CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 23 mars 2021

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s23A41E03 { width:36pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s51D49AA3 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s514FD9CD { width:41.69pt; display:inline-block } .s152D9498 { width:134.19pt; display:inline-block } .s67CC2216 { width:138.53pt; display:inline-block }     FIRST SECTION DECISION Application no. 36300/15 Wioletta GEJER MISSBACH against Poland   The European Court of Human Rights (First Section), sitting on 23   March 2021 as a Committee composed of:   Erik Wennerström, President,   Krzysztof Wojtyczek,   Ioannis Ktistakis, judges, and Attila Teplán, Acting Deputy Section Registrar, Having regard to the above application lodged on 13 July 2015, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms Wioletta Gejer Missbach, is a Polish national, who was born in 1962 and lives in Stargard Szczeciński. She was represented before the Court by Mr D.   Szulczewski, a lawyer practising in Stargard Szczeciński. 2.     The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. Background of the case 4.     The applicant owns a house in Klępino, which has been occupied since 1991 on the basis of a rent-free contract ( umowa użyczenia ) by E.H. (the applicant’s sister), her husband J.H. and their children (“the tenants”). 5.     On 10 June 2009 the applicant lodged an application for eviction with the Stargard Szczeciński District Court. 6.     On 14 December 2009 the Stargard Szczeciński District Court found against the tenants and ordered them to leave the property. At the same time, due to the tenants’ difficult financial situation, the District Court granted them the right to be provided with social accommodation by the Stargard Szczeciński Municipality and suspended the order to leave the property until the municipality had provided them with such housing. On 8   February 2010 the court gave a supplementary judgment in the same terms but concerning one of the tenants’ children. Both judgments became final on 2   March 2010. 7.     The parties did not appeal against these judgments. 8.     According to the information available to the Court, the tenants have stayed in the applicant’s property since then and the Stargard Szczeciński Municipality has not offered them any social accommodation. Civil proceedings for compensation 9.     On 22 July 2010 the applicant brought a claim for payment against the tenants and the Stargard Szczeciński Municipality. She relied on section   18   (2), (3) and (5) of the Act on the Protection of the Rights of Tenants, Municipal Housing Resources and on Amendments to the Civil Code of 21   June 2001 ( Ustawa o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego – “the 2001 Act”). 10.     On 29 July 2010 the Stargard Szczeciński District Court issued a payment order ( nakaz zapłaty ) of 7,000 Polish zlotys (PLN) (approximately 1,750   euros (EUR)) against the tenants and the Stargard Szczeciński Municipality in accelerated proceedings. The court ordered that the sum in question be paid jointly and severably ( solidarnie ) by the tenants and the Stargard Szczeciński Municipality. 11.     Only the Stargard Szczeciński Municipality filed an objection. The payment order became final with respect to the tenants. 12.     On 23 November 2011 the Stargard Szczeciński District Court granted the applicant’s claim. It ordered the Stargard Szczeciński Municipality to pay the applicant PLN 2,165 (approximately EUR   541) in compensation. The court made a reservation that if the other defendants paid the compensation, the Stargard Szczeciński Municipality would be exempted. Relying on an expert opinion the court established that the monthly amount which should have been paid for the occupation of the property in question amounted to PLN 490 (approximately EUR   120) starting from 2 March 2010 (the date on which the judgment ordering the tenants to vacate the premises had become final). 13.     The parties did not appeal against this judgment. Settlement with the Stargard Szczeciński Municipality 14.     On 31 August 2012 the applicant and the Stargard Szczeciński Municipality concluded a settlement relating to the fact that the tenants had not vacated the property in question. The Municipality undertook to pay the applicant the sum of PLN 10,290 (approximately EUR 2,570) to compensate for the period between 14 July 2010 and 30   April   2012 when it had not provided the tenants with social accommodation. Moreover, it undertook to pay the applicant PLN 440 (approximately EUR   110) monthly, as from 1 May 2012 until it provided the tenants with social accommodation as specified in the judgment of the Stargrad Szczeciński District Court of 14   December 2009. Proceedings concerning the tenants’ right to social housing 15.     On 8 May 2013 the applicant brought a claim against the tenants and the Stargard Szczeciński Municipality in order to establish that the tenants had no right to social housing and that the municipality was no longer obliged to provide it for them. 16.     On 12 August 2014 the Stargard Szczeciński District Court rejected the applicant’s claim as the social accommodation question had already been determined. The court held that the claim had concerned the same factual and legal circumstances as determined in the judgment of 14   December 2009 (see paragraph 6 above). It further noted that the applicant should have exhausted the available remedies and should have appealed against that judgment instead of lodging a new claim. The court relied in its reasoning on the Supreme Court’s case law. 17.     The applicant lodged an interlocutory appeal. She submitted that the tenants’ financial situation had improved since the final decision of 14   December 2009. 18.     On 29 December 2014 the Szczecin Regional Court dismissed the applicant’s interlocutory appeal. The court found that the right to receive social accommodation had been granted in a final judicial decision. In addition, the court held that the applicant could bring a fresh compensation claim against Stargard Szczeciński Municipality under section 18(5) of the 2001 Act if she was not satisfied with the provisions of the settlement of 31   August 2012. 19.     The decision was served on the applicant’s lawyer on 15   January 2015. Relevant domestic law 20.     Section 18 of the Act on the Protection of the Rights of Tenants, Municipal Housing Resources and on Amendments to the Civil Code of 21   June 2001 ( Ustawa o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego ) provides, in so far as relevant, as follows: “1.     Persons occupying an apartment without legal title must pay compensation for each month until they vacate the apartment. 2.     Subject to subsection 3, such compensation shall be equal to the amount of rent the owner could obtain if the apartment was rented out [...]. 3.     Where people are entitled to social accommodation and a court has decided to suspend their obligation to leave an apartment until they have been offered social accommodation, they shall pay compensation equal to the amount of rent or other fees for using the apartment which they would pay if the legal relationship still existed. 4.     [repealed] 5.     If a municipality fails to provide social accommodation to a person entitled to it under a final court judgment, the owner [of an apartment] has the right to claim compensation from the municipality, on the basis of Article   417 of the Civil Code.” COMPLAINT 21.     The applicant complained under Article 1 of Protocol No. 1 to the Convention of a violation of her right to the peaceful enjoyment of her possessions. THE LAW 22.     The applicant complained of a breach of her right to the peaceful enjoyment of her possessions. She invoked Article 1 of Protocol No.   1 to the Convention, which reads as follows: “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 parties’ submissions 23.     The Government made a number of preliminary objections to the admissibility of the application. They pleaded abuse of the right of petition on account of the fact that the applicant had failed to inform the Court about the settlement reached with the Stargard Szczeciński Municipality. They further submitted that the applicant was no longer a victim of the alleged violation since she had received appropriate compensation according to the terms of the settlement with the Stargard Szczeciński Municipality. 24.     The applicant disagreed with the Government’s submissions. She stressed that the gist of her complaint was not the fact that she had not received compensation, but rather that she could not use her property, as she could not change the court’s decision awarding a right to social housing to the tenants occupying her property. The Court’s assessment 25.     The Court finds it unnecessary to deal in detail with each and every objection raised by the Government since it considers that the application should in any event be rejected for the following reasons. 26.     The Court reiterates that Article 1 of Protocol No.   1 guarantees in substance the right of property. Any interference with that right must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (for a recapitulation of the relevant principles see, for example, Beyeler v.   Italy [GC], no.   33202/96, §§ 108-114, ECHR 2000 ‑ I, and Hutten ‑ Czapska v.   Poland [GC], no.   35014/97, §§   162-168, ECHR 2006 ‑ VIII). 27.     Turning to the circumstances of the present case the Court observes that the judgments ordering the applicant’s tenants to vacate her flat became final on 2 March 2010. It is true that the eviction could only be carried out when the tenants had been allocated social housing by the municipality (see paragraph   6 above). However, the Court observes that on 31   August 2012 the applicant and the Stargard Sczeciński Municipality signed a settlement agreement whereby the Municipality undertook to pay to the applicant a lump sum of PLN   10,290 and a further monthly sum of PLN 440 in order to compensate the fact, that it had failed to provide the tenants with social accommodation (see paragraph 14 above). 28.     The amount of compensation was established pursuant to the Stargard Szczeciński District Court’s judgment of 23 November 2011 and based on an expert’s report. This judgment was not contested by the applicant (see paragraph 13 above). In view of the above, the Court considers that the compensation awarded to the applicant was proportionate to the degree of interference with her property rights. 29.     Furthermore, in so far as the applicant specifically complained that the tenants had no right to social housing and that the municipality was no longer obliged to provide it to them, the Court observes firstly that the applicant had failed to appeal against the judgments of 14   December 2009 (see paragraph 7 above). Secondly, in its judgment of 29   December 2014 the Szczecin Regional Court clearly pointed out to the applicant that she was entitled to seek further compensation under section 18(5) of the 2001 Act from the municipality (see paragraph 18 above).     However, the applicant did not use that remedy and instead lodged an application directly with the Court. 30.     The Court has already examined the remedy under section 18(5) of the 2001 Act and found it effective in that it had enabled landlords to obtain compensation for losses incurred owing to the municipal authorities’ failure to provide social housing to tenants (see Wasiewska v.   Poland (dec.), no.   9873/11, § 31, 2 December 2014, and Strzelecka v.   Poland (dec.), no.   14217/10, § 44, 2 December 2014 Kołpaczewska v.   Poland (dec.), no.   10872/11, 6 December 2016). Accordingly, this part of the application is inadmissible due to non-exhaustion of domestic remedies. 31.     Having regard to the foregoing, the Court does not find it established that in the present case there has been an interference with the applicant’s property rights. 32.     It follows that the application is manifestly ill ‑ founded as a whole and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 22 April 2021.   Attila Teplán   Erik Wennerström Acting Deputy Registrar   President