This attempt proved unsuccessful because the applicant ’ s mother refused to open the door and let them in.

11. On 4 March 2005 the applicant gave birth to a daughter.

12. On 20 June 2005 K.K. lodged a request with the Gliwice District Court to appoint her as temporary advisor ( doradca tymczasowy ) to the applicant in connection with the investigation into her alleged mistreatment in which the latter had victim status.

13. On 24 June 2005 K.K. was appointed by the court as temporary advisor in order to protect the interests of the applicant ( dla ochrony osoby uczestniczki postępowania ). The court found that the applicant had been dependent and could not deal with the administrative matters ( sprawy urz ę dowe ).

14. On 23 September 2005 the Gliwice Regional Court ruled that the applicant lacked legal capacity.

15. On 18 October 2005 K.K. applied to be appointed the applicant ’ s and her daughter ’ s guardian ( opiekun ) .

16. On 25 January 2006, K.K. was appointed the applicant ’ s and her daughter ’ s guardian.

17. On 12 June 2006 K.K. applied to the Mayor of Mszczonów to have the names of the applicant and her daughter entered in the register of tenants of the applicant ’ s apartment in Mszczonów .

2. Proceedings for the restitution of possession

18. On 3 July 2006 K.K. lodged a claim on behalf of the applicant against her mother and brothers for the restitution of her de facto possession in respect of the house in Mszczonów under Article 478 of the Civil Code of Civil Procedure.

19. On 15 September 2006 the Żyrardów District Court gave judgment and dismissed the claim holding that the applicant ’ s claim had expired. According to the court the applicant lost possession probably in 1990s as she had to move to Ż yrard ó w . Even assuming that she left the house on 10 October 2004, her claim expired pursuant to the one-year time-limit provided for by Article 344 § 2 of the Civil Code (see paragraph 9 ). It was further considered that the time-limit was absolute and its running could not be stayed under Article 122 of the Civil Code, which provided that the limitation period as regards a person deprived of legal capacity could not end earlier than two years after the appointment of a statutory representative in respect of him or her (or from the cessation of the grounds for such an appointment). The court referred to the Supreme Court ’ s resolution of 16 September 1993 (III CZP 125/93) which concerned the running of limitation periods and their relation to the time-limit for lodging claims for recovery of possession. The District Court considered that the same rule should be applied per analogiam to Article 122 of the Civil Code.

20 . On 19 November 2006 the applicant, represented by K.K., appealed against that judgment.

21. On 29 August 2007 the Płock Regional Court dismissed the appeal. It shared the District Court ’ s view in its entirety and added that Article 122 of the Civil Code could not be applied in respect of the time-limit for claims concerning the restitution of possession because of the “purpose and nature of the claim for restitution of possession”.

B. Relevant domestic law and practice

22. Article 344 of the Civil Code reads as follows:

“ § 1. [A] possessor can claim the restoration of his or her previous state and a cessation of infringements by the person who has willfully infringed his or her right to possession as well as against the person for whose benefit the infringement took place ...

§ 2. The claim shall expire if not vindicated withi n one year of the infringement. ”

23. According to Article 121 of the Civil Code:

“A limitations period does not start and, if started, is suspended:

1) for claims by children against parents - for the duration of the parental authority;

2) for claims by persons who do not have full capacity for legal acts against persons exercising guardianship or curatorship - for the time during which the guardianship or curatorship is exercised;

3) for claims made by one spouse against the other - for the duration of the marriage;

4) for any claims if, due to force majeure, the entitled person cannot bring them before a court or other authority set up to hear cases of a given type - for the duration of the obstacle.”

24. According to Article 122 § 1 of the Civil Code:

“ The limitation period for claims against a person who does not have full legal capacity cannot end earlier than two years from the date of the appointment for him or her of a statutory representative or the cessation of the g rounds for such an appointment. ”

25. Article 478 of the Code of the Civil Procedure reads as follows:

“In cases concerning infringement of possession the court shall examine only the latest state of possession and the facts of the infringement; the court shall not examine the right nor the good will of the defendant.“

26. On 16 September 1993 the Supreme Court adopted a resolution (III CZP 125/93) in the matter. It held that Article 121 of the Civil Code, which concerned the running of the limitation periods in the event of, among other things, force majeure , was not applicable to the preclusive time-limit ( termin prekluzyjny ) referred to in Article 344 § 2 of the Civil Code. The court noted, firstly, that Polish law had never provided for the possibility to stay the running of the limitation period as regards the restitution of de facto possession. It further noted that the legal impossibility of staying the running of the limitation period within which a de facto possessor could seek legal protection before the courts by way of a claim for possession originated in the aim of protecting such possession and the limited opportunity for assessment of facts.

COMPLAINTS

27. The applicant complained that she had been deprived of her right of access to court. She further complained that her right to an effective remedy was infringed because her claim was dismissed by the courts.

THE LAW

28. The applicant complained that she had been deprived of her right of access to court as provided in Article 6 of the Convention, which reads as follows:

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

29. The applicant further complained, relying on Article 13 of Convention, that her right to an effective remedy was infringed because her claim was dismissed by the courts.

30. The Government refrained from submitting observations on the admissibility and merits of this complaint under Article 13.

31. The Court considers the applicant ’ s complaints concern an alleged denial of access to a court and should therefore be examined jointly under Article 6 of the Convention.

32. In their observations of 18 April 2011, the Government argued that the applicant had not suffered any significant disadvantage, stressing that her case had not concerned any financial loss on her part.

33. The applicant disagreed. She argued that significant disadvantage within the Convention meaning of the term did not only mean financial impact on the applicant. She had lost de facto possession of her place of residence while four months pregnant and suffering from mental health problems. Thus, the aim of the claim for restitution of possession had not been to make the applicant live with the offenders but to find a place for her to stay. It would have allowed her, after members of her family had been charged with rape and mental and physical abuse and consequently evicted from the house, to start a normal life.

34. Therefore, as the State had done nothing to protect a vulnerable person, she had suffered not only a material loss equivalent to the value of the monthly rent, but also repercussions on her private life.

35. The Court observes, on the basis of the general principle of de minimis non curat praetor , that the non-significant disadvantage criterion hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court (see Korolev v. Russia ( dec. ), no. 25551/05 , ECHR 2010). The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case The severity of a violation should be assessed taking account of both the applicant ’ s subjective perceptions and what is objectively at stake in a particular case ibid.

36. In the light of the criteria established in its case-law, the Court considers that, in ascertaining whether the violation of a right attains the minimum level of severity, the following factors, inter alia , should be taken into account: the nature of the right allegedly violated, the seriousness of the impact of the alleged violation on the exercise of a right and/or the possible effects of the violation on the applicant ’ s personal situation (see Giusti v. Italy , no. 13175/03 , § 34, 1 8 October 2011).

37. In the present case, the Court cannot overlook the fact that the applicant is vulnerable as she is suffering from mental health problems, had been declared legally incapable and, at the material time, had not had any other place to live. Furthermore, the Court notes that although a possession is the act of exercising control over an object , it produces numerous legal effects and also has a certain economic value. Possession has numerous effects such as legal presumptions, and the possibility of using and deriving profit from the object of possession, which is of particular importance in a market economy. Moreover, it creates the possibility of acquisition of ownership by way of adverse possession, and the possibility of demanding compensation for the costs of maintaining and repairing the object of possession borne by a de facto possessor.

38. Under these circumstances, in the Court ’ s view, the applicant cannot be deemed not to have suffered a significant disadvantage by the fact that she was deprived of her possession. It accordingly dismisses the Government ’ s objection.

39. The Court notes that the applicant ’ s claim for legal protection of her de facto possession was dismissed by the courts as they found that the substantive claim had expired. The judgment of the Ż yrardów District Court was based on the e xpress wording of Article 344 § 2 of the Civil Code (see paragraph 20). The applicant ’ s action could not have been granted, because at the time she turned to courts, she already had no arguable claim under the Polish law. It follows that Article 6 of the Convention is not applicable to the present case.

40. In any event, w hat Article 6 § 1 requires is that individuals be granted access to a court whenever they have an arguable claim that there has been an unlawful interference with the exercise of one of their civil rights recognised under domestic law. In this respect, the applicant was given a judgment on the merits (see, among many other authorities, Golder v. United Kingdom , no. 4451/70, §§ 26 - 36, ECHR1975-I; Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 54, ECHR 2000-IV; Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 42, ECHR 2015; Boulois v. Luxembourg [GC], no. 37575/04, §§ 90 - 94, ECHR 2012; and Karin Andersson and Others v. Sweden , no. 29878/09, § 68, 25 September 2014).

41. It follows that the application is inadmissible as incompatible ratione materiae with the provisions of the C onvention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 7 June 2018 .

Renata Degener AleÅ¡ Pejchal              Deputy Registrar President