AS TO THE ADMISSIBILITY OF
by Sergiusz CYWONIUK
The European Court of Human Rights (Fourth Section), sitting on 15 December 2009 as a Chamber composed of:
Nicolas Bratza, President,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 18 November 2002,
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 applicant, Mr Sergiusz Cywoniuk, is a Polish national who was born in 1941 and lives in Warsaw. He was represented before the Court by Ms N. Ołowska-Zalewska, a lawyer practising in Warsaw. The Polish Government (“the 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.
The applicant is a retired professional soldier. In 1979 the Military Housing Agency (Wojskowa Agencja Mieszkaniowa) decided to allocate him military accommodation (kwatera) in Białystok. The lease was signed by the applicant, but his wife and three children had the right to live in the flat.
In 1998 the applicant moved out from the flat and started divorce proceedings. It appears that his wife changed the locks in the flat and continued to occupy it with one of their children.
On 16 June 2000 the couple divorced. Afterwards, the applicant officially changed his registered address (wymeldowanie) and moved to Warsaw.
In 2002 the applicant remarried.
On 14 February 2002 the applicant gave notice to the Agency informing it that he wished to terminate the lease.
His former wife and son continued to live in the disputed flat. They refused to leave it and the applicant’s former wife stopped paying the rent. It appears that subsequently the Agency instituted enforcement proceedings against the applicant. Given the debt accumulated by the applicant’s former wife, after she had stopped paying the rent, the Agency attempted to allocate a smaller flat to the applicant so he would vacate the accommodation. However, the applicant’s former wife refused to leave the flat and the decision ordering the occupants to leave the flat was stayed on 17 March 2004.
On several occasions the applicant complained to the Military Housing Agency and he received replies on 29 August 2001, 19 February 2002 and 17 February 2003. In each of those letters the Agency referred to section 28 of the Armed Forces of the Republic of Poland Accommodation Act of 22 June 1995 (Ustawa z dnia 22 czerwca 1995 o zakwaterowaniu Sił Zbrojnych RP) (“the Armed Forces Accommodation Act”) and informed the applicant that the Agency was not competent to terminate the lease of the flat in question.
On 26 September 2001 the applicant received a letter from the Ombudsman. In his extensive reply the Ombudsman stated that the legal situation of divorced spouses who occupied military accommodation together was governed by section 28 of the Armed Forces Accommodation Act. This section provided that in case of divorce the former spouses could still live in the accommodation, with the exception of accommodation located in the buildings specified in Article 55(2)(1-3). The Ombudsman then stated:
“If the military accommodation occupied by the divorced spouses belongs to one of the [categories listed in section 55(2)(1-3)], it is possible to terminate their lease (rozkwaterowac) under section 28(2) of the Armed Forces Accommodation Act. However, in cases outside [the above categories] the divorced spouses cannot, under the rules, seek to terminate the lease....
In the above-cited law there is no provision for the removal of a troublesome divorced spouse. In particular, in the cases examined above, there are no provisions that would authorise the Agency to issue an administrative decision terminating a lease. There is also no legal ground for requesting the eviction of a former spouse from the flat they occupied together....
In the Ombudsman’s opinion such a situation, in which the legislator has excluded a certain group of citizens from the judicial system by not granting them active procedural rights (czynna legitymacja procesowa), infringes the constitutional right of access to a court (Article 45 § 1 of the Constitution of the Republic of Poland) and the right to a fair trial guaranteed by the [Convention] (Article 6 § 1)..”
The Ombudsman further informed the applicant that, according to the Supreme Court’s resolution of 28 June 2000, section 33(3) of the Law of 2 July 1994 on the Lease of Dwellings and Housing Allowances (Ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych), (“the 1994 Act”) applied to the eviction of a divorced spouse from military accommodation. The Ombudsman stated as follows:
“The particular regulation of the situation of the spouse of a professional soldier, similarly to that of a lease in civil law, is such that his or her entitlement does not terminate with the divorce. It means that the loss of this entitlement [to use the military accommodation granted to the professional soldier] can occur only under section 33(3) of [1994 Act]. Under this provision, a tenant may institute proceedings for eviction of a divorced spouse if his or her excessively reprehensible behaviour (rażąco naganne zachowanie) makes cohabitation impossible... It is for a court examining a particular claim for eviction to interpret this provision ...”
Apparently in 2002 the applicant instituted civil proceedings against his former wife in which he sought reimbursement of the rent she had failed to pay since 1998 but which had been deducted from his old-age pension. It is not clear what transpired in those proceedings.
