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Cite as: [2009] ECHR 1150

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FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37727/05
by Mendel WEITZ
against Poland

The European Court of Human Rights (Fourth Section), sitting on 23 June 2009 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,

and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 14 October 2005,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

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

The applicant, Mr Mendel Weitz, is a Polish national who was born in 1924 and lives in Antwerp, Belgium. He is represented before the Court by Mr D. Gałkowski, a lawyer practising in Kraków. The respondent Government are 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.

The applicant is a Polish national. His parents, Frymet and Michał Weitz, bought two properties in Kraków in 1933 and 1934. In 1939 they left Kraków for Lwów, later went to China and finally settled in Great Britain where they lived during the last years of the Second World War. In 1942 the applicant joined the Polish Air Forces under British command in the United Kingdom and was honourably discharged in 1946. Later he lived in Belgium. In 1959 his parents moved to Israel, where they died in 1987. The applicant underlines that he and his parents never relinquished Polish citizenship and used documents issued by the International Refugee Organisation, although they were entitled to obtain Israel citizenship, and the applicant Belgian citizenship, as he was married to a Belgian. He claims that they all wished to return to Poland but were held back by the social and political situation in the country.

After the war the properties were taken over by the Liquidation Office in Kraków as having been abandoned. The owners took legal steps to repossess the property, and on 10 April 1946 and 5 May 1947 the Kraków Magistrates’ Court (Sąd Grodzki) delivered decisions ordering the return of the possession of the properties to the applicant’s parents.

The Kraków Liquidation Office thereupon issued relevant decisions on 4 September 1947 and 4 October 1947 to turn the properties over to the owners. The possession of the properties was taken over on their behalf by their authorised representative Nissan Weitz and later by the applicant’s father, who came to Poland for this purpose in 1947. Subsequently the applicant’s father left the properties under the management of the Kraków Municipal Housing Management (Zarząd Budynków Komunalnych).

In 1959 and 1962 the State Treasury requested the District Court to declare that it had acquired ownership of the property by way of prescription in accordance with the Decree of 1946 on abandoned properties. The court accepted the plaintiff’s submission that the properties had been abandoned within the meaning of this Decree and that the owners were at that time of unknown abode. It appointed a representative for them. Accordingly, the State Treasury became the owner of the property.

In 1990 the land owned by the State Treasury was, in the framework of a countrywide legal reform of local government, transferred to local municipalities.

On 25 August 1997 the applicant’s lawyer asked the National Archives for access to the files of the above proceedings and access was granted on 18 September 1997. On 11 December 1997 the applicant requested that the proceedings concerning the acquisition by prescription terminated by the decisions of 1959 and 1962 be reopened. The applicant argued that these proceedings were invalid in law as they were flawed by serious procedural shortcomings, in particular the fact that the owners had not been properly represented and the court had not taken any steps to establish their address or to verify whether the properties had actually been abandoned within the meaning of the 1946 Decree. The applicant submitted that his parents’ address was indicated in the land and mortgage register of the properties and that they had lived there until 1949 after returning to Poland in 1947. Later, until 1987, a relative of theirs had resided at the same address.

The Municipality filed an alternative motion for a declaration that they had acquired ownership of the property by way of prescription.

On 22 December 1999 the Kraków District Court reopened the impugned proceedings and quashed the decisions of 1959 and 1962. The court considered that it had been impossible for the owners to have their rights properly represented in the proceedings. The District Court established that in those proceedings that court had failed to publish an announcement about the appointment of a representative for the applicant’s parents in their absence, as required by the provisions in force at that time. Further, in both sets of proceedings the lawyer representing the owners of the properties had been appointed at the same hearing at which the final decision had been delivered. Therefore, he had not been able to prepare the case and his representation of the owners’ interests had been illusory. This constituted sufficient grounds for finding the proceedings invalid in law. Moreover, the court considered that in the light of the decisions of the Kraków Magistrates’ Court and the Kraków Liquidation Office of 1946 and 1947 the assertion that both properties had been abandoned was ill-founded, as the applicant’s parents were the officially certified owners and possession of the properties had been officially transferred to them in 1947. Therefore, the State Treasury’s requests of 1959 and 1962 were to be dismissed, the decisions quashed and the proceedings invalidated. Lastly, the court found that the municipality’s claim for a declaration that it had acquired ownership of the properties by way of acquisitive prescription in accordance with existing provisions could not be considered simultaneously and had to be examined in separate proceedings.

