Communicated on 4 January 2017

FOURTH SECTION

Application no. 3508/12 Tadeusz MORAWSKI and Zuzanna MORAWSKA against Poland lodged on 29 December 2011

STATEMENT OF FACTS

The applicants, Mr Tadeusz Morawski and Ms Zuzanna Morawska , are Polish nationals, who were born in 1952 and live in Wielowie Å› . They are married.

The circumstances of the case

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

1. The lease agreement

On 30 June 1995, following a competitive bid, the applicants signed a 10-year lease agreement with the State Treasury Agricultural Property Agency (“the Agency”). Under the agreement they leased “ Grzybowice Farm” which consisted of a plot of land with a total surface area of 2.33 ha and buildings attached to the land. In the course of the lease agreement the property was divided into two plots: no. 1291/133 with a surface area of 1.6 ha and no. 1486/136 with a surface area of 1.15 ha.

The lease was regulated by the amended provisions of chapter 8 of the Law of 19 October 1991 on the Administration of the State Treasury Agricultural Property ( Ustawa o gospodarowaniu nieruchomościami rolnymi Skarbu Państwa – “the 1991 Act”) which provided for a lease of State agricultural property which was earmarked for privatisation. The lease did not expressly provide that the applicants had the right to buy the property on the expiry of the lease. However, the applicants submitted that in the course of a bid the Agency let them understand that they would be entitled to buy the leased property not later than on the expiry of the lease. The applicants were also required to declare the intended level of investment on the property and of the expected job creation.

The applicants ran their business on the leased property. Having obtained the Agency ’ s agreement, the applicants invested significant amounts of money with a view to developing their business.

In 1998 and 2001 the applicants unsuccessfully requested the Agency to allow them to buy the leased property. In September 2003 the Agency publicly announced its intention to sell the property. The applicants had the statutory right (section 29 § 1(3) of the 1991 Act) to buy the property as the lessees and declared that they would exercise this right. However, the Agency withdrew from signing a sale agreement without providing any reasons for the change of its position.

By an annex signed by the parties in December 2004 the lease was extended for another 10 years. The applicants claim that they were promised that they would be able to buy the property within a short period of time.

2. Decision of the Property Commission

The Catholic Parish of Pawłowice instituted regularisation proceedings before the Property Commission ( Komisja Maj ą tkowa ) acting on the basis of the Law of 17 May 1989 on Relations between the State and the Catholic Church in Poland ( Ustawa o stosunku Pa ń stwa do Ko ś cio ł a Katolickiego w Rzeczypospolitej Polskiej – “the 1989 Act”). The Parish sought restitution of its agricultural property or grant of an alternative property. On 15 January 2008 the Property Commission gave a decision transferring the title to a number of alternative State-owned properties to the Parish since the restitution of its former property had not been feasible. Among the properties transferred to the Parish was part of the property (the plot no. 1291/133) leased to the applicants by the Agency.

On 20 February 2008 the Agency informed the applicants about the Property Commission ’ s decision. On 29 February 2008 the applicants protested to the Agency. On 4 March 2008 they again expressed their wish to buy the leased plot of land.

On 5 March 2008 the plot of land no. 1291/133 was formally transferred to the Parish.

The applicants complained to the Minister of Internal Affairs and Administration. On 18 May 2009 they were advised that they could institute court proceedings with a view to asserting their vested rights as third parties pursuant to section 61 § 4(3) of the 1989 Act.

They also complained to the Minister of Agriculture who supervised the Agency. On 29 June 2009 the Ministry informed the applicants that they could not exercise the right to buy in respect of the leased plot. This right could have been exercised had the Agency decided to sell the leased plot which was not the case.

3. T he appl icants ’ efforts to challenge decision of the Property Commission

On 16 September 2009 the applicants sued the State Treasury and the Catholic Parish of Paw ł owice in the Gliwice Regional Court. They sought an annulment of the Property Commission ’ s decision of 15 January 2008.

The applicants argued that the Property Commission had transferred the title to the properties which included part of the property leased by the applicants. By doing so, the Property Commission breached the applicants ’ vested rights contrary to section 61 § 4(3) of the 1989 Act. The transfer of the title to the property had disregarded their right to buy the leased property based on the 1991 Act. It also discounted the fact that they had incurred outlays in connection with the development of the property.