On 24 June 2003 the Agency allocated to the applicant a smaller flat and requested him to vacate the military accommodation which his former wife had been occupying. The applicant’s wife appealed against the decision. It was finally upheld by the Supreme Administrative Court on 8 May 2007.
In August 2007 the applicant’s former wife paid the Agency the debt for the rent for the flat she had been occupying.
On 12 December 2007 the Agency evicted the applicant’s wife and their son from the flat in question. Apparently the eviction was carried out under sections 44 and 45 of the New Armed Forces Accommodation Act. The flat has been vacated. Subsequently, the Agency offered the applicant a substitute flat. However it appears that to date he has not accepted one.
B. Relevant domestic law and practice
Section 28 of the Armed Forces Accommodation Act provides:
“1. In the event of divorce, spouses living in military accommodation can continue living in the accommodation, with the exception of accommodation in the buildings described in section 55(2)(1-3).
2. When the accommodation occupied is in a building as described in section 55(2)(1-3):
(1) the divorced spouses are entitled to:
(a) military accommodation for a professional soldier or a military pensioner,
(b) a flat in exchange, within the meaning of the Law on the Lease of Dwellings and Housing Allowances, for a former spouse of the person described in (a) ...
3. Separate military accommodation will not be given to a divorced professional soldier or to a military pensioner ... who on the date when the divorce becomes final is occupying accommodation not located in the buildings listed in section 55(2)(1-3) unless there are circumstances as set out in paragraph 4.
4. If the living area of the accommodation occupied is smaller than the minimum area to which the person is entitled, the head of the local branch of the Agency, on the date the divorce becomes final, shall assign in exchange to the divorced spouses accommodation that reflects their joint entitlement, or pay a monetary equivalent ... in an amount which reflects the lack of ... living space.
5. In the cases described in 3 and 4 above the accommodation occupied may be exchanged by the parties themselves. In such cases, the head of the local branch of the Agency shall assign the military accommodation or enter into a lease with a designated person.”
Section 55(2)(1-3) of the Armed Forces Accommodation Act listed three categories of military accommodation in which it was possible to terminate the lease under section 28 (2). Those are:
1. accommodation in buildings on closed military land,
2. accommodation which is allocated, by a decision of the director of the district office of the Military Housing Agency, to the whole or a part of the staff of a certain military unit,
3. function-related accommodation.
On 28 June 2000 the Supreme Court gave a resolution III CZP 15/00 in which it considered that section 33 (3) of the 1994 Act should apply to a civil action for eviction against a former spouse of a professional soldier. The 1994 Act was repealed by the Act of 21 June 2001 on the Protection of the rights of tenants, housing resources of municipalities and amendments to the Civil Code (Ustawa o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego) (“the 2001 Act”). However, it contains an analogous regulation in section 13 (2) which allows eviction of a divorced spouse if his or her excessively reprehensible behaviour makes cohabitation impossible.
On 1 July 2004 the Armed Forces Accommodation Act was substantially amended and section 28 was repealed (the “new Armed Forces Accommodation Act”). Sections 44 and 45 of the new Armed Forces Accommodation Act open the possibility of the forcible eviction of a person who has not been a soldier but who has remained in military accommodation. They also provide for the possibility of seeking a court ruling in cases where the person subject to eviction belongs to one of the protected categories (for example a pregnant woman or a disabled person).
The new Armed Forces Accommodation Act also explicitly excludes the application of the 2001 Act to matters related to military accommodation.
On 21 December 2006 the Supreme Court gave a resolution IIICZP 131/2006 in which it found that a civil action by a professional soldier against his former wife was possible if the soldier had been granted the military accommodation prior to the date on which section 28 of the Armed Forces Accommodation Act lost its force and if the civil action had been brought after that date. The court however refused to specify which provision of the domestic law should be the legal basis for such an action, finding that the question put to it had been worded too vaguely.
The applicant complained under Article 6 § 1 of the Convention that his right of access to a court had been infringed in that he could not institute civil proceedings in order to resolve his dispute with his former wife. In particular, he could not institute eviction proceedings against his former wife, nor could he terminate the lease by asking for division of the matrimonial property.
The applicant also complained that for nine years he had been experiencing extreme hardship due to the impossibility of resolving the dispute with his former wife given the total ineffectiveness of the authorities. This situation constituted a breach of his right to respect for his private and family life. He had remarried and had been living in Warsaw since 1998; nevertheless, he remained legally the tenant of the flat that his former wife had been occupying.