Subsequently the Kraków Municipality lodged a request with the Kraków District Court for a declaration that on 1 January 1985 it had acquired ownership of the property by way of prescription. The municipality argued that when the 1959 and 1962 decisions were given, its management of the properties became an autonomous possession cum animo res sibi habendi, which led to an acquisition by prescription after the period of 20 years provided for by law.

The owners’ heirs, among them the applicant, submitted that the social and political situation in Poland had prevented the applicant from coming to Poland earlier. In 1949 his father had asked the Polish Consul to extend the validity of his Polish passport but had only been offered a one-way passport, without the possibility of leaving Poland. Their lawyer in Poland had died in 1950 and they had not known anyone else who could take care of the matter.

On 6 October 2003 the Kraków District Court held that the municipality had acquired ownership of the property by prescription on 1 January 1985. The court established that the applicant had come to Poland in 1994 to file a motion to verify the contents of the land and mortgage register. The court refused to accept the applicant’s argument that the social and political situation in Poland had prevented him from coming to Poland earlier and that this circumstance should have been construed as force majeure, preventing the running of the period of adverse possession by the State. The court refuted the municipality’s assertion that the period of adverse possession had begun to run from the decisions of 1959 and 1962. It considered that the period had begun to run only from 1 January 1965 as provided for by the transitional provisions of the 1964 Civil Code. Therefore, even assuming bad faith on the part of the municipality, they had acquired ownership of the property on 1 January 1985.

The applicant appealed.

On 16 September 2004 the Kraków Regional Court dismissed the appeal. The court pointed out that the District Court, when establishing the facts, had overlooked the decisions of 1946 and 1947 under which possession of the properties had been returned to the applicant’s parents. The properties should therefore not have been regarded as having been abandoned within the meaning of the 1946 Decree on abandoned properties. However, the court fully shared the conclusions and reasoning of the first-instance court in that from the moment the decisions of 1959 and 1962 were delivered, the State’s management of the properties turned into an autonomous possession, and the period of prescription began to run from 1 January 1965 and came to an end on 1 January 1985 at the latest, before the applicant requested to have the proceedings reopened. The Regional Court emphasised that declaring those proceedings invalid could not result in the invalidation of their legal consequences.

On 14 April 2005 the Supreme Court refused to entertain the applicant’s cassation appeal, finding that no serious legal issue arose in the case which would justify the examination of the appeal.

B. Relevant domestic law

Provisions concerning possession

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 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).

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 10 years’ continuous possession as long as this had been in good faith throughout the entire period. Otherwise, a longer period of 20 years applied.

Once these conditions were met, the person in possession could apply to the District Court for a declaration that, as of a specific date, he had acquired ownership of the property.

If the prescription period had begun to run before the entry into force of the Code, according to the transitional measures, the new provisions were to be applied and the term began to run from the date of entry into force of the Code, which was 1 January 1965. Previously applicable provisions had provided for a 30 year period of continuous possession in bad faith.

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 and serves as a kind of instruction for lower courts. When such a resolution is delivered by a chamber of 7 judges, the resolution is considered a general rule of law and should be followed by domestic courts when applying the law.

On 18 November 1992 the Supreme Court delivered a resolution (III CZP 133/92, OSP 1993/7/153) providing as follows:

“The period of holding a property 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 would constitute an abuse of right. It further considered that:

“... a contrary conclusion would be at variance with common sense. The State quashes as null and void a decision upon which the State had unlawfully become the owner of the property, and at the same time the State, nevertheless, claims to be the owner of this property under the provisions on adverse possession; whereas that very null and void decision was the basis for acquiring the property through prescription, since it was as a result of that decision that the State became a possessor.”

On 21 September 1993 a chamber of 7 judges of the Supreme Court delivered a resolution (III CZP 72/93, OSNC 1994/3/49) providing that the period during which the State held a property on the basis of a property title subsequently declared non-existent could not be counted towards the period of adverse possession. The court understood the term “a property title” as every event of legal significance or document which, under the provisions of civil law, might result in the acquisition of a property. Furthermore, the Supreme Court noted that management of property 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).

The case-law of the Supreme Court which developed after this resolution is on the whole in line with the above resolution. For example, 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 as a manager and not as an owner. Most importantly, the resolution of 1993 has not been overturned by another resolution of 7 judges and has been cited by most authors of legal commentaries as the conclusive authority on adverse possession by the State of properties owned by individuals.

While there is general agreement that a defective administrative decision cannot lead to an acquisition by prescription of property by the State, only one judgment reached the same conclusion with regard to the consequences of adverse possession acquired on the strength of a flawed judicial decision.

According to another resolution of the Supreme Court of 25 October 1999 (III CZP 83/96), the State Treasury could acquire ownership of a property by adverse possession, if it possessed it on the strength of a judicial decision later quashed in an extraordinary appeal procedure. The Supreme Court was of the view that, contrary to administrative proceedings, normally the judicial activity of civil courts did not constitute an 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, abusing its public powers and the law to achieve the desired results in the sphere of civil law.

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.

This opinion was further interpreted by the Supreme Court in a decision of 9 May 2003 (V CK 13/03), which stated that it had to be examined in each case whether in the given circumstances a party had the possibility to put right the relevant court decision.

COMPLAINTS

The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 about the judgments given in 2003 and 2004 by which he had been deprived of his ownership and the municipality had acquired ownership by way of prescription on the strength of adverse possession.

He argued that the State Treasury, which was the legal predecessor of the municipality, had obtained the 1959 and 1962 decisions on acquisition by prescription as a result of proceedings which had been flawed with serious procedural deficiencies. In particular, the owner had not been properly represented in those proceedings. Secondly, the courts had entirely disregarded the fact that the properties concerned had at that time been managed by a municipal housing authority on the basis of a contractual arrangement which the applicant had concluded with it in 1947.

The applicant further stressed that these irregularities had been highlighted and criticised by the judgment of the District Court given in 1999. On the basis of the same judgment the 1959 and 1962 decisions had been subsequently quashed. However, despite the defects in the 1959 and 1962 decisions, the courts had been of the view that they had caused the period of prescription to run and had eventually permitted the municipality to acquire ownership of the property.

The applicant also alleged that due to his Jewish origin, political views and patriotism he had been prevented from coming to Poland and taking any legal steps there before 1989. Moreover, the fact that the applicant had been unaware of the proceedings which had led to the State’s acquisition of the title to property had been acknowledged by the District Court in its judgment given in 1999. As a result, the unlawful actions of the State had become legalised by the lapse of time. The courts had erred in regarding the State as the possessor since the date of the invalid decisions and, as a result, had assigned the applicant’s property to the municipality to his detriment.

THE LAW

The applicant complained under Article 1 of Protocol No. 1 to the Convention about the judgments given from 2002 to 2005 by which he had been deprived of his property rights to the benefit of the State. Article 1 of Protocol No. 1 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 applicant further criticised the fairness of the proceedings in his case, relying on Article 6 § 1 of the Convention which provides as relevant:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

1. The Government’s submissions

The Government first argued that Poland had ratified Protocol No. 1 to the Convention on 10 October 1994.

They submitted that, in accordance with established domestic judicial practice, it was obvious that a judicial decision declaring acquisition of ownership on the strength of adverse possession, given at the request of a person in de facto possession of the property, was of a declaratory character. It did not create any new legal situation, but only confirmed that the possessor had acquired ownership in the past, at the moment when the statutory period of adverse possession had come to an end. Hence, the applicant’s predecessors in title had lost their ownership as of 1 January 1985 as established by the courts in the decisions given in 2002 and 2005. These decisions had merely confirmed the status of the State as the owner since that date. In consequence, the application should be declared incompatible ratione temporis with the provisions of the Convention and its Protocols.

The Government further argued that the application was incompatible ratione materiae with the provisions of the Convention, since when the applicant had lodged his application with the Court he had not had either an existing possession or a legitimate expectation of obtaining effective enjoyment of a property right protected by Article 1 of Protocol No. 1.

The Government further stated that the applicant had failed to exhaust the relevant domestic remedies because he had failed to lodge a constitutional complaint with the Constitutional Court. Had the applicant been of the view that it was the application of legal provisions which had given rise to a breach of his rights, not the provisions themselves, he should have requested that court to issue a so-called interpretative decision. Under the case-law of the Constitutional Court, where a well established and homogenous interpretation of a legal provision exists in judicial practice, it is obliged, when examining the constitutionality of that provision, to take into account the meaning conferred on that provision by that interpretation.

As to the merits of the case, the Government averred that in their view there had been no interference with the applicant’s right protected by Article 1 of Protocol No. 1 to the Convention, essentially because he had no possessions. Even if the Court accepted that there had been such an interference, they stated that it had pursued the legitimate aim of clarifying ownership where it had not been exercised for a long period of time. Moreover, a distinction drawn in the domestic case-law between the legal consequences of periods of adverse possession by the State Treasury on the strength of administrative decisions and judicial decisions had been aimed at erasing the legal effects of arbitrary acts of the State carried out when discharging its public functions by way of those decisions. It had been the purpose of the distinction drawn in the resolutions of the Supreme Court to avoid a disproportionate burden being placed on individuals who had in the past been deprived of ownership by the State acting unlawfully or arbitrarily in the exercise of its imperium. In any event, that distinction had by no means had to be applied automatically by the courts. In its resolutions the Supreme Court had unequivocally instructed the courts to carefully examine the circumstances of each individual case and establish periods of adverse possession in a way that took into account the specific circumstances of the case.

They further argued that in the present case the fact that the State had become an autonomous possessor of the property which had formerly belonged to the applicant’s legal predecessors on the strength of judicial decisions given in 1959 and 1964 had not deprived him of the possibility of taking legal steps aiming at the recovery of both possession and ownership. However, between 1947 and 1997, when he had finally lodged his action with the Kraków Regional Court, neither the applicant nor his legal predecessors had shown any interest in the property. In so far as the applicant argued that it had been impossible for him to take any effective steps before 1989, when the communist regime in Poland collapsed, the Government argued that in the domestic proceedings the courts had examined this submission carefully. In particular, the Regional Court, in its judgment of 16 September 2004, observed that the applicant’s argument to that effect was erroneous. The provisions of civil law, in particular Article 123 in conjunction with Article 175 of the Civil Code, in force since 1965, had expressly provided for measures to be taken in order to interrupt the running of the term of adverse possession. It had been possible for the applicant to take such procedural measures either himself or by way of appointing a legal representative residing in Poland. The facts arising in connection with the property in 1946 could not serve as a sufficient substantiation of the applicant’s argument that it had been objectively impossible for him to pursue such measures before 1989.

2. The applicant’s submissions

The applicant submitted that the violation of his rights guaranteed by the Convention had arisen out of a continuing situation. This situation had been created by the decision given in 1959. It subsequently persisted until 2003, when the first judicial decision on the municipality’s claim for acquisition of ownership on the strength of adverse possession had been given, and beyond. Hence, the process by which the applicant was deprived of his ownership, in a manner contrary to Article 1 of Protocol No. 1, had been ongoing both before and after 10 October 1994, when Poland ratified this Protocol. The State continued to derive rights from its unlawful acts carried out before the ratification, and it had been endorsed by the courts.

As regards the question of exhaustion of domestic remedies, the applicant submitted that a constitutional complaint had not been a relevant remedy in his case. The constitutional complaint under Polish law had not been designed to have the Constitutional Court review the way in which legal provisions had been applied by the domestic courts, but only the compatibility with the Constitution of legal provisions themselves. The provisions of the Civil Code the present case concerns had clearly been, as such, compatible with the Constitution.

The applicant disagreed with the Government in so far as they had argued that the application was incompatible ratione materiae with the provisions of the Convention. He had been the legitimate owner of the property as his ownership had been taken away from him on the basis of the manifestly erroneous decision of the domestic court. He submitted that this issue should, in any event, be joined to the merits of the case.

As to the merits of the case, the applicant argued that before 1989 he had only had a theoretical possibility of bringing his case before the Polish courts. The Court should take into consideration the real political and social situation of the country at that time. It was obvious that at that time he could not have obtained a judicial decision in his favour. Moreover, serious doubts existed as to the independence and impartiality of the courts functioning at that time. Furthermore, had the applicant acted exclusively through an appointed legal representative, the fairness of the proceedings would have been seriously compromised. On the whole, the general circumstances at that time should be regarded as force majeure, which under Article 121 of the Civil Code prevented the period of adverse possession from running.

The applicant further argued that the outcome of the present case hinged essentially on the assessment of the manner in which the domestic courts applied domestic law. In particular, it had been the interpretation of the notion of force majeure which had been decisive for the outcome of the case. In this connection he emphasised that after the entry of the Convention and its Protocols into force with respect to Poland the interpretation of the notions of civil law should be compatible not only with the system of the domestic law, but also with the Convention, including the protection of individual ownership which its Protocol No. 1 offered to owners. In the applicant’s case, the interpretation applied by the domestic courts had failed to be Convention-compliant. Consequently, there had been a violation of Article 1 of Protocol No. 1 to the Convention.

