CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 juillet 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. 28863/95                     by Aleksandra and Tomasz KOPCZYNSKI                     against Poland          The European Commission of Human Rights (Second Chamber) sitting in private on 1 July 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                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 30 November 1994 by Aleksandra and Tomasz KOPCZYNSKI against Poland and registered on 5 October 1995 under file No. 28863/95;        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 applicants, who are both Polish citizens, are a married couple.   The first applicant, born in 1950, is a technician.   The second applicant, born in 1946, is an engineer.   They reside in Olsztyn, Poland.        The facts of the case, as submitted by the applicants, may be summarised as follows.   Particular circumstances of the case:        On 10 May 1988 the applicants bought three shares in the joint- stock company "Centon".   Subsequently, following a resolution of a general meeting of the shareholders of 23 May 1989 concerning an increase in the share capital, the applicants paid up further shares by way of a contribution in kind (i.e. a piece of real property and their industrial estate situated in Krupoliny).   The value of their contribution was deemed to be equal to 50 % of the new total share capital.   A notarised agreement finally transferring the ownership of the property concerned was made on 30 November 1989 in the Olsztyn Public Notary's Office (Panstwowe Biuro Notarialne).   The same day the company "Centon" was registered as the owner of the property in question in the Olsztyn District Court Real Property Register (S*d Rejonowy Wydzial Ksi*g Wieczystych).   On 15 June 1990 the second applicant was appointed to the board of directors of the company.        Apparently, between December 1991 and April 1992, various entries concerning the issue of shares were made and various resolutions passed by the organs of the company were registered in the Olsztyn District Court Commercial Register (Rejonowy S*d Gospodarczy - Sekcja Rejestrowa) upon motions filed by the managing director of the company "Centon".        Since the applicants considered that those entries had been based either on untrue statements or forged documents, on 6 April 1992 they informed the company that they wished to withdraw their contribution in kind.   On 29 May 1992 the general meeting of shareholders passed a notarised resolution obliging the board of directors to conclude a notarised agreement with the applicants under which the ownership of the property in question would be transferred back to them.   At the same time it obliged the board of directors to prepare a detailed account of the company's claims for expenses incurred in relation to the property.        In the meantime, on 28 May 1992, apparently upon a further motion filed by the managing director of the company, the court registered the resolution of 23 May 1989 relating to the increase in the share capital through the applicants' contribution in kind.   a)    Proceedings relating to the amendment of the entry made in the real property register.        Following the above-mentioned resolution of 29 May 1992, the applicants were involved in negotiations concerning the procedure and deadline for their contribution in kind to be returned.   However, as no satisfactory agreement was reached, on 4 November 1992 they lodged a claim under Section 10 para. 1 of the Law on the Real Property Register and Hypothec with the Olsztyn Regional Court (S*d Wojewódzki), requesting that the entry made in the Olsztyn District Court Real Property Register on 30 November 1989, in accordance with which the company "Centon" was registered as the owner of   the real property and industrial estate in Krupoliny, be amended and the applicants be registered as the owners of this property.        On 24 December 1992 the defendant company filed a pleading in reply to the applicants' statement of claim and requested the court to dismiss the claim as premature.   The applicants responded on 5 February 1993, advancing arguments in support of their claim.   The defendant replied on 5 April 1994.   Between 15 April and 23 June 1993 the parties filed six further pleadings between them and submitted a range of documentary evidence.        In the meantime, on 21 April 1993, the court held a hearing and, at the parties' request, ordered that certain documentary evidence be obtained.   During the hearing the court also heard evidence from the parties.        On 17 November 1993 the Olsztyn Regional Court again heard evidence from the parties and gave judgment dismissing the applicants' claim.        On 21 December 1993 the applicants lodged an appeal against this judgment with the Warsaw Court of Appeal (S*d Apelacyjny).        On 27 April 1994 the defendant filed a pleading in reply to the applicants' appeal.        On 7 July 1994 the Warsaw Court of Appeal dismissed the applicants' appeal.        On 5 September 1994 the applicants requested the Ombudsman to intervene on their behalf, submitting that the courts concerned had committed serious errors of law and fact in their judgments and thus their right to a fair hearing, guaranteed under Article 6 para. 1 of the Convention, had not been respected.   On 17 October 1994 the Ombudsman informed them that he had referred their complaint and supporting documents to the Minister of Justice who would make a decision on whether or not it would be justified to grant them leave to file an extraordinary appeal.        