CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 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. 30641/96                     by Jadwiga SLOWIK                     against Poland          The European Commission of Human Rights (Second Chamber) sitting in private on 16 April 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 11 January 1996 by Jadwiga SLOWIK against Poland and registered on 26 March 1996 under file No. 30641/96;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on 10 May      1997 and the observations in reply submitted by the applicant on      18 June 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Polish citizen born in 1914, is retired and resides in Warsaw.        The facts of the case, as submitted by the parties, may be summarised as follows:     a)    Particular circumstances of the case        In November 1945, by virtue of the Decree on Real Property in Warsaw of 26 October 1945, all real property located in Warsaw was nationalised.        In 1948 the Liquidation Office (Urz*d Likwidacyjny) lodged an application, pursuant to Article 7 of the October 1945 Decree on Real Property in Warsaw, for ownership for a limited period ("wlasnosc czasowa") of a plot located in Warsaw at Pi*kna Street to be awarded to the former owners, Mr and Mrs K., who had been killed in the Warsaw ghetto.        In 1953 the Warsaw City Council refused to award title to the property to Mr and Mrs K., considering that the application had not been submitted in conformity with Article 7 of the 1945 Decree.        On 4 December 1991 the Warsaw District Court (S*d Rejonowy) declared that the applicant inherited the estate of Mr and Mrs K., who had been killed in a German concentration camp in 1942.   Their property included the plot located at Pi*kna Street.        On 20 December 1991 the applicant requested the Minister of Planning and Construction to invalidate the 1953 refusal to grant the property for a limited period to the former owners of the plot.   She submitted that the decision was in breach of Article 7 of the 1945 Decree.   In particular, there had been no grounds for refusal as the plot had not been designated for any public use.        On 22 December 1991 the applicant requested the Warsaw-Centre District Office (Urz*d Dzielnicy Warszawa-Sródmiescie) to bestow on her a right to perpetual use of the property concerned.        On 6 May 1992 the Minister of Planning and Construction declared the 1953 decision null and void on the ground that it had been wrong in establishing that no application for award of ownership for a limited period had been lodged.   In fact, such an application had been lodged in 1948 by the Liquidation Office.        On 9 June 1992, upon the applicant's request, the District Court decided to strike out the entry in the land register which certified that the State Treasury was the owner of the plot.   As a result, the relevant entry was amended to the effect that Mr and Mrs K. remained the owners.        On 9 December 1992 the Mayor of Warsaw-Centre refused to award the applicant the right to perpetual use of the plot.   The applicant lodged an appeal with the Mayor of Warsaw against this decision.        On 28 April 1993 the Mayor of Warsaw (Prezydent m. st. Warszawy) set aside the impugned decision and ordered that the case be reconsidered.   On 15 December 1993 the Mayor of Warsaw ordered that the case be transferred to the Warsaw-Wola District Office (Zarz*d gminy) on the ground that the Warsaw-Centre District Office lacked jurisdiction to deal with it.   This was so because the Warsaw-Centre District Office, when pronouncing the decision on the applicant's request to be awarded the right of perpetual use of the land, would be acting as a party to the proceedings as the municipality owned the land at issue.   At the same time, it would be acting as the decision-making administrative authority.        By a decision of 11 March 1994 the Warsaw-Wola District Office (Zarz*d dzielnicy Warszawa-Wola) awarded the right to perpetual use of the plot to the applicant.        On 17 June 1994 the Mayor of Warsaw rejected an appeal against the decision of 11 March 1994, lodged by the Mayor of the Warsaw- Centre, on the ground that the latter was not a party to the proceedings.   It was the District Office which, under Article 82 para. 2 of the Law on Land Administration and Expropriation of 1985, was competent to represent the municipality in its capacity as the owner of the land in cases concerning decisions on awarding the right to perpetual use to individuals.   Accordingly, the decision became final.        On 29 November 1994 the Mayor of Warsaw-Centre requested the Municipal Appeal Board to declare the decision of 11 March 1994 null and void. It was argued that the impugned decision was in breach of Article 7 of the Decree on Real Property in Warsaw of 26 October 1945. This Article required that an application for award of ownership for a limited period ("wlasnosc czasowa") be submitted by the owners.   In the present case such an application had been submitted in 1948. However, it had not been submitted by Mr and Mrs K., but by the Liquidation Office who lacked competence to do so.   It was further argued that the decision should be declared null and void by virtue of Articles 155 and 156 of the Code of Administrative Procedure.        On 17 February 1995 the Municipal Appeal Board declared that the decision of 11 March 1994 was null and void as not being in conformity with the law.   The Board considered that the Liquidation Office had indeed lacked competence to submit the request on behalf of Mr and Mrs K.        The applicant lodged an appeal with the Supreme Administrative Court (Naczelny S*d Administracyjny).   She submitted that the decision of 11 March 1994, which had granted her a property right, was final and not subject to any appeal in the normal course of the proceeedings.        On 7 July 1995 the Supreme Administrative Court dismissed the applicant's appeal on the ground that the 1948 application had not been submitted by persons entitled to do so under Article 7 of the 1945 Decree, i.e. the owners or their legal successors having been in de facto possession of the land when lodging the application.   The Liquidation Board had not been competent to lodge this application. Therefore the 1953 decision to award to Mr and Mrs K. ownership limited in time should not have been set aside in 1992.   In conclusion, the decision of 11 March 1994 had been based on the assumption that the applicant, as a legal successor of Mr and Mrs K., was entitled to obtain the right to perpetual use of the land concerned.   This decision was in breach of the law and as such had to be set aside.        The judgment was served on the applicant's lawyer on 13 September 1995.        By a decision of 12 February 1996 the Mayor issued a permit for a third party to install a parking for twenty places on the plot concerned.     b)    Relevant domestic law        Article 155 of the Code of Administrative Procedure permits   the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest, if this is not prohibited by specific legal provisons.   In particular, pursuant to Article 156, a final administrative decision is subject to annulment if it has been issued by an   authority which had no jurisdiction, or without a legal basis, or contrary to the applicable law.        Article 160 of the Code of Administrative Procedure enables persons who have sustained a loss as a result of a final administrative decision being declared null and void pursuant, inter alia, to Article 156, to submit a compensation claim to the administrative authority which quashed this decision, and this within three years from the date on which the decision on annulment became final.   A decision in respect of a compensation claim can be appealed against to a civil court.        The right to perpetual use of land which is owned by municipalities is regulated in Book Two of the Civil Code: Property and Other Rights In Rem, Title Two: Right to Perpetual Use.   Pursuant to the relevant provisions, this right consists of an entitlement to exclusive use, by an individual or other legal entity, of land owned by a municipality or by the State for ninety-nine years against payment of certain rates, paid every year.   A person having this title to the land can construct buildings thereon of which he will be the owner. An administrative decision of a municipality to confer the right to perpetual use on a given individual is a necessary and sufficient condition for the conclusion of a final contract to this effect between the parties.   The contract between the municipality and the person concerned must be concluded in the form of a notarial deed.   The right to perpetual use can be sold or bequeathed.     COMPLAINTS        The applicant complains under Article 1 of Protocol No. 1 to the Convention that the decision of 11 March 1994 conferred on her a property right as she was awarded a right to perpetual use of the plot concerned.   She contends that this was a final administrative decision, against which no appeal lay in the normal course of the proceedings.        The applicant submits that the judgment of the Supreme Administrative Court deprived her of her property right in that it set this decision aside under Article 156 of the Code of Administrative Procedure.   She complains that the court failed to address her argument that the decision which gave her the right to perpetual use of the plot was a final one and not subject to any appeal in the normal course of the proceedings.        The applicant submits that in her case Article 7 of the Decree on Real Property in Warsaw of 26 October 1945 was applied in a manner which discriminated against owners of plots in Warsaw of Jewish origin. Neither these persons, who had mostly been killed in 1943 by the German occupation forces during the liquidation of the Warsaw ghetto, nor their legal successors, were in a position to submit the relevant applications as required by this provision.   She complains under Article 1 of Protocol No. 1 to the Convention read together with Article 14 of the Convention that she is being discriminated against in the enjoyment of her property rights as she is Jewish herself.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 11 January 1996 and registered on 26 March 1996.        On 17 January 1997 the Commission decided to communicate the applicant's complaint concerning the alleged deprivation of her property right to the respondent Government.        The Government's written observations were submitted on 10 May 1997, after an extension of the time-limit fixed for that purpose.   The applicant replied on 18 June 1997.     THE LAW        The applicant submits that the decision of 11 March 1994 conferred on her a property right as she was awarded a right to perpetual use of the plot concerned.   The applicant complains under Article 1 of Protocol No. 1 (P1-1) to the Convention that the judgment of the Supreme Administrative Court deprived her of her property right. She further complains under Article 1 of Protocol No. 1 to the Convention read together with Article 14 (P1-1+14) of the Convention that she is being discriminated against in the enjoyment of her property rights as she is Jewish.        Article 1 of Protocol No. 1 (P1-1) to the Convention reads:        "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 Government first submit that on 10 October 1994, i.e. the date on which Poland ratified Protocol No. 1 to the Convention, the applicant was not an owner of the property concerned.   The decision of 11 March 1994 conferred on her a right to perpetual use.        The Government further submit that under Article 1 of Protocol No. 1 (P1-1) to the Convention limitations on the enjoyment of property rights   can be imposed in the public interest.   They emphasise that the expropriation of property located in Warsaw pursuant to the Decree on Real Property in Warsaw of October 1945 was dictated by the necessity of rebuilding the capital city, which had been razed to the ground by the Nazi army, and of allocating land, on a functional basis, for construction purposes.   These necessities were clearly of a public- interest character.   The expropriation was based on the Decree, which, in the hierarchy of law sources, had at the relevant time a rank equal to that of a bill enacted by a parliament.   Thus, the 1945 expropriation was subject to conditions provided for by law.        The Government further submit that the judgment of the Supreme Administrative Court of 7 July 1995 does not amount to a breach of the applicant's right to peaceful enjoyment of her possessions.   This is so as the applicant was never in de facto possession of the property concerned.        They further submit that the outcome of the proceedings terminated by the Supreme Administrative Court's judgment were in compliance with the requirements of Article 1 of Protocol No. 1 (P1-1) to the Convention.   The applicant was neither the owner of the property concerned, nor had she been in de facto possession thereof.   The expropriation of the applicant's predecessors in title had been effected in conformity with the laws applicable at the relevant time. The applicant's request to be awarded the right to perpetual use was assessed in the light of these laws and it was clear that the relevant requirements for the transfer of the title to the applicant were not complied with.   It was only in 1991 that the applicant inherited the estate of Mr and Mrs K.   She had the right of perpetual use of the land concerned only from 17 June 1994, i.e. the date on which the decision of 11 March 1994 became final, to 17 February 1995.   However, within that period she neither entered into de facto possession thereof, nor had her right registered in the land register.   Thus, the conclusion that the judgment of the Supreme Administrative Court interfered with her de facto possession of the property would be untenable.        The Government conclude that this complaint must be declared manifestly ill-founded.        The applicant submits that expropriation of all real property located in Warsaw pursuant to the 1945 Decree amounted to a serious breach of property rights and constituted a violation of the Polish Constitution of 1921, in force at that time.   She stresses that the provisions of the 1945 Decree relating to compensation for expropriated owners remained a dead letter, as relevant ordinances were never issued by the competent authorities.   She points out that, in the absence of any reprivatisation laws, the municipalities in Warsaw continue to disregard the rights of former owners and their successors and sell land within their jurisdiction to third parties, this being motivated exclusively by pursuit of profit.        She further states that the 1945 Decree fixed the time-limit for the submission of requests to be granted ownership for a limited period at 19 October 1948.   It was only for certain plots, appropriate for one-family housing, that this time-limit was subsequently retroactively prolonged in 1965.   Thereby, Polish citizens of Jewish nationality were effectively deprived of any possibility of getting their property back as those who had survived the Holocaust left Poland shortly after the Second World War and were not aware of the procedures created by the 1945 Decree.   This put them at a serious disadvantage.        The applicant submits that in her case the decision of 11 March 1994 became final. It is true that the municipality subsequently did not conclude a notarial contract with her.   This was so despite the fact that on numerous occasions she requested the municipality to conclude the contract.   The applicant emphasises that the failure of the municipality to conclude a final contract with her lacked any legal basis and was never explained by the municipality.   The applicant further contests the Government's arguments to the effect that she was not the owner of the plot.   