FOURTH SECTION

Application no. 48286/11 Danuta Bronislawa ŻUK against Poland lodged on 22 July 2011

STATEMENT OF FACTS

The applicant, Ms Danuta Bronisława Żuk , is a Polish national, who was born in 1951 and lives in Szczecin.

A. The circumstances of the case

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

On 20 November 1989 the Szczecin Town Council delivered an administrative decision. It held that the applicant ’ s husband was entitled to purchase a plot of land managed by the National Land Fund ( Pa ń stwowy Fundusz Ziemi ). The Town Council, representing the State Treasury at that time, was obliged to sell the land to him on the basis of that decision.

In 1990 a reform of the local administration was carried out. O wnership of land which was within the administrative territory of a municipality and which had previously been held by the State Treasury was transferred to the municipality.

In 1996 the 1989 decision became final.

The Szczecin Town Council, when subsequently called by the applicant and her husband to finalise the agreement embodied by that decision by way of selling the plot of land to them, refused to do so. It argued that the local land register ( księga wieczysta ) listed the State Treasury as an owner of the land concerned at that time. The municipality did not therefore have a valid legal title to it and could not sell it.

In 2003 the applicant called on the Zachodniopomorskie Governor ( Wojewoda Zachodniopomorski ) to issue an administrative decision transferring ownership rights from the State Treasury to the Szczecin municipality, but to no avail.

In 2003 the applicant and her husband lodged a civil action against the Szczecin municipality. It requested the court to oblige the municipality to sell the property concerned to the applicant ’ s husband on the basis of the 1989 decision.

The Szczecin District Court, by a judgment of 28 November 2003, dismissed the claim. The applicant appealed.

On 15 April 2004 the Szczecin Regional Court amended the contested judgment. It first held that the applicant ’ s claim could not be regarded as prescribed as the ten-year prescription time-limit had started to run only in 1996 when the 1989 decision had become final.

The court further obliged the municipality to sell the plot of land concerned to the applicant and her husband. It was of the view that the first ‑ instance court had erred in finding that neither the provisions of the National Land Fund Act nor the decision given in 1989 provided for an obligation on the part of the municipality to sell the land to the addressee of that decision. In the operative part of the judgment the court formulated expressly the essential provisions of the sale contract to be concluded.

The applicant and her husband, referring to this judgment, called the municipality to sell the property to them, but to no avail.

In 2009 the applicants lodged a civil lawsuit against the Mayor of Szczecin requesting that steps be taken by the court to put right the discrepancies between the entry in the land register and the actual ownership of the plot ( powództwo o uzgodnienie księgi wieczystej z rzeczywistym stanem prawnym ), or, alternatively, to impose an obligation on the State Treasury to conclude a contract by which the municipality would sell them the land.

On 30 July 2009 the Szczecin District Court dismissed their action. The court was of the view that land register could only be amended on the basis of an administrative decision issued by the G overnor on the basis of section 18(1) of the Local Self-Government Act of 10 May 1990 (“the 1990 Act”) confirming the ex lege transfer of ownership from the State Treasury to the local municipality on the basis of that Act. No such administrative decision had been given in respect of the property concerned. It was impossible for the civil court to give such a decision in civil proceedings or to impose a relevant obligation on the administrative authorities. In the absence of such a decision the court could not order that entries in the land register be amended.

The court further opined that the judgment given in 2004 could not be regarded, as the plaintiffs had argued, as the transfer of ownership from the State Treasury to the Szczecin municipality. For the same reason the court could not order the municipality to sell the property to the applicant.

The applicant ’ s appeal was dismissed on 4 March 2010 by the Szczecin Regional Court. The Regional Court held, inter alia , that despite the fact that the plaintiffs had pointed to the mistake in their statement of claim which had been addressed against the State Treasury, it could not rectify that mistake ex officio .

The Supreme Court refused to entertain the cassation appeal against this judgment by a decision of 23 February 2011.

On an unspecified date the applicant and her husband paid PLN 11,015 to the municipality. The municipality refuses to conclude a contract with them. The applicant submits that the municipality also refused to reimburse the amount she and her husband paid as the price of the property.

B. Relevant domestic law

A very significant reduction in the State Treasury ’ s land resources was brought about by legislative measures adopted in 1990 and 1991 and aimed at reforming the administrative structure of the State. The Local Self ‑ Government Act of 10 May 1990 (“the 1990 Act”) re-established municipalities and transferred to them powers that had previously been exercised solely by the local state administration. That included the relinquishment of control over public land and transfer of ownership of most of the State Treasury ’ s land to municipalities.

Pursuant to section 5(1) of the 1990 Act, ownership of land which had previously been held by the State Treasury and which was within the administrative territory of a municipality was transferred to the municipality.

Pursuant to section 18(1) of that Act the Governor as a local representative of the State administration should ex officio issue decisions confirming that ex lege transfer of ownership from the State Treasury to the local municipality had been made in respect of each property. Entries in land registers can be amended and ownership of the municipalities registered only on the basis of such decisions.

This provision, in so far as relevant, reads:

1. The Governors shall ex officio issue decisions concerning acquisition of ownership [by the local municipality] ...

2. A National Transfer of Ownership Commission shall be created to examine appeals against decisions referred to in item 1 above.

3. Prime Minister shall, at the motion of the Ministry of Internal Affairs, appoint the president and members of that Commission and determine the procedure to be applied in the proceedings.

In 2004 that Act was amended. Its section 17(a) obliged local municipal councils to draw up inventories of lands de facto taken over by the municipal authorities in respect of which such decisions had not yet been taken.

COMPLAINT

The applicant complains that the courts failed to give a decision making it possible for her and her husband to become lawful owners of the property in the manner prescribed both in the 1989 administrative decision and the civil court judgment given in 2004. The domestic authorities ignored a legally binding decision of the Szczecin Town Council and the subsequent judgment of the Szczecin Regional Court ordering the municipality to sell the land to the applicant. As a result, both the administrative decision and the judgment of the civil court have not been properly executed. The municipality also failed to return the amount already paid by the applicant and her husband for the land.

She relies on Articles 6 and 13 of the Convention.

QUESTION tO THE PARTIES

Does the fact that the administrative decision given in the applicant ’ s favour in 1989 which became final in 1996 and the Szczecin Regional Court ’ s judgment of 2004 have not yet been enforced give rise to a breach of the applicant ’ s right of access to a court, guaranteed by Article 6 § 1 of the Convention and her right to the peaceful enjoyment of her possessions within the meaning of Article 1 of Protocol No. 1 to the Convention?