CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.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. 25696/94                       by Maria KUCZYNSKA                       against Poland           The European Commission of Human Rights (Second Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              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 21 March 1994 by Maria KUCZYNSKA against Poland and registered on 17 November 1994 under file No. 25696/94;         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 applicant, a Polish citizen born in 1955, is a pensioner residing in Poznan.         The facts of the case, as submitted by the applicant, may be summarised as follows:     Particular circumstances of the case         In 1975 the applicant opened a housing savings account in the State Savings Bank (Panstwowa Kasa Oszcz*dnosci) and became a member of a housing cooperative in Poznan.         On 4 May 1994 the applicant requested the Supreme Court (S*d Najwyzszy) to make an exception from the relevant legal provisions and to allow that she be paid her housing savings at the State Savings Bank reassessed so as to offset effects of inflation and a housing award so reassessed (see Relevant domestic law) as she was in a very difficult financial situation.         In a letter of 23 May 1994 the Supreme Court informed the applicant that it lacked competence to deal with her request as it was not a party to the bank account contract.   It was only the State Savings Bank which was competent to take any decisions as to any exceptions or modifications to be made as regards the execution of the contract of the housing savings account and the applicant's rights resulting therefrom.         On 30 May 1994 the applicant requested the State Savings Bank to pay her the reassessed sum of her savings and of the housing award.         In a letter of 23 June 1994 the State Savings Bank informed the applicant that under relevant legislation the housing award could only be granted to persons who had complied with the requirements set forth by the Council of Ministers' order.   Persons who did not comply with those requirements, i.e. who had not bought or built an apartment or a house, were only entitled to reimbursement of their housing savings with interest.   The regulations in force did not provide for an entitlement to receive the reassessed savings.     Relevant domestic law         Under the Council of Ministers' order of 22 June 1993 the persons who have accumulated savings on the housing savings accounts in the State Savings Bank opened before 23 October 1990, which had remained opened for not shorter than five years, were entitled to housing award if they had bought or built a house or apartment or adapted non-housing space to housing purposes.   It was the State Treasury which financed those payments and technically they were to be carried out by the State Savings Bank.         In its resolution of 29 July 1993 the Supreme Court decided that under the provisions of the Civil Code as amended in 1990 the housing savings were not subject to reassessment by the State Treasury which would offset the results of inflation.   In taking this decision the Court had regard to the provisions of the Civil Code pertaining to a possibility of reassessment of pecuniary obligations in view of inflation.   These provisions clearly excluded such a possibility in respect of sums deposited on bank accounts.         As regards the housing savings awards, the Supreme Court further decided that those awards were not subject to reassessment either.   The Court observed, inter alia, that the problem concerned approximately five million citizens who had accumulated housing savings.   A reassessment of the housing awards for all the persons concerned by the State Treasury would not be economically feasible as it would put an undue burden on the state budget.   The Court further observed that, in any event, the Council of Ministers' order of 22 June 1993 provided for a partial reassessment of such awards in the circumstances set forth therein.     COMPLAINTS         The applicant complains in substance under Article 1   of Protocol No. 1 to the Convention that under legislation in force she can only obtain from the savings bank her savings accumulated from 1975 with interest and is not entitled to obtain the housing award to which are entitled the persons who have built or bought an apartment or a house. She also complains that her savings are not subject to reassessment which would offset the effects of inflation and as a result, the sum to which she is entitled is ridiculously small and is in no proportion to the actual prices of houses or apartments.   She complains that she had opened her housing savings account in 1975, acting on assumption that she would obtain an apartment within the framework of the State- supported housing cooperatives scheme, but she did not obtain it.         She further complains that the Supreme Court's resolution of 29 July 1993 deprived her of access to a court competent to examine her claim to receive the housing award and a reassessed sum of her savings.     THE LAW   1.     The applicant complains in substance under Article 1 of Protocol No. 1 (P1-1) that under legislation in force she cannot obtain either a reassessed sum of her housing savings or the housing award.         Article 1 of Protocol No. 1 (P1-1) 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."     2.     The Commission observes that Poland ratified Protocol No. 1 to the Convention on 10 October 1994.   It is true that the legislation referred to by the applicant was enacted before that date.   However, the Commission considers that this legislation created a continuing situation in that it established entitlements for persons who had accumulated savings on the housing savings accounts in the State Savings Bank and this legal situation remains in force.   Therefore the present application cannot be declared inadmissible as being incompatible ratione temporis with the Convention.   3.     Under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted.         The Commission recalls its case-law according to which an applicant is excused from pursuing a domestic remedy if he shows that on the basis of well-established case-law it would be of no avail (No. 11945/84, Dec. 12.3.87, D.R. 51, p. 186; No. 10027/82, Dec. 5.12.84, D.R. 40, p. 100).         In the present case the applicant has at her disposal a civil action against the State Savings Bank in which she could have claimed payments of the reassessed sum of her savings and of the housing award. However, the Commission considers that in the light of the relevant legislation and of the Supreme Court's resolution of 29 July 1993, her action would clearly have been bound to fail.   In these circumstances, the applicant should be exempted from an obligation to exhaust this remedy.         The application cannot, therefore, be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   4.     As regards the substance of the complaint, the Commission observes that the legislation complained of provided for specific measures in order to safeguard certain pecuniary rights of the persons possessing the housing savings account.   These measures comprised   an entitlement to the housing award to the persons who have built or bought a house or an apartment.   The persons who were not entitled thereto could obtain a reimbursement of their housing savings with interest.   That legislation was enacted as in the light of the general economic situation of the State and,   in particular, the economic transition, it had become impossible to secure housing for all persons within the framework of the former State-supported cooperative system. Under this legislation the applicant is entitled to obtain the sum of her savings, accumulated from 1975, with interest. The Commission observes that the applicant was not deprived of her possessions within the meaning of the first paragraph of Article 1 of Protocol No. 1 (P1-1) to the Convention, nor did the State exercise "control of property" in her regard.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         Insofar as the applicant complains that she did not obtain an apartment within the framework of the State-supported cooperative housing system, this complaint is incompatible ratione temporis with the Convention in respect of events preceding 10 October 1994, the date on which Poland ratified Protocol No. 1 to the Convention.   As regards events after that date, the Commission recalls that Article 1 of Protocol No. 1 (P1-1) to the Convention does not recognise any right to become the owner of property (No. 11628/85, Dec.9.5.86, D.R. 47, p. 270).   It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   5.     The applicant further complains that the Supreme Court's resolution of 29 July 1993 deprived her of access to a court competent to examine her claim to receive the reassessed sum of her housing savings at the State Savings Bank and the housing award.         The Commission observes that the resolution of the Supreme Court concerns only the substantive claims of persons in situations similar to the applicant's and does not limit or exclude access to civil court as regards claims of persons who had opened the housing savings accounts.   It remained open to the applicant to pursue her claim for the reassessed sum of her housing savings and the housing award before a civil court, had she wished to do so.   It is true that in the light of the relevant legislation and the Supreme Court's resolution the applicant's action would have been bound to fail.   However, this resolution does not have any bearing on access to court within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber