CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1998

.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. 32724/96                       by Józef MORDARSKI                       against Poland          The European Commission of Human Rights (Second Chamber) sitting in private on 4 March 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  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 28 September 1995 by Józef Mordarski against Poland and registered on 22 August 1996 under file No. 32724/96;        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 residing in Krasne Potockie, is a farmer.   He is represented before the Commission by Mr Zbigniew Cichon, a lawyer practising in Kraków.        The facts of the case, as submitted by the applicant, may be summarised as follows:     Particular circumstances of the case        In 1966 the applicant's mother informally donated her farm located in Krasne Potockie to the applicant.   However, no relevant entry in the local land register was made and, as a result, the title was not transferred to him.        In a will made in 1974 she bequeathed the farm to the applicant.        On 27 December 1979 the applicant obtained a decision of the Chelmiec Mayor (Naczelnik gminy) declaring that by virtue of the Agricultural Property Regulation Act of 1971 ("the 1971 Act") he had become the owner of plots of land Nos. 460, 145 and 146 located in Krasne Potockie.        On 17 October 1980 the Regional Commission for Regulation of Property (Wojewódzka Komisja do Spraw Uwlaszczenia) set this decision aside and declared that it was the applicant and his mother who were co-owners of the plots.   Apparently, on an unspecified later date this decision was quashed.        In a will made in 1980 the applicant's mother bequeathed the farm to the applicant's brother S.   She died in 1982.   On 6 June 1982 the Nowy S*cz District Court held that the applicant's brother had acquired the estate of their mother, including the farm in Krasne Potockie in its entirety.        On 4 April 1990 the Nowy S*cz District Court (S*d Rejonowy) dismissed the action lodged by the applicant and his brother S., by which they claimed that the court should declare that the applicant had acquired the ownership of the plot No. 461 by virtue of the 1971 Agricultural Property Regulation Act.   The court found that the applicant had not been the actual possessor of the plot concerned on 4 November 1971, which, under the Act, was a date decisive for the decision sought by him.   Consequently, he did not satisfy the relevant requirement for acquisition of agricultural property.        On 12 June 1990 the Nowy S*cz District Court dismissed the applicant's action by which he claimed that the Court should declare that he had acquired the title to plots Nos. 145, 145 and 460 by virtue of the 1971 Agricultural Property Regulation Act.        On 16 October 1990 the Nowy S*cz Regional Court (S*d Wojewódzki) dismissed the applicant's appeal against this judgment.   The judgment was rendered by a panel composed of judges E.A., A.S. and J.M.        On 4 June 1991 the Nowy S*cz Regional Court ordered the applicant to vacate the farm and to transfer it to his brother S.        Apparently in 1993 the applicant lodged an action with the Nowy S*cz District Court, claiming that he had acquired the title to the farm by prescription.   He contended that his mother had donated the farm to him in 1966 and that he had been its only de facto possessor since that time.   Accordingly, he had acquired the title by prescription, the legal requirement of an uninterrupted bona fide possession for twenty years having been complied with.        On 16 November 1994 the Nowy S*cz District Court dismissed the applicant's action.   The court established that the farm consisted of four plots Nos. 145, 146, 460 and 461.   It was the applicant and his mother who had used the plots Nos. 145, 146, 460 and 461, whereas the plot No. 461 was, since 1981, in the de facto possession of the applicant's brother.   Even though it was true that the applicant had been working on the farm with his mother, there was no evidence to support the conclusion sought by the applicant that his mother had donated or had intended to donate the farm to him.   The donation, which had allegedly been made to the applicant in 1966, had not been drawn up as a notarial deed as required by law.   As a result, the title to the land had not been transferred to the applicant from his mother. Moreover, the document of donation appeared to have been forged.   From 1975 until his mother's death in 1982 the applicant had worked at the farm with his mother.   It transpired in particular from the applicant's mother's wills drawn up in 1974 and 1980 that she had considered herself the owner and possessor of the farm, competent to donate or bequeath it if she wished to do so.   Accordingly, it was the applicant's mother who had been the possessor and owner of plots Nos. 145, 145 and 460 until her death, whereas the applicant's brother had been in de facto possession of the plot No. 461 from 1981. Consequently, the applicant did not satisfy with the legal requirement for acquisition of property by prescription under the Civil Code as he had not possessed the plots in question as a sole de facto bona fide possessor for twenty years.        In taking this decision the Court relied on the material contained in the case-files of the inheritance proceedings, terminated by the judgment of 6 June 1982, and of the proceedings concerning the applicant's claims for acquisition of title to the property.   The Court further heard evidence from five witnesses, and questioned the applicant and his two brothers.        The applicant lodged an appeal with the Regional Court.   He submitted that the District Court had wrongly assessed the evidence as regards the periods in which he had actually been in bona fide possession of the farm.   He further contended that the Court's findings were incompatible with certain evidence.   In particular, the Court had failed to take into consideration the evidence given by certain witnesses as to the fact that throughout the material period the applicant had been running the farm and paying the taxes.   The Court did not consider certain documents from which it transpired that he had been selling merchandise from the farm.   The Court further failed to consider the fact that the local land inventory listed the applicant and his mother as the possessors of the farm.        At the hearing before the Regional Court on 23 February 1995 the applicant challenged the judges E.A., J.M. and A.S.   He called their impartiality into question as they had also constituted the panel which had dismissed the applicant's appeal in the proceedings terminated by the judgment of 16 October 1990.        On 8 March 1995 the Nowy S*cz Regional Court dismissed the applicant's challenge of the judges, considering that the legal requirements for a judge to step down, i.e. a personal relation with the party which would be capable of casting doubt on his or her impartiality, were not complied with.        On 25 April 1995 the Nowy S*cz Regional Court dismissed the applicant's appeal against the judgment of 16 November 1994.   The Court considered that the lower court had not been arbitrary in its assessment of the evidence.   Relevant domestic law        Under Article 172 of the Civil Code, the factual possessor of real property acquires ownership of that property if he or she was its sole actual possessor for twenty years, if he or she was in good faith, and for thirty years, if in bad faith.        Under the 1971 Agricultural Property Regulation Act, the de facto sole   actual possessor of agricultural real property acquired ex lege ownership of it if it was in his or her de facto possession on 4 November 1971.        In pursuance of Article 31 of the Code of Civil Procedure, a judge steps down, upon the motion of one of the parties, if between him or her and one of the parties there exists a personal relation which may cast doubt on his or her impartiality.        Pursuant to Article 385 of the Code of Civil Procedure, applicable at the relevant time, the appellate court may rehear evidence which has already been heard by the first-instance court or hear additional evidence if it decides that this would contribute to the acceleration of the proceedings.   Following the results of such a hearing, the court may establish the facts differently from what was done by the first-instance court.     COMPLAINTS        The applicant complains under Article 6 of the Convention that the proceedings concerning his claim for acquisition of ownership by prescription were unfair in that the Nowy S*cz District Court, in the written grounds of its judgment of 11 November 1994, failed to consider evidence given by two witnesses who had stated that the applicant had been the de facto sole possessor of the farm.   He further submits that the court wrongly assessed the evidence and thereby reached an incorrect decision.        The applicant further complains that the Regional Court lacked impartiality in the proceedings upon appeal in that those proceedings were conducted by the same three judges of the Regional Court who, by a judgment of 16 October 1990, had dismissed the applicant's appeal against the judgment of the Nowy S*cz District Court of 12 June 1990 dismissing his claim for acquisition of ownership by virtue of the administrative laws on regulation of agricultural property.   As those judges had followed the reasoning of the lower court that the applicant had not been the sole de facto possessor of the land on 4 November 1971, which under the applicable laws was a decisive date for the decision sought by him, it was highly unlikely that the same judges would set aside the judgment of 16 November 1994 which was in line with their decision of 16 October 1990.        The applicant complains under Article 13 of the Convention that no appeal to a higher court lay against the dismissal of the challenge in respect of the judges.     THE LAW   1.    The applicant complains under Article 6 (Art. 6) of the Convention that the proceedings concerning his claim for acquisition of ownership by prescription were unfair in that the Nowy S*cz District Court, when taking   its judgment of 11 November 1994 failed to consider evidence given by two witnesses.   He further submits that the court wrongly assessed the evidence and thereby reached an incorrect decision.        Article 6 (Art. 6) of the Convention in its relevant part reads:        "1.    In the determination of his civil rights and obligations      ..., everyone is entitled to a fair ... hearing within a      reasonable time by an independent and impartial tribunal ..."        The Commission recalls that in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with any application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission refers, on this point, to its established case-law (see No. 21283/93, Dec. 5.4.94, D.R. 77-A, pp. 81, 88).        The Commission further recalls that it is for the national courts to assess the evidence before them.   The Commission's task is to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (Eur. Court HR, Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10, para. 26).        The Commission observes that in the present case, in the proceedings concerning prescription, it fell to the courts to establish whether the applicant had been the de facto possessor of the farm for the period relevant for the purposes of Article 172 of the Civil Code. In order to do so, the Nowy S*cz District Court relied on the material contained in the case-files of the inheritance proceedings and of the proceedings concerning the applicant's claim for the acquisition of property under the Agricultural Property Regulation Act of 1971.   The Court further heard evidence from five witnesses and questioned the applicant and his two brothers, and examined various documents.   