The applicants further submitted that in accord ance with the 1991 Act (section 38a) the Agency could lease agricult ural land with a guarantee to a lessee that the land would be sold to him not later than at the expiry of the lease. The legislature ’ s intention was to promote the transfer of State agricultural land to individual farmers on conditions favourable to the former. The applicants complied with their obligations under the lease, but the State did not fulfil its promise of selling them the property. It was true that after the Property Commission had issued its decision the lease continued with the Catholic Parish as a lessor; however, the applicants were deprived of their essential statutory right to buy.

The defendants contested the Regional Court ’ s jurisdiction to hear the case. The Catholic Parish argued that the applicants ’ claim should be rejected because the civil court had no jurisdiction to hear it and to review a decision of the Property Commission. The State Treasury supported the position of the Parish.

On 30 March 2010 the Gliwice Regional Court dismissed the defendants ’ objection to its jurisdiction in the case. It had regard to Article 77 § 2 of the Constitution which commanded that a statute could not bar the institution of court proceedings in order to vindicate one ’ s constitutional rights and noted that this principle had to be adhered to in an interpretation of relevant statutes. The availability of court proceedings before a civil court was conditioned on two elements. Firstly, a case had to be a civil one and, secondly, the law did not allocate competence to hear a civil case to a body other than a civil court. The Regional Court held that the claim asserted by the applicants, which was based on the provisions of civil law, should be categorised as a civil case. It further held that a civil court had jurisdiction to hear a dispute arising in the present case. In this regard, it noted that in accordance with section 61 § 4 (3) of the 1989 Act the regularisation proceedings could not have adversely affected the vested rights of, inter alia , individual farmers. The interpretation of this provision in the light of Article 77 § 2 of the Constitution and Article 6 of the Convention indicated that there had to be a procedure in which those rights could be vindicated, and in the absence of any particular regulation on this issue, civil courts had jurisdiction to hear such disputes. The Regional Court stated that its decision concerning the issue of jurisdiction did not in any way prejudge the strength of the applicants ’ claims. Consequently, the Regional Court decided to reject the preliminary objection to its lack of jurisdiction.

Both defendants filed interlocutory appeals. On 30 June 2010 the Katowice Court of Appeal amended the Regional Court ’ s decision and rejected the applicants ’ claim. It found that the applicants had petitioned for annulment of the Property Commission ’ s decision which under section 63 § 4 of the 1989 Act had the force of a judicial writ of enforcement, constituted a basis for an entry into a land register and which was not subject to an appeal (section 63 § 8). The Court of Appeal found that the applicants ’ action was an attempt to challenge the Property Commission ’ s decision contrary to section 63 § 8 of the 1989 Act. As such it was not based on the provisions of civil law and could not have been classified as a civil case. The Court of Appeal noted that the Regional Court had erred in relying on the constitutional provisions and Article 6 of the Convention.

The applicants filed a cassation appeal. They argued, inter alia , that the Court of Appeal ’ s decision breached Article 45 of the Constitution, according to which everyone had the right to have his or her case examined by a court. On 29 June 2011 the Supreme Court refused to entertain their cassation appeal. It concurred with the finding of the Court of Appeal on the lack of a civil nature of the dispute.

The applicants filed a constitutional complaint in which they challenged the constitutionality of sections 62 § 2 and 63 § 3 of the 1989 Act. On 26 September 2011 the Constitutional Court refused to entertain their constitutional complaint. It found that their complaint was directed against the decision of the Property Commission while this decision did not determine their rights as lessees and, in particular, their right to buy. The Constitutional Court, referring to the Supreme Court ’ s judgment of 23 July 2004 (case no. III CK 194/03 ), indicated that the applicants could have instituted relevant civil proceedings in order to seek protection of their right to buy.

The applicants incurred an aggregate amount of PLN 24,160 (EUR 6,000) in court and legal fees connected with the above civil proceedings.

4. Civil proceedings against the State Agricultural Property Agency

On 25 June 2012 the applicants brought an action against the State Agricultural Property Agency in the Opole Regional Court. They sought PLN 850,163 (EUR 212,540) in compensation for the loss of their right to buy part of the leased property and PLN 24,160 (EUR 6,000) for the court and legal fees connected with their first attempt to vindicate their rights. The overall claim amounted to PLN 874,323 (EUR 218,540).

