CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 7 avril 2009

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The respondent Government were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. Between 25 August 1993 and 31 December 1993 the applicant concluded with the State Treasury’s Agricultural Property Agency ( the Agency ) contracts of lease concerning nine farms and on 14 January 1994 a contract permitting use of another farm. The total land in his possession amounted to over 6,500 ha. On 13 March 1995 the Agency terminated all contracts with the applicant without notice, on the grounds of his alleged failure to pay the rent for one year. The stocktaking was to take place on the following day. The information about the termination of the contracts and the date of the stocktaking was served on the applicant’s authorised representative. On 14   March 1995 the Agency officials took over the property, in the presence of the applicant’s representative, and the applicant was immediately evicted from all the farms. He was not present. 1.     The proceedings for repossession On 17 June 1995 the applicant lodged a claim for repossession of the farms against the Agency. He claimed that his right to the peaceful enjoyment of possessions had been infringed because of an unlawful and hasty eviction. It was disputed by the parties whether the authorised representative had informed the applicant about the fact and date of taking over the property by the Agency and whether the applicant had consented to it. The amount of the rent in arrears was also in dispute. On 14 March 2002 the Stargard District Court dismissed the claim. The court referred to Article 344 of the Civil Code. The District Court established that the authorised representative, having informed the applicant by phone about the stocktaking and the impending eviction and with the applicant’s consent, had allowed the Agency officials to proceed with the taking over of the property. The applicant had allegedly confirmed his consent in writing. The representative had been empowered to carry out a wide range of legal and factual acts on the applicant’s behalf. Therefore, the District Court concluded that the interference had not been unlawful, as the applicant had been aware of and consented to all the actions of the Agency officials. The District Court further established that the applicant had not fulfilled properly his obligations arising from the lease contracts and at the material time had had serious financial problems. Moreover, at the time of the court’s judgment the applicant had not been working, lived on a small pension and all his immovable property had been seized by creditors. Therefore, the court considered that if it had made the repossession order in respect of the farms concerned, such an order would be in contradiction to Article 5 of the Civil Code. This provision stipulated that no one could exercise his or her right in a manner, which would contradict its “socioeconomic purpose” or the “principles of community life”. In his present financial condition the applicant could not ensure the proper management of the agricultural property of such a considerable size and value. Also, at the time of the judgment, the Agency was no longer in possession of the property previously leased by the applicant, as some farms had meanwhile been leased to other persons and some had been sold. The applicant appealed. On 20 September 2002 the Szczecin Regional Court dismissed the appeal. However, the court emphasised serious shortcomings committed by the lower court in the assessment of the evidence. The court found that the evidence in the possession of the District Court “absolutely” did not justify a conclusion that the applicant had been aware of and had consented to the stocktaking of the property in question and to his eviction. The testimony of the authorised representative could not have reasonably led to such a conclusion. He had clearly testified that he had only spoken to a secretary, not to the applicant himself, and informed her that the applicant should come to the farm, without explaining the reason. Thus, the applicant could not have given his consent during the alleged phone conversation. Further, there was nothing in the applicant’s letter relied on by the lower court that would indicate his written consent to the stocktaking and eviction. Moreover, the scope of the power of attorney given to the representative did not authorise him to give the farms away. The infringement of the applicant’s possession was, therefore, unlawful and violated Article 342 of the Civil Code. Nonetheless, the court dismissed the appeal, as it agreed with the final conclusion of the District Court’s judgment regarding the application of Article 5 of the Civil Code. Restoring de facto possession of the property to the applicant at that time would have been, according to the court, contradictory to the “socioeconomic purpose” of the applicant’s right. It would also breach the so-called “principles of community life”. The applicant was in a difficult financial situation and the farms had already long been in the possession of various third parties to whom the Agency had either sold or leased them. Hence, after almost eights years that had passed since the infringement of the applicant’s possession, the legal and factual circumstances of the case had changed significantly. Consequently, a repossession order would have led to an infringement of third persons’ property rights. For these reasons, and regardless of the infringement of the applicant’s rights as a result of his eviction in March 1995, his repossession claim had to be dismissed. The length of the proceedings and reasons for which they had taken so long were of no importance at this point. No cassation appeal was available. 2.     The proceedings for compensation The applicant instituted several civil proceedings against the Agency. Most of them were unsuccessful (for example, the courts found some of his claims time-barred). In 2003 the applicant lodged a compensation claim against the Agency for damages resulting from unlawful termination of lease contracts. On 30 May 2008 the Warsaw Regional Court delivered a judgment awarding the applicant 30,090,000 PLN (approx. 8,905,528 EUR at the relevant time). The court found that the termination of the lease contracts had not been justified by the circumstances and had not been carried out in accordance with the relevant law. Consequently, the applicant had sustained loss, equal to the average profit from an agricultural farm during the period for which the contracts had been concluded. The Agency appealed. The appeal proceedings are pending. No hearing has been scheduled yet. B.     Relevant domestic law and practice Provisions concerning possession and restoration claim. The Polish Civil Code, Book Two entitled Ownership and Other Property Rights , provides for various property-like rights for a possessor in Title IV: Possession . The relevant Articles read, as far as relevant: Article   336: The possessor of property is both the person who actually controls the property as an owner (an autonomous possessor) and the person who actually controls the property as a usufructuary, the holder of a lien, a lessee, or a tenant or who has other rights associated with certain control over another person’s property (a dependent possessor). Article 342: Possession shall not be wilfully infringed even if the possessor acted in bad faith. Article 344: § 1. The possessor can claim the restoration of the previous state [repossession of the property] and abstention from infringements against the person who wilfully infringed possession as well as against the person who benefited from the infringement occurred. That claim shall not be dependent upon the good faith of the possessor not upon the compliance of possession with the law ... § 2. The [repossession] claim shall expire if not pursued within one year from the date of infringement. One of the introductory provisions of the Polish Civil Code, Article 5, reads as follows: A person may not exercise his or her right in a manner which would contradict its socioeconomic purpose ( społeczno-gospodarcze przeznaczenie prawa ) or the principles of community life ( zasady współżycia społecznego ). Such act or omission on the part of the person entitled shall not be considered as the exercise of that right and shall not be protected by law. COMPLAINTS The applicant complained under Article 1 of Protocol No. 1 to the Convention that the State Treasury’s Agricultural Property Agency had unlawfully deprived him of his possessions by evicting him from the farms he had been leasing, while the judgments delivered in the repossession proceedings countenanced the Agency’s unlawful actions. THE LAW The applicant complained under Article 1 of Protocol No. 1 to the Convention about being unlawfully deprived of his possessions by the State Treasury’s Agricultural Property Agency. He maintained that he had suffered significant loss due to, inter alia , considerable financial contributions he had invested in order to modernise the farms. The Government maintained, inter alia , that the applicant had not exhausted domestic remedies in respect of his complaint, since the relevant compensation proceedings were still pending. The applicant argued that the repossession proceedings he had instituted in 1995 seemed the most appropriate remedy at that time and should not have lasted eight years. As to the other proceedings, which were pending at the time of submitting the observations, the applicant observed that the Government had failed to submit examples of successful judgments in similar cases. The Court notes that the applicant mainly complains about the fact that he was unlawfully deprived of his property rights and without any compensation. It is however observed that the compensation proceedings described above at 2) proved successful at first instance, providing redress for the applicant’s complaints; however, the judgment is not final and the proceedings are still pending before the Court of Appeal. The Court reiterates that under Article   35 § 1 of the Convention the domestic authorities should be afforded the opportunity of preventing or putting right the alleged violation (see Cardot v. France , judgment of 19   March 1991, Series A no. 200, p. 19, § 36). Accordingly, this complaint is premature. The Court notes that, after the final ruling is given in the case, it would be open to the applicant to re-submit his complaint to the Court if he still considered himself a victim of any alleged violation. In view of the above, the application should be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4   of the Convention. For these reasons, the Court unanimously Declares the remainder of the application inadmissible.   Lawrence Early   Nicolas Bratza   Registrar   President