On 18 January 1995 the Minister of Justice refused to grant the applicants leave to file an extraordinary appeal, finding that there was no justifiable basis for the opinion that the contested judgments had been affected by a flagrant breach of law.   b)    Proceedings relating to the amendment of entries made in the Olsztyn District Court Commercial Register.        On 16 June 1993 the applicants lodged an application under Section 21 of the Commercial Code with the Olsztyn District Court. They requested the court to strike various entries made upon the motion of the managing director of the company "Centon" out of the commercial register, claiming that they had been based either on inaccurate information or untrue statements, or that they had been inadmissible in law.   The relevant entries concerned, in particular, the resolution of 23 May 1989 relating to the increase in the company's share capital through the applicants' contribution in kind.        On 8 February 1994 the court held a hearing and heard evidence from the parties.   It apparently decided that no further hearing should be held for the time being.        On 23 January 1995 the applicants complained to the Chief Justice of the Supreme Court (S*d Najwyzszy) about inactivity on the part of the Olsztyn District Court, submitting that the proceedings in their case were lasting for an unreasonably long time even though their claim could have been determined at the first hearing.        On 24 February 1995 the Chief Justice of the Supreme Court notified the Chief Justice of the Olsztyn District Court that the above complaint had been lodged and ordered the court of first instance to take further action in respect of it.        On 23 March 1995 the Olsztyn District Court made a decision granting the applicants' request of 16 June 1993.   c)    Applicants' request for criminal proceedings to be instituted.        On 8 April 1993 the second applicant, apparently acting on behalf of both of them, requested the Olsztyn District Prosecutor (Prokurator Rejonowy) to institute criminal proceedings against the managing director and members of the board of directors of the company "Centon", submitting that they had committed an offence outlawed under Section 482 of the Commercial Code, i.e. that they had acted to the detriment of the company.        On 23 June 1993 the prosecutor discontinued the investigation, finding that no offence had been committed.   On 5 August 1993, upon the applicant's appeal, the Olsztyn Regional Prosecutor (Prokurator Wojewódzki) upheld the decision of the prosecutor at first instance.   d)    Insolvency proceedings.        Between May and November 1995, the applicants were negotiating the return of their property with the board of directors of the company "Centon".   However, as the applicants wished to regain actual possession of their property on the basis of an inventory before any notarised agreement transferring ownership was made, whereas the company's representatives insisted on a notarised agreement being made prior to transfer of actual possession, no settlement was reached.        Subsequently, at the beginning of 1996, the company became insolvent.        On 18 November 1996 the board of directors of the company "Centon" lodged an insolvency petition (wniosek o ogloszenie upadlosci) with the Olsztyn District Court.        On 9 January 1997, the applicants, apparently unaware that an insolvency petition had already been submitted to the court, lodged a petition for the winding-up of the company (wniosek o likwidacj* spólki) with the Olsztyn District Court.        On 13 March 1997 the court declared the company insolvent and assigned a judge-receiver (s*dzia komisarz) and a trustee (syndyk masy upadlosci).   By a letter of 7 April 1997 the trustee informed the applicants that they should take such further steps in the insolvency proceedings as were desirable to protect their interests.        On 19 May 1997 the applicants, in reply to the trustee's letter, submitted a written statement addressed to the judge-receiver and the trustee, requesting them, inter alia, to order that their property be returned to them.   They stressed the fact that, on 23 March 1995, the Olsztyn District Court had struck the entry based on the resolution of 23 May 1989 (according to which their property had become one of the company's assets) out of the commercial register.   As a result, the property in question had ceased to belong to the company and there was no legal basis for it to be used to cover the company's debts.        In the meantime, the applicants negotiated preliminary conditions with the trustee for the return of their property.   Since the company "Centon" had made certain disbursements in relation to the applicants' property, while it was in its possession, the trustee proposed to return the property to the applicants on condition that they reimbursed the disbursements.        As of 15 December 1997 no formal decision relating to the applicants' statement of 19 May 1997 had been taken either by the judge-receiver or by the trustee.        The insolvency proceedings are pending.   Relevant domestic law and practice:   1.    Proceedings relating to the amendment of entries made in a court commercial register.        The Polish Commercial Code, in Sections 6 and 13-25, provides that any limited liability company and joint-stock company is obliged to register itself in the District Court Commercial Register which lists information concerning a given company, its shareholders, organs, type of business activity, amendments to the deed of incorporation, assets, share capital, contributions, mergers etc.     