Communicated on 9 November 2015

FOURTH SECTION

Application no. 12792/13 Aurelia WYSOWSKA against Poland lodged on 13 February 2013

STATEMENT OF FACTS

The applicant, Ms Aurelia Wysowska , is a Polish national, who was born in 1939 and lives in Kraków .

A. The circumstances of the case

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

The applicant ’ s natural father W.B died in Lwów (now Lviv in Ukraine) on 28 September 1944. Following his death, the applicant ’ s mother W.S. married a certain M.J whose name was indicated as the father ’ s name on the applicant ’ s birth certificate.

On 9 August 2007 the Kraków District Court amended the applicant ’ s birth certificate, indicating W.B as her father.

1. Inheritance proceedings

On an unknown date in 2008 the applicant instituted inheritance proceedings before the Kraków District Court.

On 23 July 2008 the District Court dismissed her claim. The court established that W.B died intestate on 28 September 1944 in Lwów . He was married to a certain J.L, however they had been separated. Instead, for 10 years W.B had been in a relationship with the applicant ’ s mother. W.B had not had any other children, the applicant being his only child.

The court further considered that the applicant could not inherit her late father ’ s estate since she was born out of wedlock. It found that according to the introductory provisions of the Civil Code, the law applicable to the proceedings was the law in force at the time of W.B ’ s death. Since in September 1944, the law in force in Lwów was the Austrian Civil Code of 1811 ( Algemeines bürgerliches Gesetzbuch ) [“ABGB”] , the applicant, being an illegitimate child could not inherit her f ather’s property. Under Article 754 of ABGB illegitimate children could not inherit ab intestato from their father or their father ’ s family.

The applicant appealed.

On 3 February 2009 the Kraków Regional Court quashed the first-instance decision and remitted the case. The court instructed the first-instance court to enumerate all W.B. heirs.

Since W.B did not have any other children or relatives, the Kraków District Court summoned the State Treasury to participate as a party to the proceedings.

On 8 March 2011 the Kraków District Court declared that the State Treasury acquired W.B. ’ s estate.

The District Court confirmed that W.B had been married to J.L but they had no children together. W.B and the applicant ’ s mother – W.S. had been in a relationship and the applicant was their only child. W.B had no siblings.

The court further maintained that according to the introductory provisions of the Civil Code the law applicable to the proceedings was the law in force at the time of W.B ’ s death. The court stressed that between 1920 and 1944 Lwów was part of Poland. On 27 July 1944 Lwów was taken over by the Red Army. After the Yalta Conference, on 16 August 1945, the Provisional Government of National Unity ( Tymczasowy Rzad Jednosci Narodowej ) signed a border agreement with the government of the Soviet Union. In that treaty, Poland formally ceded its pre-war eastern part to the Soviet Union agreeing to the Polish-Soviet border drawn according to the so-called Curzon Line. Consequently, until 1945 Lwów was part of Poland and the law in force applicable to the inheritance proceedings was the ABGB, that is the law in force in the Galicia province .

Under Article 754 of the ABGB illegitimate children could not inherit intestate from their father ’ s estate. Consequently, the applicant could not have inherited her father ’ s property.

The applicant appealed submitting that while she was aware of the provisions referred to by the District Court, she thought they were unfair, and run counter to the principles of community life ( zasady współżycia społecznego ) and the present day conditions .

On 20 January 2012 the Kraków Regional Court dismissed the applicant ’ s appeal. The court repeated the reasons given by the District Court and held that no matter how unfair the old regulations concerning illegitimate children might seem it was not possible to disregard them.

On 21 November 2012 the Supreme Court refused to entertain the applicant ’ s cassation appeal.

2. Proceedings for compensation for property abandoned in the territories beyond the Bug River

On 29 December 2008 the applicant initiated proceedings under the Law on the realisation of the right to compensation for property left beyond the present borders of the Polish State ( Ustawa o realizacji prawa do rekompensaty z tytułu pozostawienia nieruchomości poza obecnymi granicami państwa polskiego ) (“the July 2005 Act”) in order to obtain compensation for the property left by her father – W.B in Lwów .

On 21 March 2014 the Małopolski Governor ( Wojewoda ) refused to grant her request on the ground that she was not W.B ’ s heir.

On 25 April 2014 the Minister of State Treasury quashed the first-instance decision (on procedural grounds) and remitted the case.

On 14 July 2014 the Małopolski Governor again refused the applicant ’ s request on the ground that she had not inherited her father ’ s estate. This decision was upheld by the Minister of State Treasury on 5 August 2014. Subsequently, on 10 December 2014 the Warsaw Administrative Court dismissed the applicant ’ s further appeal.

B. Relevant domestic law and practice

1. Civil law

Article LI of the Introductory Provisions Act of 1964 ( Ustawa - przepisy wprowadząjace kodeks cywilny ), provides that the law applicable to the inheritance proceedings is the law in force at the time of the decedent ’ s death.

Article 5 of the Polish Civil Code of 1964, reads as follows:

“One may not exercise his or her right in a manner which would contradict its socioeconomic purpose ( społeczno-gospodarcze przeznaczenie prawa ) or the principles of community life ( zasady współżycia społecznego ). Such act or omission on the part of the person entitled shall not be considered as the exercise of that right and shall not be protected by law”

2. Algemeines bürgerliches Gesetzbuch [ ABGB ] of 1811

Under Article 754 of ABGB, as applicable at the material time, illegitimate children could not have inherited intestate from their father ’ s estate.

COMPLAINTS

The applicant complains under Articles 14, 17, 18, Article 1 of Protocol No. 1 and Article 1 of Protocol No. 12 that she was discriminated against on the ground of being born out of wedlock. In particular, she could not have inherited her natural father ’ s estate and obtain compensation for property left by him in Lwów , owing to the application by the Polish courts of Article 754 of the ABGB in its old version.

QUESTION TO THE PARTIES

Has the applicant suffered discrimination in the enjoyment of her Convention rights on the ground of being born out of wedlock, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention (see Marckx v. Belgium , 13 June 1979, Series A no. 31; Mazurek v. France , no. 34406/97 ECHR 2000 ‑ II; Brauer v. Germany , no. 3545/04, 28 May 2009; Fabris v. France [GC], no. 16574/08 , ECHR 2013 (extracts) ?