She submits in this respect that, following the decision of the Minister of Planning and Construction of 6 May 1992, by which the Minister declared null and void the 1953 refusal to award the limited property rights on Mr and Mrs K., she had requested the court in charge of the land register to delete the entry to the effect that the State Treasury was the owner of the plot. The court complied with her request. Accordingly, the relevant entry in the register showed that Mr and Mrs K., to whom she is a rightful successor, were the owners.        The Commission first recalls that anyone who complains of an interference with one of his property rights must show that such a right existed (No. 7694/76, Dec. 14.10.77, D.R. 12, p. 131).        In this respect, the Commission recalls the established case-law of the Convention organs, according to which "property" can be either "existing possessions" (see Eur. Court HR, Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 23, para. 48) or assets, including claims, which an applicant can, at least arguably, "legitimately expect" to see realised (cf. Eur. Court HR, Pine Valley Developments Ltd. and others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 23, para. 51, and Pressos Compania Naviera S.A. and Others v. Belgium judgment of 20 November 1995, Series A no. 332. p. 21, para. 31).        The Commission will first examine whether Article 1 of Protocol No. 1 (P1-1) applies to the rights affected in the present case.        The Commission notes that it is not in dispute between the parties that the administrative decision of 11 March 1994 was a legal basis for conclusion of the civil-law contract which would confer on the applicant the right to perpetual use.        The Commission considers that this decision was a source of at least a legitimate expectation that the final civil-law contract would be concluded with the applicant.   It is true that under Polish law the right of perpetual use is not equivalent to ownership.   However, under the relevant provisions of the Polish Civil Code, this right confers an entitlement to use land owned by a municipality or by the State for ninety-nine years.   This right, as reflected by its position in the Civil Code, is of a certain hybrid character between ownership and other rights in rem.   It can be sold or bequeathed.   It is further to be noted that in the present case the right at issue represented a considerable pecuniary value as it concerned the plot located in the very heart of the capital city.   The Commission is thus of the opinion that the right to perpetual use as provided for by the Polish Civil Code falls within the ambit of rights protected by Article 1 of Protocol No. 1 (P1-1), and that the applicant should be considered as having had a legitimate expectation that the necessary formal steps would be taken by the municipality to finalise the transaction with her.        The Commission further observes that on 10 October 1994, the date on which Poland ratified Protocol No. 1 to the Convention, the applicant had the final decision in her favour.   It is true that on 29 November 1994 the Mayor of the Warsaw-Centre requested that this decision be declared null and void under Articles 155 and 166 of the Code of Administrative Procedure, which permits the annulment of any final administrative decision at any time.   However, this cannot affect the final character of the decision awarding the right to the applicant.   Thus she should be considered as having had "possession" within the meaning of Article 1 of Protocol No. 1 (P1-1) to the Convention, until the final judgment of the Supreme Administrative Court of 7 July 1995.   This judgment ultimately extinguished the applicant's right. The Commission, accordingly, is of the opinion that this judgment amounted to a deprivation of possessions within the meaning of this provision.        However, the Commission is not required to decide whether or not the facts submitted by the applicant in support of her complaint disclose any appearance of a violation of the Convention as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with a matter after all domestic remedies have been exhausted".        In the present case the applicant had at her disposal, in order to claim compensation, a special procedure provided for in Article 160 of the Code of Administrative Procedure.   This provision enables persons who have sustained a loss as a result of a final administrative decision being declared null and void to submit a compensation claim to the administrative authority which quashed this decision, within three years from the date on which the decision on annulment became final.   An administrative decision in respect of such compensation claim can be appealed against to a civil court.   The applicant has not shown that she instituted administrative proceedings under Article 160 of the Code of Administrative Procedure, seeking compensation for the damage sustained as a result of the quashing of the decision of 11 March 1994.   Against any administrative decision concerning her claim for compensation she could ultimately lodge a compensation claim with a civil court.        It follows that the application must be rejected for non- exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3) 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