The Commission finally notes that in the appellate proceedings the Regional court examined the applicant's complaint about the allegedly arbitrary and superficial assessment of the evidence which the applicant had raised in his appeal and concluded that the lower court had not been arbitrary in its assessment of the evidence.   The Commission considers that the courts had ample evidence at their disposal and that they reached their conclusions, having   considered the material submitted to them.   In conclusion, there is nothing in the applicant's complaints to show that in the present case the domestic courts in this respect acted in an unfair or arbitrary manner.        It follows that this complaint must be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further complains that the Regional Court lacked impartiality in the prescription proceedings in that those proceedings were conducted by the same three judges of the Regional Court who, by a judgment of 16 October 1990, had dismissed the applicant's appeal against the judgment of the Nowy S*cz District Court of 12 June 1990 dismissing his claim for acquisition of ownership by virtue of the administrative laws on regulation of agricultural property.        The Commission recalls that the existence of impartiality for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubts in this respect. Under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality.   What is decisive is whether the accused's fear that a particular judge lacks impartiality can be held to be objectively justified (see Eur. Court HR, Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, para. 48; Ferantelli and Santangelo v. Italy judgment of 7 August 1996, Reports 1996-III, No. 12, para. 56).        The Commission first notes that in the present case two separate proceedings are concerned.    However, there was a certain factual nexus between those proceedings in that the first-instance courts had to examine in both proceedings whether the applicant was the sole actual possessor of the farm.        However, the Commission further observes that in the proceedings which ended with the Nowy S*cz Regional Court's judgment of 16 October 1990 the applicant requested the Court to declare that he had acquired property of the farm by virtue of the Agricultural Property Regulation Act of 1971.   Pursuant to the relevant provisions of that Act, a prerequisite for such a decision was a finding that the plaintiff had been a sole de facto possessor of the land concerned on 4 November 1971.   The Nowy S*cz District Court refused to allow the applicant's action in these proceedings, having found that at the crucial date he had not been in such a possession of this plot as it was his mother who had been the owner and the possessor of the farm.        The Commission further notes that in the subsequent civil proceedings the applicant sought a decision to the effect that he had acquired title to the entire farm   by prescription.   Under the relevant provisions of the Civil Code, in order to grant the applicant's action it was necessary for the courts to establish that he had possessed all the plots of the farm for twenty years as a bona fide sole de facto possessor.   The District Court dismissed this claim on 16 November 1994 having found that the applicant did not satisfy this requirement. The Regional Court, having examined the applicant's complaints as to the assessment of the evidence,   in turn upheld the contested judgment on 25 April 1995.   The panel of the Regional Court composed of the same three judges took the decision in the proceedings upon appeal in both sets of proceedings.        The Commission therefore considers that, in the two sets of the proceedings concerned, it fell to the first-instance courts to establish different sets of factual circumstances. Thus, whatever findings the District Court had made in the first proceedings, they were of a certain relevance to the prescription proceedings, but by no means could they be considered as conclusive for the outcome of the second set of proceedings before the District Court.        The Commission further considers that the alleged lack of impartiality relates only to the appellate proceedings. In such proceedings it falls to the court to examine alleged procedural shortcomings of the proceedings before the first-instance court.   It is true that under Polish law the appellate court can exceptionally hear evidence in order to establish the facts.   However, in the present case in the prescription proceedings the Regional Court   limited itself to examining the applicant's complaints.   Thus, the judicial review did not in fact have any bearing on any questions of fact.   In these circumstances, the Commission cannot find that the fact that the same judges decided in the appellate proceedings in two cases adversely affected the impartiality of the Regional Court in the prescription proceedings, thus rendering the proceedings incompatible with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this complaint must be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant finally complains under Article 13 (Art. 13) of the Convention that no appeal to a higher court lay against the dismissal of the challenge in respect of the judges.        The Commission, having regard to its above conclusions under Article 6 para. 1 (Art. 6-1) of the Convention, does not find it necessary to examine the complaint also under Article 13 (Art. 13). The requirements of Article 13 (Art. 13) are less strict than, and are absorbed by, those of Article 6 para. 1 (Art. 6-1) (cf. Eur. Court HR, Sporrong and Lonnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 31, para. 88).   Accordingly, no separate issue arises under Article 13 (Art. 13) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.      M.-T. SCHOEPFER                                 J.-C. GEUS       Secretary                                    President to the Second Chamber                       of the Second Chamber