The applicant’s first complaint relates to the alleged impossibility for him to institute civil proceedings to resolve a dispute with his former wife concerning the military accommodation which they had shared before their divorce. He relied on the opinion expressed by the Ombudsman in 2001. The applicant contested the effectiveness of eviction proceedings as they would have necessitated application of the 1994 Act and later the 2001 Act and proving excessively reprehensible behaviour on the part of his former wife.
The Government agreed that the flat in question did not belong to any of the categories listed in section 55(2)(1-3) of the Armed Forces Accommodation Act such that section 28 had not been applicable. However, they submitted that there had been other means open to the applicant to resolve his conflict with his former wife. In particular, the Government claimed that the applicant could have brought a civil action for her eviction – both under the old and the new regulations introduced on 1 July 2004. They referred to the Supreme Court’s resolutions of 28 June 2000 and 21 December 2006. Moreover, the Government submitted that the applicant could no longer claim to be a “victim” within the meaning of the Convention because the Military Housing Agency had effectively evicted his former wife from the flat in question in December 2007.
The Court first notes that the domestic law was amended on 1 July 2004 and it introduced a possibility for the Agency to deal with the eviction of a person occupying a military flat without authorisation by means of an administrative decision. As a result, in December 2007 the Agency had been able to evict the applicant’s former wife from the flat in question. There is no evidence that after that date the applicant continued to be negatively affected by the fact that he had been sharing military accommodation with his former wife. It appears from the parties’ submissions that it is now open to him to receive substitute military accommodation which would reflect his less significant housing needs.
Moreover, the Supreme Court in its Resolution of 21 December 2006 examined the domestic law following the entry into force of the new Armed Forces Accommodation Act on 1 July 2004. It found that a soldier seeking eviction of a former spouse from their military accommodation could bring a civil action. The applicant does not seem to contest the fact that the Supreme Court’s interpretation was applicable to his case.
As regards the applicant’s situation under the previous regime - that is before 1 July 2004 - the Court notes that the possibility of seizing a civil court had been indicated to him by the Ombudsman in 2001. The Ombudsman referred to the Supreme Court’s Resolution of 28 June 2000 which regarded the matter as falling within the jurisdiction of a civil court. The parties agreed that this avenue had been open to the applicant. However the latter contested the effectiveness of this remedy arguing that the provisions of the 1994 Act and later the 2001 Act regarding protection of tenants would have been applicable. However, the Court points out that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see, Giacometti and Others v. Italy (dec.), no. 34939/97, ECHR 2001-XII).
In this connection the Court notes that the Ombudsman’s opinion expressed in 2001 should not be considered as the only correct interpretation of the domestic law, particularly after a lapse of several years during which the domestic law had been significantly amended and a new practice of the domestic courts had been developed.
Secondly, the applicant alleged that the above situation constituted a breach of his right to respect for his private and family life. However, the Court does not find that the applicant has substantiated in any way his allegation, particularly in the light of the facts that since 2000 the applicant had not been living with his former wife and in December 2007 the flat in question had been vacated. In so far as the applicant complained that the authorities failed to take sufficient and speedy action to secure respect for his rights under Article 8 of the Convention, the Court notes that they faced a difficult conflict between private individuals who could not reach any agreement. The Court considers that it cannot be said that the domestic authorities had been totally inactive especially since the Agency effectively evicted the applicant’s former wife promptly after the termination of the administrative proceedings concerning the allocation of a smaller flat to the applicant. The applicant himself did not make any attempt to lodge a civil action seeking her eviction (see above). As regards the matter of rent due for the flat in question, it should be noted that the applicant instituted civil proceedings for payment against his former wife. The outcome of this set of proceedings is not known. However it is clear that in 2007 the applicant’s former wife paid the debt to the Agency.
In the light of the above the Court does not find it substantiated that the applicant was caught up in a situation where he could not resolve an issue affecting his private and family life and where there was no domestic authority to which he could turn.
Finally, the Court takes into account a certain margin of appreciation afforded to the State regarding the organisation of a particular regime of military housing in which the accommodation remains the property of the State and the right of lease is related to the soldiers’ service in the army.
Regard being had to all the above considerations, in so far as the matters complained of are within its competence, and regardless of other possible grounds of inadmissibility, the Court finds nothing in the case file which might disclose any appearance of a violation of this Convention provision.
It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza