CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 mai 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 17 May 2016   FOURTH SECTION Application no 4881/11 Mirosława Krystyna CHRZANOWSKA against Poland lodged on 17 January 2011 STATEMENT OF FACTS The applicant, Ms Mirosława Krystyna Chrzanowska, is a Polish national, who was born in 1955 and lives in Łódź. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. In 1944 the applicant’s father received, under the 1944 Agrarian Reform Decree, a plot of land measuring approximately 7 hectares in the vicinity of Łódź. In 1970 the Łódź County Court ( Sąd Powiatowy ) held that ownership of the land had been transferred to the State Treasury as her father had failed to pay his taxes, and the amount of the unpaid taxes exceeded the value of the land. In 1994 the applicant, who had always lived in the house situated on the land concerned, requested that the proceedings terminated by the 1970 decision be re-opened. She submitted that neither her sister, S.B., nor her father had ever been informed of those proceedings. In 1997 the Łódź District Court re-opened the proceedings on the ground that the authorities had failed to inform the applicant’s father of them at the material time. On 8 July 1998 the Łódź District Court held that the 1970 decision was null and void. It found that neither the applicant’s father nor her siblings, who had inherited their mother’s part after she had died in 1963, had ever been informed of the proceedings. It was noted, in passing, that the State Treasury had never requested to be listed as the owner in the relevant land register. As a result, ownership of the land, covering nearly 7 hectares and situated within the administrative boundary of Łódź, was vested with the applicant and her five siblings. Subsequently, in 1999 the applicant and her siblings were listed as owners in the relevant land register run by the local court. Six years later, on 30 April 2004, the Łódź Municipality instituted proceedings before the Łódź-Widzew District Court against the co ‑ owners of the property, claiming that it had acquired ownership of the property by way of adverse possession. On 3 December 2004 the court dismissed the municipality’s action. The municipality appealed. On 16 February 2005 the Łódź Regional Court set the contested decision aside and remitted the case. It was of the view that the State Treasury (later replaced by the municipality) had been in possession of the property, having exercised its dominium within the meaning of civil law (as opposed to imperium , namely its sovereign prerogative), given that its possession had originated in the 1970 decision given by a civil court (see paragraph 3 above). The court relied on the Supreme Court’s Resolution No. III CZP 83/96 of 25 October 1996 (published in OSNC 1997/5/47), in which the Supreme Court had held, inter alia , that “the State Treasury may count towards the period of adverse possession, within the meaning of Article 172 [of the Civil Code], the period of occupation ‘like a property owner’ on the basis of a court judgment which was [subsequently] quashed   ... after the period of adverse possession had elapsed.” (see paragraph   28 below). On 12 December 2005 the Łódź-Widzew District Court again dismissed the municipality’s action. The municipality appealed. On 11 May 2006 the Łodź Regional Court again allowed the appeal and remitted the case on the ground that the first ‑ instance court had failed to take heed of the Supreme Court’s resolution referred to above. By a judgment of 20 February 2009 the Łódź-Widzew District Court allowed the municipality’s request. It declared that the State Treasury had acquired ownership of the property concerned by way of adverse possession on 11 June 1980. The court found that after the 1970 decision the applicant’s father had continued to work the impugned land. The State Treasury had never intervened. The applicant had continued to live in the house situated on the land. In 1978, after her father had fallen ill and had no longer been able to work the land, part of the land had started to be used as allotments ( ogródki działkowe ). In 1992 the applicant’s father had died and the applicant and her siblings had become his legal heirs. Since 1999 they had been listed in the land register as owners of the property, which consisted of almost 7 hectares used as allotments and the house where the applicant continued to live. The court was of the view that the State Treasury had been in possession of the property cum animo res sibi habendi and in good faith since the 1970 decision. The fact that the applicant’s father had been using the land at least until 1978 did not detract from the State Treasury’s status of possessor of the land. The court relied on the Supreme Court’s resolution referred to above and stressed that the 1970 judicial decision conferred on it the status of possessor in good faith. It was from that date that the ten ‑ year period of adverse possession applicable in the circumstances of the case had been running until 1998 when that decision had been set aside. The applicant and her siblings appealed. On 1 October 2009 the Łódź Regional Court dismissed their appeal. It amended the date on which the State Treasury had acquired ownership of the land. It considered that the 1970 judicial decision had given rise to good faith on the part of the State Treasury in the exercise of its civil dominium . The resolution of the Supreme Court of 21 September 1993 (No. III CZP 72/93, OSNCP 1994/3/49) under which periods of de facto possession originating in administrative decisions giving rise to acquisition, in the exercise of imperium, was not applicable in the circumstances. The fact that in 1998 the 1970 decision had been declared null and void did not affect either the existence of the de facto possession or the State’s good faith, based on the latter decision. For the assessment of good or bad faith, the situation at the time of acquisition was decisive, rather than any subsequent changes that could affect the possessor’s stance as to the legal status of the land or the character of his or her possession. The State could be held to possess the land as from 1978 when the applicant’s father had ceased to use it for agricultural purposes. The ten-year period of de facto possession by the State applicable under the provisions of adverse possession applicable at that time had therefore expired in 1988. On 22 October 2010 the Supreme Court refused to entertain a cassation appeal lodged by the applicant and her siblings. It held that no significant legal issue had arisen in the case, in particular since on 26   October 2007 it had given a resolution on issues involved in it (No. III CZP 30/07, OSNC   2008/5/43) and held that the State Treasury could be regarded as the de facto possessor within the meaning of the provisions on adverse possession where its possession was based on a decision given in the exercise of the State’s dominium . B.     Relevant domestic law and practice 1.     Provisions concerning possession Book Two of the Polish Civil Code, entitled “Ownership and Other Property Rights”, provides for various property rights under Title IV: Possession . The relevant Article reads: Article   336: “The possessor of property is both the person who actually controls [holds] 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 a certain control over another person’s property (a   dependent possessor).” 2.     Provisions concerning acquisition by prescription Acquisition by prescription is regulated by Article 172 of the Civil Code. At the relevant time it provided that a person could acquire ownership of land after ten years’ continuous possession, as long as this had been in good faith throughout the entire period. Otherwise, a longer period of twenty years applied. If those conditions were met, the person in possession could apply to the District Court for a declaratory judgment to the effect that, as of a date on which the period of adverse possession prescribed by law had expired, he or she had acquired ownership of the property. 3.     Case-law of the Supreme Court on adverse possession by the State Under Polish law, judgments of the Supreme Court are not directly binding on the courts. However, the Supreme Court may deliver a resolution, which aims to interpret the provisions of law. When such a resolution is delivered by a chamber of seven judges, the resolution is binding for the compositions of the Supreme Court if the composition so decides. On 18 November 1992 the Supreme Court delivered a resolution (No. III CZP 133/92, OSP 1993/7/153) providing as follows: “The period in which a property was held on the strength of an administrative decision which was later declared null and void because it was delivered in flagrant breach of the law cannot be counted by the State Treasury towards the period of acquisition by prescription.” The court found that acquisition of property on the basis of an unlawful action of a public authority would constitute an abuse of rights. It further considered that: “... a contrary conclusion would be at variance with common sense. The State declares null and void a decision upon which it unlawfully became the owner of the property, and at the same time claims to be the owner of that property under the provisions on adverse possession; whereas that very annulled decision was the basis for acquiring the property through prescription, since it was as a result of that decision that the State became the owner.” On 21 September 1993 a chamber of seven judges of the Supreme Court delivered a resolution (No. III CZP 72/93, OSNC 1994/3/49) providing that the period during which the State had held a property on the basis of a property title which had subsequently been declared null and void could not be counted towards the period of adverse possession. The court understood the term “property title” as every event of legal significance or document which, under the provisions of civil law, might result in the acquisition of property. Furthermore, the Supreme Court noted that management of property ( zarząd ) was not equivalent to autonomous possession within the meaning of the provisions on adverse possession. If the State held a property as a consequence of its public functions, it managed the property in the public-law sense of the term, and did not “possess” it within the meaning of the Civil Code. Therefore, the period of management could not be counted towards the period of adverse possession, which had to be based on autonomous possession and not on any other way of holding the property (for example, dependent possession). On 25   June 2003 the Supreme Court issued a decision (SN III CZP 35/03) finding that de facto control of an abandoned property by the State could not be regarded as possession cum animo rem sibi habendi, as until the time the State acquired ownership of the property it acted merely as a manager and not as an owner. According to another resolution of the Supreme Court of 25   October 1996 (No. III CZP 83/96), the State Treasury could acquire ownership of a property by way of adverse possession based on a judicial decision that was subsequently quashed in an extraordinary appeal procedure. The Supreme Court was of the view that, contrary to administrative proceedings, the judicial activity of civil courts did not normally constitute exercise of the State’s public powers. However, the historical circumstances in which property had been expropriated by the State after the Second World War had to be taken into consideration. In this context, it could not be excluded that judicial decisions resulting in the State acquiring ownership of private properties involved special circumstances brought about by the State’s abusing its public powers and the law to achieve the desired results in the sphere of civil law and to dispossess individuals. Hence, each case had to be examined individually to establish whether the legally unjustified interference of the State was such that it made it practically impossible for a party to challenge the State’s will using the normal protection measures provided for by civil law. COMPLAINTS The applicant complained, under Article 1 of Protocol No. 1 to the Convention, that as a result of the decisions given in the adverse possession cases instituted against her by the public authorities, she had ultimately been deprived of ownership of the property, which she had previously acquired having challenged the unlawful expropriation decisions given during the communist era. QUESTIONS TO THE PARTIES 1.     Is the application compatible ratione temporis with the provisions of the Convention?   2.     Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol   No.   1? In particular, does the present case concern existing possessions within the meaning of this provision?   3.     Has the applicant been deprived of her possessions in the public interest and in accordance with the conditions provided for by law on account of the judicial decisions given in the proceedings concerning the Łódź municipality’s claim for acquisition of ownership of the property situated in Łódź by way of adverse possession?