All entries are made on the basis of documents submitted to the register and are open to public inspection. A company must, within a two-week time-limit, notify the relevant court about any circumstance required by law to be entered in the register and it must submit its balance sheet to the court following the first year of its existence.        Decisions of the court are served on the company concerned and other persons affected thereby.   An application for entries to be amended in accordance with the actual facts may be lodged at any time with that court under Section 21 of the Polish Commercial Code, which, insofar as relevant, provides:        "1.   ... where an application is made to rectify or strike an      entry out of the commercial register on the grounds of it being      unjustified, the court may order that an appropriate amendment      be made to the register."        Proceedings instituted under Section 21 of the Commercial Code are limited to an assessment of the question of whether the contested original entries were justified.   In practice, all that is required in order to determine such an application is a verification of the accuracy of the documents submitted to the register; if necessary, the competent court may hear evidence from the parties.   2.    Amendment of entries made in a court real property register.        The Law of 6 July 1982 on the Real Property Register and Hypothec (as amended) provides for compulsory registration of ownership and other rights in rem in a real property register kept by district courts.        Under Section 10 of the Law, if there is any inconsistency between the actual legal status of immovables and the relevant entry in a court real property register, which results in the right of ownership not being entered in the register or being entered incorrectly, the person concerned shall have a claim for amendment of such an entry. The claim shall be examined by a regional court in civil proceedings.   3.    Transfer of ownership of immovables.        The Polish Civil Code requires, in Section 158, that a contract transferring ownership of immovable property must, on pain of nullity, be concluded in the form of a notarised deed.   Such a contract is formed by consent between parties.   4.    Obligation to give consent to a contract.        In cases where a party to a future contract, whether or not one relating to immovable property, is obliged, for whatever reason, to give a "declaration of will" (oswiadczenie woli) (e.g. to manifest his consent to that contract), but has failed to do so, the other party may, under Section 64 of the Civil Code, sue him for a declaratory judgment replacing such consent.        This provision states:        "A final judgment declaring that a given person is obliged to      make a specified declaration of will shall replace such      declaration."   5.    Insolvency proceedings.        The Ordinance of the President of Republic of Poland of 24 October 1934 on Insolvency Law (as amended) sets out the rules governing insolvency proceedings.        Section 1 of the Insolvency Law, insofar as relevant, provides:        "1.   Any business enterprise which is unable to pay its debts      shall be declared insolvent.        ...        3.    Any public enterprise, cooperative ... [or] joint-stock      company shall be declared insolvent if its assets are not      sufficient to cover its liabilities."        According to Section 8 of the Insolvency Law proceedings relating to an insolvency petition shall be instituted before the district court, sitting as a panel of three judges, in whose jurisdiction the debtor has its registered office.        Pursuant to Section 14 of the Insolvency Law, a court making an insolvency order shall call on creditors to submit their claims within a fixed time-limit, assign a so-called "judge-receiver" (who shall conduct the subsequent insolvency proceedings, supervise a trustee's actions and determine in which instances a trustee shall not act without his prior permission) and appoint a trustee (who shall take possession of the insolvent entity's property and, subject to certain prior decisions of the judge-receiver, distribute it among creditors).        According to Section 60 of the Insolvency Law, a trustee alone has the capacity to sue or to be sued in all proceedings concerning claims against an insolvent estate.     COMPLAINTS   1.    The applicants complain under Article 1 of Protocol No. 1 to the Convention that the Olsztyn Public Notary's Office made, on 30 November 1989, a notarised agreement transferring their property to the company "Centon" without the necessary verification of entries made in the Olsztyn District Court Commercial Register.   2.    They also complain under Article 1 of Protocol No. 1 to the Convention that, on 28 May 1992, the Olsztyn District Court Commercial Register made the entry concerning the increase in the share capital of the company "Centon" which was based on untrue statements and was inadmissible in law.   3.    They further complain under Article 6 para. 1 of the Convention about the unfairness of the proceedings relating to the amendment of the entry made in the Olsztyn District Court Real Property Register, submitting that the Olsztyn Regional Court and the Warsaw Court of Appeal committed serious errors of fact and law in their judgments and that they incorrectly assessed the evidence presented.   4.    Under Article 13 of the Convention the applicants complain that the Minister of Justice arbitrarily refused them leave to file an extraordinary appeal to the Supreme Court against the judgments given by the Olsztyn Regional Court and the Warsaw Court of Appeal in the proceedings relating to the amendment of the entries made in the real property register.   