CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 25695/94                       by Stanislaw SZCZEPANSKI                       against Poland         The European Commission of Human Rights (Second Chamber) sitting in private on 18 October 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 1 March 1994 by Stanislaw SZCZEPANSKI against Poland and registered on 17 November 1994 under file No. 25695/94;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the applicant, may be summarised as follows:         The applicant, a Polish citizen born in 1935, is retired and resides in Sianów.         The applicant had a savings account at the Sianów Cooperative Bank (Bank Spóldzielczy w Sianowie).   The savings in the bank were guaranteed by the State Treasury in accordance with the provisions of the Banking Act of 1989.   On 28 January 1994 the Koszalin Regional Court (S*d Wojewódzki) declared the bankruptcy of the bank and an administrator was appointed.         The applicant apparently unsuccessfully requested the administrator to order reimbursement of his savings with interest due. He argued that the State Treasury was obliged to reimburse him as the savings of the clients of the bank were guaranteed by the State in accordance with the Banking Act.         In reply to the applicant's subsequent complaint, the Ministry of Finance informed him on 25 February 1994 that under the Banking Act the State was obliged to reimburse those clients of the banks who had benefited from the State guarantees.   However, this obligation became effective only after the bankruptcy proceedings were completed and only to the extent that the satisfaction of the creditors' claims from the estate in bankruptcy proved impossible.   Therefore the State was under no obligation to reimburse the clients of the bank before the bankruptcy proceedings were terminated.         In reply to the applicant's complaint of 7 March 1994, the National Bank of Poland, Department of Supervision, informed him on 12 April 1994 that it was the administrator who was competent to deal with all issues relating to reimbursement of his savings.   The administrator was obliged to prepare a list of creditors of the bank within three months from the date of the declaration of bankruptcy.         In reply to the applicant's complaint to the Ombudsman,   he was informed in a letter of 13 April 1994 that in September 1992 the Ombudsman had requested the Supreme Court (S*d Najwyzszy) to adopt a resolution to resolve a legal problem arising out of the application of the Banking Act in respect of the temporal scope of the State Treasury obligations towards the clients of bankrupt banks.   On 18 February 1994 the Supreme Court had refused to do so.   Subsequently the Ombudsman requested the Prime Minister to take a position in respect of the practice of the Government relating to the State guarantees for savings deposited in certain bankrupt banks.    The Ombudsman indicated that the application, in particular by the Ministry of Finance, of the relevant provisions of the Banking Act was contrary to the actual content of these provisions and to their purpose.         On 26 April 1994 the Ombudsman informed the applicant of the Prime Minister's reply, according to which the State was under no obligation to reimburse the clients of the bankrupt banks before the bankruptcy proceedings were terminated.         On 24 January 1995 the Koszalin Regional Court informed the applicant that he would have to pay an advance court fee if he wished to pursue an action against the State Treasury.   Apparently the applicant did not pay the fee.   Relevant domestic law and practice         Article 49 para. 1 of the Banking Act provides that the State Treasury shall guarantee the savings deposited at the banks owned by the State and certain other banks.         On 7 June 1994 the Ombudsman brought an action with the Constitutional Court (Trybunal Konstytucyjny), asking for an interpretation of Article 49 para. 1 of the Banking Act.   In particular, he requested the Court to consider whether a client of a bankrupt bank having the State guarantees had a civil claim against the State Treasury for reimbursement of his entire savings and interest due as at the date of the declaration of bankruptcy.   Alternatively, the Court was asked to consider whether such a claim existed only after the bankruptcy proceedings had been terminated and then only to the extent that the reimbursement of the capital and interest due as at the date of bankruptcy had proved impossible.         In its decision of 12 January 1995 the Constitutional Court found that the liability of the State Treasury under Article 49 para. 1 of the Banking Act, became effective on the date of the declaration of bankruptcy.   It declared that the clients of such banks had a civil claim against the Treasury.   COMPLAINTS         The applicant complains that his right to peaceful enjoyment of his possessions has been violated as the State Treasury refuses to reimburse his savings deposited at the bankrupt bank as required by the Banking Act.   THE LAW         The applicant complains that his right to peaceful enjoyment of his possessions has been violated as the State Treasury refuses to reimburse his savings deposited at the bankrupt bank as required by the Banking Act.         The Commission examined this complaint under Article 1 of Protocol No. 1 (P1-1) of the Convention, which provides:         "Every natural or legal person is entitled to the peaceful       enjoyment of his possessions.   No one shall be deprived of his       possessions except in the public interest and subject to the       conditions provided for by law and by the general principles of       international law.         The preceding provisions shall not, however, in any way impair       the right of a State to enforce such laws as it deems necessary       to control the use of property in accordance with the general       interest or to secure the payment of taxes or other contributions       or penalties."         The Commission first observes that the events from which the present application originates, i.e. the bankruptcy of the Sianów Cooperative Bank on 28 January 1994, occurred prior to 10 October 1994, the date on which Poland ratified Protocol No. 1 to the Convention. It is undisputable that under the Banking Act of 1989 the applicant has a claim against the State Treasury to have his savings deposited at the bankrupt bank reimbursed.   The only issue which was in dispute between the applicant and the State Treasury was the time from which this obligation became effective.   It appears from the decision of the Constitutional Court of 12 January 1995 that this claim became effective as from the date of the declaration of the bankruptcy, i.e. 28 January 1994.         Since it was not until 12 January 1995, the date of the decision of the Constitutional Court, that it became clear that the applicant could present his claim as from the date of the declaration of bankruptcy, the Commission finds that it cannot reject the application as being outside its competence ratione temporis.         The Commission is not required to decide whether or not the facts submitted by the applicant in support of his complaint disclose any appearance of a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter after all domestic remedies have been exhausted".         In the present case the Commission observes that the applicant had at his disposal a civil claim against the State Treasury, arising from the provisions of the Banking Act relating to the State guarantees, as clearly indicated by the decision of the Constitutional Court of 12 January 1995.   Thus it was open to him to bring an action in a civil court.   The applicant did not do so.   Therefore he has not exhausted the remedies available under Polish law.   It follows that the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber        (M.-T. SCHOEPFER)                         (H. DANELIUS)