The applicants maintained that in the circumstances of the case their right to buy should be recognised as a maximum formulated expectation ( ekspektatywa maksymalnie ukształtowana ). This was a constitutionally protected property right. Their expectation was justified since, inter alia , the State Treasury had declared its will to dispose of the leased property in the course of the lease. The applicants had the statutory right to buy the leased property. As a result of the decision of the Property Commission, the parish took possession of one of the plots leased by the applicants and thus deprived them of the right to buy it.

The applicants also requested to be exempted from court fees which amounted to PLN 43,700 (EUR 10,925). On 4 September 2012 the Opole Regional Court partly granted their request and exempted them from the fees in the amount exceeding PLN 20,000 (EUR 5,000). It established that the applicants owned two houses and a farm which were mortgaged to the amount of PLN 150,000 (EUR 37,500). Ms Z. Morawska run a business which generated certain profit and, in addition, she drew a pension. The value of her business assets was estimated at PLN 280,000 (EUR 70,000). The applicants also had savings of PLN 16,000 (EUR 4,000). In the light of the applicants ’ financial situation, the Regional Court found that it would not be justified to entirely exempt them from the court fees.

The applicants appealed. They argued that the Regional Court had erred in its assessment that the required fees would not entail a substantial reduction in the applicants ’ standard of living. Their legal and financial situation had deteriorated as a result of decision of the Property Commission. They objected to the argument that all their savings should be spent to initiate court proceedings. Likewise, they could not reduce the means used for their business activity in order to finance the litigation.

The Wrocław Court of Appeal directed the applicants to provide additional documents concerning their financial situation (information about their bank accounts and their tax return for 2011). The applicants complied with the court order.

On 27 December 2012 the Wroc ł aw Court of Appeal dismissed the applicants ’ appeal. It held that the applicants had not succeeded in demonstrating that they belonged to the category of impecunious claimants. It had regard, inter alia , to the profit made in the year 2012 by the business of Ms Z. Morawska (PLN 100,000; EUR 25,000) and the amount of their savings. It noted that the nature of their claim could not constitute a decisive argument in the case. The court found that the applicants were able to pay the required amount in court fees.

The applicants allege that due to this decision they had to desist from pursuing their claims.

COMPLAINTS

1. The applicants allege a violation of Articles 6 § 1 and 13 of the Convention, referring to the Property Commission ’ s decision of 15 January 2008 which adversely affected their rights. They complain that the Property Commission did not meet the requirements of an independent and impartial tribunal required by Article 6 of the Convention and that its decisions could not have been reviewed by a court. In this respect they refer to section 63 § 8 of the 1989 Act.

2. The applicants complain under Articles 6 § 1 and 13 of the Convention that their right of access to a court was violated as a result of the refusal to exempt them fully from the court fees in the proceedings instituted against the Agricultural Property Agency.

3. The applicants further allege a breach of Article 1 of Protocol No. 1 to the Convention. They submit that they had a legitimate expectation of acquiring the leased property based on sections 29 and 38a of the 1991 Act. However, they were deprived of this right following the Property Commission ’ s decision. Their legitimate expectation was protected by the Constitution and Article 1 of Protocol No. 1 to the Convention.

QUESTIONS TO THE PARTIES

Article 1 of Protocol No. 1

1. Did the applicants have a legitimate expectation of acquiring the leased plot? Reference is made to the plot which was transferred to the Catholic Parish.

2. Has there been an interference with the applicants ’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, was that interference necessary to control the use of property in accordance with the general interest?

Article 6 § 1

1. Was Article 6 § 1 of the Convention under its civil head applicable to any of the proceedings in the present case?

2. Has there been a violation of Article 6 § 1 in the present case?

3. Were the proceedings which the applicants attempted to institute with a view to judicially reviewing the Property Commission ’ s decision the only proceedings by which they could have vindicated their claims to the leased property?

4. Has there been a violation of the applicants ’ right of access to a court, guaranteed by Article 6 § 1 of the Convention in respect of the proceedings against the State Agricultural Property Agency? Reference is made to the refusal to exempt them from the court fees in these proceedings and the nature of the claim pursued by the applicants.