3. The Court’s assessment

In so far as the Government claimed that the applicant had failed to lodge a constitutional complaint with the Constitutional Court, the Court observes that the breach of the Convention complained of in the present case cannot be said to have originated from the direct application of a legal provision which the applicant deemed to be unconstitutional. It notes the applicant’s submission that the provisions of the Civil Code governing adverse possession could not be regarded as incompatible with the provisions of the Constitution.

Rather, the applicant asserts that the alleged breach resulted from the way in which the provisions of the Civil Code relating to adverse possession were interpreted and applied in his case. However, it follows from the case law of the Constitutional Court that it lacks jurisdiction to examine the way in which the provisions of domestic law were applied in an individual case (see Szott Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003, and Bobek v. Poland, no. 68761/01, §§ 71-73, 17 July 2007). Accordingly, the Government’s objection as to the exhaustion of domestic remedies must be rejected.

The Court further notes that the Government are of the view that the application is incompatible ratione temporis with the provisions of the Convention and its Protocols. However, even assuming that the facts constitutive of the interference are within its temporal jurisdiction, the Court finds that the application is in any event inadmissible for the reasons set out below.

As regards the nature of the alleged interference, the Court considers that the contested measures amounted in the circumstances to a “control of use” of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis, J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 66, ECHR 2007 ...).

With regard to the aim of the interference, the Court reiterates that a large number of member States possess some form of mechanism for transferring title in accordance with principles similar to adverse possession. Even where title to real estate is registered, it must be open to the legislature to attach more weight to lengthy, unchallenged possession than to the formal fact of registration. The Court has accepted that to extinguish a title where the former owner has not been exercising his ownership for a long period of time cannot be said to be manifestly without reasonable foundation. It was further of the view that it was open to the state, acting in a general interest, to establish in its legal system both a statutory period of adverse possession and the extinguishment of a title at the end of the period (see, mutatis mutandis, J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd, cited above, §§ 72-74).

It remains to be ascertained whether in respect of the alleged interference with the applicant’s possessions a fair balance was struck between the means employed and the aim sought to be realised.

The Court notes that the applicant mainly complains about the manner in which the national courts interpreted and applied domestic law, in particular Article 172 of the Civil Code.

In this respect, the Court reiterates that it is in the first place for the national authorities, and in particular the courts of first instance and appeal, to construe and apply the domestic law (see Pla and Puncernau v. Andorra, no. 69498/01, § 46, ECHR 2004 VIII). The Court’s jurisdiction to verify that domestic law has been correctly interpreted and applied is limited and it is not its function to take the place of the national courts, its role being rather to ensure that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable. This is particularly true when, as in this instance, the case turns upon difficult questions of interpretation of domestic law. The Court reiterates its settled case law that, in accordance with Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I, and Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007 ...).

Furthermore, the Court observes that, even in cases involving private-law relations, the obligations of the State under Article 1 of Protocol No. 1 entail the taking of measures necessary to protect the right of property. In particular, the State is under an obligation to afford the parties to the dispute judicial procedures which offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly in the light of the applicable law (see Anheuser-Busch Inc., cited above, § 83, and Bennich-Zalewski v. Poland, no. 59857/00, § 94 22 April 2008).

In the present case the applicant contests the finding that the State Treasury became the owner of the property on 1 January 1985, twenty years after the Civil Code had entered into force and when twenty years of adverse possession by the State Treasury came to end. That finding, in his view, was flawed since it allowed the State Treasury to acquire ownership and to benefit from its own misconduct in the past in respect of the applicant’s legal predecessor. He also contested the decisions given by the courts from 2003 to 2005 because the courts had refused to accept that the applicant could not, prior to 1989, take any legal steps in order to interrupt the running of the period of adverse possession.

The Court notes in this connection that the factual and legal reasons for the Kraków District Court and the Kraków Regional Court’s decisions granting the municipality’s application for acquisition of the property were set out at length. As regards the character of the State’s possession of the property, the domestic courts explained that it could be validly considered to have been in possession cum animo rem sibi habendi as of 1 January 1965 when the Civil Code had entered into force. The courts relied on the specific transitional provisions of that Code, under which the twenty-year term of prescription in respect of de facto adverse possession which had started prior to that date was to be deemed to have started only on that date.

The domestic courts further relied on the established case law of the Supreme Court (Resolution of 25 October 1999, no. III CZP 83/96). The Supreme Court held that the manner in which the possessor came into possession of the property, including whether he was aware of any unlawfulness on his or her part in that respect, was immaterial for the validity of adverse possession. That circumstance was only relevant for the calculation of the period of adverse possession, the period required from a possessor in bad faith being twenty years (see Borenstein v. Poland (dec.), no. 6303/04).

As regards the issue of good faith, when examining the applicant’s request to reopen the proceedings, the domestic courts complied with his request. They had regard to the circumstances in which the State Treasury had obtained the judicial decisions given in 1959 and 1962. In particular, they observed that in those proceedings the representation of the owner’s interests had been illusory. In consequence, the court held that the proceedings should be invalidated. Later on, in the proceedings concerning the municipality’s new claim for acquisitive prescription, the courts assumed, having regard to these circumstances, that the State had therefore come into possession in bad faith and determined the required period of possession accordingly.

The Court further observes that the courts determined the beginning of the term of adverse possession in a manner most advantageous to the applicant. They held that it had started to run when the Civil Code entered into force, later than the judicial decisions on the State Treasury’s claim for adverse possession had been adopted. In this connection, the Court notes the Government’s argument concerning the different approach of the domestic courts and in particular the Supreme Court to cases in which the State Treasury entered into de facto possession of properties owned by private persons on the basis of judicial and administrative decisions. However, the Court considers that for the purposes of the present case this distinction is irrelevant as this case-law of the domestic courts was not decisive for the determination of the period of adverse possession by the courts examining the applicant’s case.

Moreover, it is noteworthy that those decisions and the subsequent possession of the property by the State Treasury were not challenged by the applicant until the beginning of the 1990s. The applicant has not explained to the Court’s satisfaction why he remained passive over a long period of time and allowed the decisions given in 1959 and 1962 to stand and the State to acquire possession of the property on the strength of those decisions.

In this connection, the Court notes the applicant’s allegation that due to his origin, political views and patriotism he had been prevented from coming to Poland and taking any legal steps before 1989. The Court considers that this submission is closely intertwined with his argument by which he challenges the interpretation of the notion of force majeure by the domestic courts and argues that prior to 1989 he could not have taken any steps in order to vindicate his property rights.

In this connection, the Court acknowledges that difficult legal issues may arise in connection with legal proceedings pursued in order to remedy infringements of the right to the peaceful enjoyment of possessions committed in the past by the communist authorities (Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, ECHR 2005-VI, mutatis mutandis). However, it finds the applicant’s submission that prior to 1989 it was impossible for him to take any steps in order to vindicate his rights unsubstantiated. It further notes that the applicant submitted this argument to the domestic courts. The Kraków District Court examined it and held that the political situation in Poland before 1989 had not prevented the applicant from acting, if necessary by appointing a lawyer to pursue the proceedings on his behalf. It referred to the case-law of the Supreme Court according to which the fact that a former owner lived abroad did not affect the running of the period of adverse possession.

It is not for the Court to embark on any general examination of whether the procedural and substantive provisions of the Polish civil law before Poland ratified the Convention with effect from 1 May 1993 allowed or did not allow for an effective protection of individual property rights in the context of adverse possession by the State Treasury, if only because it lacks temporal jurisdiction for doing so. Its examination of the case is limited to the findings made by the domestic courts after that date. It is sufficient to observe that they based their reasoning on the Civil Code enacted in 1964. That Code contained, and still does, detailed regulations concerning acquisitive prescription. These provisions did not draw any legal distinction between the conditions and consequences of adverse possession of individual properties by the State and by private persons. The domestic courts, when deciding on the applicant’s case, were aware of the existence of that legal framework specifically designed to regulate private-law relations arising out of adverse possession. The Court further notes that it has not been shown or argued that prior to 1989 the applicant or his legal predecessors unsuccessfully tried to have recourse to the relevant procedures to stop the running of that period, or even that the taking of such measures had been contemplated.

As regards the procedural protection of the applicant’s interests, the Court observes that in the proceedings conducted from 1997 until the judgment of the Supreme Court given on 14 April 2005, he had the benefit of adversarial proceedings. The applicant was duly represented during those proceedings and had ample opportunities to advance all arguments which he regarded as pertinent for the outcome of the case.

Having regard to the circumstances of the case seen as a whole, the Court considers that there is no indication that the findings of the domestic courts as to the beginning and running of the period of adverse possession were affected by any element of arbitrariness or that they were otherwise manifestly unreasonable.

The Court further notes that this assessment of the fairness of the impugned proceedings and their outcome is equally dispositive of the applicant’s complaint under Article 6 § 1 of the Convention.

It follows that the applicant’s complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 are manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Lawrence Early Nicolas Bratza
Registrar President