Communicated on 5 December 2017

FIRST SECTION

Application no. 18887/11 El ż bieta GNIAZDOWSKA - SAPIEHA against Poland lodged on 9 March 2011

STATEMENT OF FACTS

1 . The applicant, Ms Elżbieta Gniazdowska-Sapieha , is a Polish national, who was born in 1939 and lives in Warsaw.

She was represented before the Court by Mr M. Moraczewski , a lawyer practising in Toruń .

A. The circumstances of the case

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

3 . The applicant is the legal successor of A.K. who owned various properties, including an apartment building in Toruń . A.K. died in 1937. Other members of the family were killed by the German invading forces in September 1939.

4 . In 1945 the building was requisitioned by the Soviet troops which devastated it. At an unspecified later date in the same year it was taken over by the Toruń municipal authorities.

5 . In 1948 the Toruń Municipal Court ( Sąd Grodzki w Toruniu ) held that the applicant and her sister were entitled to recover de facto possession of that building, relying on the provisions of the 1946 Decree on abandoned and formerly German properties ( dekret o majątkach opuszczonych i poniemieckich ).

6 . The addressees of the decision failed to recover the possession of the building.

7 . In 1956 the applicant and her sister requested the municipality of Toruń to restore the possession of the house to them. By a decision of 22 November 1956 the municipality informed them that a decision was not necessary as the issue had already been decided in the owners ’ favour by way of the final and valid judicial decision given in 1948 (referred to above).

8 . The applicant submits that that decision was never served on the parties concerned. She took no steps in order to take over the management of the building.

9 . In 1976 the applicant ’ s sister died.

10 . In March 1979 the Toruń Town Hall ( Urząd Miejski ) declared that the building should be regarded as abandoned property within the meaning of the 1946 Decree referred to above and that it had therefore been acquired ex lege by the State Treasury. The Toruń Town Hall established that the building had been managed since 1945 by the Municipal Company for Housing and Utilities. The 1948 and 1956 decisions were not mentioned.

11 . The 1979 decision was never served on the applicant. Subsequently the State Treasury was listed as the owner in the relevant land register kept by the local court ( księga wieczysta ).

12 . In 1991 an administrative decision was given by which ownership of the property was transferred from the State Treasury to the Municipality of Toruń ( komunalizacja ). In the years 1991 to 2002 the municipality divided the building into a number of separate apartments and sold some of them to third parties.

13 . In 1999 the applicant obtained a judicial decision to the effect that she was her sister ’ s only heir.

14 . On 19 February 2002 the applicant requested that the 1979 decision conferring ownership of the property on the State Treasury be declared null and void.

15 . On 31 August 2006 the Local Government Appellate Board ( Samorządowe Kolegium Odwoławcze ) allowed her request. It held that the contested decision had been issued in a flagrant breach of the law ( wydana z rażącym naruszeniem prawa ) as the authorities had failed to take into consideration the judicial decision entitling the applicant and her sister to recover possession. The Board stated that in the light of the decision of the municipal court given in 1948 (see paragraph 5 above) , the 1979 decision should be regarded as an unlawful attempt to acquire the ownership of assets administered by the State.

16 . This decision became final.

17 . In July 2007 the applicant officially took over the possession of five apartments in the building which had not been sold to third parties by the municipality. From that moment onwards she paid taxes, managed the property and received rent.

18 . On 21 August 2007 the applicant instituted administrative proceedings under Article 160 of the Code of Administrative Procedure, claiming compensation for damage arising out of the municipality ’ s sale of some of the apartments to third parties.

19 . On 31 January 2008 the Local Government Appellate Board gave a second-instance decision, refusing to award any compensation. It was of the view that the value of expenditure on maintenance purposes made since 1945 first by the State Treasury and later on by the Municipality in respect of the property must have exceeded the amount of compensation claimed by the applicant. The board established that the applicant held a legal title to recover the property and that the authorities had recognised that title and were ready to transfer the building to her, but it was not transferred to the applicant because of her inaction.

20 . On 12 March 2008 the applicant brought a civil action for compensation in the Toruń Regional Court ( Sąd Okręgowy ), claiming the s ame amount of compensation (PLN 4,252,646) in respect of the same damage.

21 . Subsequently the State Treasury, represented by the Attorney General ( Prokuratoria Generalna Skarbu Państwa ) brought proceedings in the Toruń District Court a civil action against the applicant (and also against the municipality and persons living in the building), claiming that the State Treasury had acquired ownership of the property by way of adverse possession on 29 July 1979.

22 . By a decision of 3 July 2008 the court allowed the claim. It noted that the gist of the dispute concerned the nature of the control exercised by the State over the building concerned after 1945. The court established that the heirs of former owners had not undertaken any single action to recover the possession of the property until the beginning of the years 2000, whereas there had been no obstacles for them to recover it. It held that the State had been in de facto possession of the property cum animo rem sibi habendi in bad faith since at least the decision given on 29 July 1948 (see paragraph 5 above). The thirty-year period of adverse possession provided for by the 1946 Rights in Rem Statute ( Przepisy prawa rzeczowego ) had expired on 29 July 1978. The court examined the evolving case-law of the domestic courts. It noted certain discrepancies and also the evolution of relevant case-law in that the courts, including the Supreme Court, ultimately tended to be of the view that in adverse possession cases brought by the State Treasury it was immaterial whether the State ’ s possession had originated in judicial or administrative decisions. It was the existence of de facto possession cum animo res sibi habendi for a period prescribed by the law which was decisive for the State ’ s claim to succeed, not its origin.

23 . The applicant appealed. She argued that the court had erred in accepting that in the circumstances of the case possession of the property by the State Treasury could be counted towards the period of legally significant adverse possession. She reiterated that in the light of the decision given in 1948 conferring the possession on the applicant and her sister, the public authorities could only have been regarded as having managed the property in the exercise of the State ’ s sovereign power ( imperium ), not as having possession “like a property owner” within the meaning of the provisions of the Civil Code on adverse possession. Hence, the period in question could not be counted towards the prescription period.

24 . On 21 October 2009 the Toruń Regional Court dismissed her appeal. It shared the view expressed by the first-instance court.

25 . The applicant lodged a cassation appeal against that decision with the Supreme Court.

26 . On 9 September 2010 the Supreme Court refused to entertain the applicant ’ s cassation appeal ( odmówił przyjęcia skargi kasacyjnej do rozpoznania ).

27 . Shortly afterwards the applicant gave the possession of the building to the municipality.

28 . On 27 January 2011 the Toruń Regional Court dismissed the applicant ’ s compensation claim.

B. Relevant domestic law and practice

1. Decree on abandoned and post-German property

29 . The Decree of 8 March 1946 on abandoned and post ‑ German property ( dekret o majÄ…tkach opuszczonych i poniemieckich ) entered into force on 19 April 1946 and was repealed on 1 August 1985. Section 1 of the Decree read, in so far as relevant:

“1(1). Any property (movable or immovable) of persons who in connection with the war that began on 1 September 1939 lost and did not subsequently recover possession of it shall be considered abandoned property within the meaning of this Decree.”

Section 15 of the Decree stipulated, in so far as relevant:

“1. A person who in connection with the war that began on 1 September 1939 lost possession of property shall have possession of the property restored to her at her request, if there are no obstacles as specified in section 22.

2. Applications for restoration of possession according to the procedure specified in the present decree can be made until 31 December 1948.”

30 . Section 34 of the Decree read as follows:

“ 1. The State Treasury and entities of local government shall acquire by way of prescription (adverse possession) legal title to abandoned properties:

a) aften ten years in respect of immovable property,

b) after five years after immovable property, both periods running from the end of the calendar year during which the war came to end.

2. Claims for restitution of income derived from abandoned properties are subject to prescription; five-year prescription period running from the end of the calendar year during which that income was generated.

3. Ownership of abandoned properties transferred into use and management of institutions and organisations listed in section 12 (2) of the present decree shall be acquired by them if immediately before the expiry of adverse possession periods referred to in para . 1 above, they have been possessing immovable properties for at least eight years and movable properties for five years.”

2 . Provisions concerning acquisition by prescription

31 . Acquisition by prescription is regulated by Article 172 of the Civil Code. At the relevant time it provided that a person could acquire ownership of land after ten years ’ continuous possession, as long as this had been in good faith throughout the entire period. Otherwise, a longer period of twenty years applied.

32 . If those conditions were met, the person in possession could apply to the District Court for a declaratory judgment to the effect that, as of a date on which the period of adverse possession prescribed by law had expired, he or she had acquired ownership of the property.

3 . Case-law of the Supreme Court on adverse possession by the State

33 . Under Polish law, judgments of the Supreme Court are not binding on the courts. However, it may deliver a resolution which aims to interpret the provisions of the law. When such a resolution is delivered by a chamber of seven judges, it is binding if that composition so decides on other compositions of the Supreme Court unless a new resolution is adopted in the applicable procedure.

34 . On 18 November 1992 the Supreme Court delivered a resolution (No. III CZP 133/92) providing that the State Treasury could not count towards the period of adverse possession the period in which a property was held on the strength of an administrative decision later declared null and void because of having been delivered in flagrant breach of the law.

35 . In the resolution of 21 September 1993 adopted by a bench of seven judges Supreme Court (No. III CZP 72/93) held that the period of control of a property, exercised by the State bodies or companies within the scope of powers of State and acting as a subject of public law, could not be counted towards the period of adverse possession despite the existence of a property title declared subsequently as null and void for unlawfulness.

36 . According to another resolution of the Supreme Court of 25 October 1996 (No. III CZP 83/96), the State Treasury could acquire ownership of a property by way of adverse possession based on a judicial decision that was subsequently quashed in an extraordinary appeal procedure.

37 . In the resolution adopted on 26 October 2007 the full bench of the Civil Chamber ((III CZP 30/07), the Supreme Court expressed the following view:

“The control of a real estate by the State Treasury acquired by way of the exercise of public power may amount to self-standing possession leading to the acquisition of property. However, the period of adverse possession did not run if the owner was not able to effectively claim the recovery of the real estate.”

COMPLAINT

38 . The applicant complained under Article 1 of Protocol No. 1 to the Convention that as a result of the judicial decisions given in the adverse possession cases instituted against her by the public authorities she had been deprived of her ownership which she had previously acquired having successfully challenged in administrative proceedings the expropriation decision given during the communist times.

QUESTIONS

1. Is the application compatible ratione temporis with the provisions of the Convention?

2. Is Article 1 of Protocol No. 1 to the Convention applicable to the circumstances of the present case?

3. Has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the meani ng of Article 1 of Protocol No. 1?

4. Has the applicant been deprived of her possessions in compliance with the Convention on account of the judicial decisions given in the proceedings concerning the State Treasury ’ s claim for acquisition of ownership of the property situated in Torun by way of adverse possession?