5.    The applicants complain under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention that the Olsztyn District Prosecutor failed to institute criminal proceedings against the members of the board of directors of the company "Centon".   6.    Under Article 1 of Protocol No. 1 to the Convention they complain that, regardless of numerous claims submitted by them to the Polish courts, they are still being deprived of their right to recover their property which was unlawfully acquired by the company "Centon".   7.    Lastly, the applicants complain under Article 6 para. 1 of the Convention that the proceedings relating to their application for the entries made in the Olsztyn District Court Commercial Register to be struck out of the register lasted for an unreasonably long time.     THE LAW   1.    The applicants complain under Article 1 of Protocol No. 1 (P1-1) to the Convention that the Olsztyn Public Notary's Office made, on 30 November 1989, a notarised agreement transferring their property to the company "Centon" without the necessary verification of entries made in the Olsztyn District Court Commercial Register.   They also complain under Article 1 of Protocol No. 1 (P1-1) to the Convention that, on 28 May 1992, the Olsztyn District Court Commercial Register made the entry concerning the increase in the share capital of the company "Centon" which was based on untrue statements and was inadmissible in law.        The Commission notes that both events complained of, which took place on 30 November 1989 and 28 May 1992 respectively, occurred prior to 10 October 1994, the date on which Protocol No. 1 to the Convention entered into force with respect to Poland.   The Protocol governs, for each Contracting Party, only events subsequent to its entry into force with respect to that Party.        It follows that this part of the application is inadmissible as being incompatible ratione temporis with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   2.    The applicants further complain under Article 6 para. 1 (Art. 6-1) of the Convention about the unfairness of the proceedings relating to the amendment of the entry made in the Olsztyn District Court Real Property Register, submitting that the Olsztyn Regional Court and the Warsaw Court of Appeal committed serious errors of fact and law in their judgments and that they incorrectly assessed the evidence presented.        Article 6 para. 1 (Art. 6-1), insofar as relevant, provides:        "1.   In the determination of his civil rights and obligations      ... everyone is entitled to a fair ... hearing ... by ... [a]      tribunal established by law."        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 to the Convention.   In particular, it is not competent to deal with an 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 e.g. No. 7987/77, Dec. 13.12.79, D.R. 18, pp. 31, 45; No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).        The Commission further recalls that the admissibility and the assessment of evidence are primarily a matter for regulation by national law.   As a rule, it is for the national courts to assess the evidence before them, whereas it is the Commission's task to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair (see Eur. Court HR, Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10, para. 26).        In the present case the Commission finds no elements which would indicate that the national courts went beyond their discretion as to the assessment of the evidence presented in the course of the proceedings complained of.   Nor does it consider that the applicants were prevented from advancing any arguments which they considered important for the outcome of their case; the number of pleadings submitted by the parties in the proceedings before the court of first instance suggests that they were sufficiently able to put forward their point of view on any questions of law and fact which might have arisen in the civil dispute in question.   Finally, assessing the proceedings as a whole, the Commission finds no indication that they were unfairly conducted in any other way.        It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    Under Article 13 (Art. 13) of the Convention the applicants complain that the Minister of Justice arbitrarily refused them leave to file an extraordinary appeal to the Supreme Court against the judgments given by the Olsztyn Regional Court and the Warsaw Court of Appeal in the proceedings relating to the amendment of the entries made in the real property register.        The Commission, noting that the applicants' complaint also concerns the question of lack of access to the Supreme Court, which by its nature falls within the scope of Article 6 para. 1 (Art. 6-1) of the Convention cited above, has examined their complaint under Article 6 para. 1 and Article 13 (Art. 6-1+13) of the Convention read together.        Article 13 (Art. 13) of the Convention provides:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention embodies the "right to a court" of which the right to access, that is the right to institute proceedings before a court in civil matters, constitutes one aspect (see Eur. Court HR. Aydin v. Turkey judgment of 25 September 1997, Reports of Judgments and Decisions 1997-VI, p. 1894, para. 99).        On the other hand, Article 13 (Art. 13) of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order (see, Aydin v. Turkey judgment, loc. cit.).        In this context the Commission further recalls that neither Article 6 para. 1 (Art. 6-1) nor Article 13 (Art. 13) of the Convention do, however, guarantee the right to appeal or to a second level of jurisdiction, the latter being recognised under Article 2 of Protocol No. 7 (P7-2) only in respect of persons convicted of a criminal offence.   They do not, furthermore, require that there should be several levels of jurisdiction. The Commission refers, in this respect, to its established case-law (see, e.g. Nos. 10153/82, Dec. 13.10.86, D.R. 49, p. 67; 10515/83, Dec. 2.10.84, D.R. 40, p. 258; 12275/86, Dec. 2.7.91, D.R. 70, p. 47; No. 12444/86 Comm. Report, 10.12.91 annexed to Eur. Court HR. Pizzetti v. Italy judgment of 26 February 1993, Series A no. 257, pp. 40-41, para. 41).        In the present case the applicants, who under Polish law were entitled to - and did - lodge an appeal against the judgment given in their case by the court of first instance, complain about the fact that their further extraordinary appeal to the Supreme Court was not allowed and, as a consequence, not examined by that court at the third level of jurisdiction.        However, as the Commission has already observed, since no right to appeal or to several levels of jurisdiction is guaranteed under the Convention, a party to court proceedings cannot claim a Convention right to extraordinary appellate remedies in the highest domestic court against the final judgment given in his case, in particular in addition to the normal appeals already available before the ordinary courts.        It follows that this part of the application is inadmissible as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   4.    The applicants further complain under Articles 6 and 13 (Art. 6, 13) of the Convention, and Article 1 of Protocol No. 1 (P1-1) to the Convention that the Olsztyn District Prosecutor failed to institute criminal proceedings against the members of the board of directors of the company "Centon".        However, the Commission recalls that neither Article 6 (Art. 6) nor any other provision invoked by the applicants guarantees a right to have criminal proceedings instituted against third persons (No. 9777/82, Dec. 14.7.83, D.R. 34, p. 158; Nos. 29692/96 and 34612/97, Dec. 22.10.97, unpublished).        It follows that this part of the application is inadmissible as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   5.    Under Article 1 of Protocol No. 1 (P1-1) to the Convention the applicants also complain that, regardless of numerous claims submitted by them to the Polish courts, they are still being deprived of their right to recover their property which was unlawfully acquired by the company "Centon".        However, the Commission is not required to decide whether or not the facts submitted by the applicants in support of this complaint disclose any appearance of a violation of the Convention as, according to Article 26 (Art. 26) of the Convention, it "may only deal with the matter after all domestic remedies have been exhausted".        In this respect the Commission notes that it is true that the applicants have submitted various claims to the Polish courts, both in relation to the amendment of entries made in the court real property register and to the amendment of entries made in the court commercial register.   Also, since the company which was in possession of their property became insolvent, they requested, on 19 May 1997, the judge- receiver to order that their property be returned to them.        It further notes that, as early as 29 May 1992, a general meeting of the shareholders of the company "Centon" passed a resolution obliging the board of directors to conclude a notarised agreement with the applicants under which the ownership of the real property in question would be transferred back to them.   Accordingly, the company's executive organ was obliged to give a specific "declaration of will" which, in case of its failure to do so, could have been replaced by a judgment given under Section 64 of the Polish Civil Code, if the applicants had sued the company for such a judgment.   Moreover, regardless of the fact that the company concerned had, in the meantime, become insolvent, the trustee appointed in the relevant insolvency proceedings could, and still can, be sued, according to Section 60 of the Insolvency Law, in all proceedings relating to claims against the insolvent estate, including a claim under Section 64 of the Polish Civil Code.        The Commission therefore considers that the applicants still have at their disposal a domestic legal channel enabling them to remedy the situation complained of.        It follows that this part of the application must be rejected for non-exhaustion of domestic remedies according to Article 27 para. 3 (Art. 27-3) of the Convention.   6.    Lastly, the applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention that the proceedings relating to their application for the entries made in the Olsztyn District Court Commercial Register to be struck out of the register lasted for an unreasonably long time.        The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give notice of the complaint to the respondent Government.          For these reasons, the Commission,        DECIDES TO ADJOURN the examination of the applicants'      complaint that the proceedings relating to their      application for entries made in the Olsztyn District Court      Commercial Register to be struck out of the register lasted      for an unreasonably long time;        unanimously,      DECLARES INADMISSIBLE the remainder of the application.          M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber