BORENSTEIN AND OTHERS v. POLAND
Inadmissible
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
The applicants are: Ms Sara Borenstein, born in 1914, living in Israel, and Mr George Shrier, born in 1953, Ms Sabina Weinreb, born in 1928 and Ms Anne Leichtman, born in 1954, all three living in the United States of America. They were represented before the Court by Ms B. Krzesak, a lawyer practising in Bielsko-Biała, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants’ grandfather M.W. owned a house in Oświęcim that had been divided into flats. He survived the Holocaust and in 1948 left Poland, having appointed W.B. as a representative for the purposes of managing the property. They remained in constant contact and W.B. – and subsequently his wife – kept the applicants’ grandfather informed about the situation and financial affairs of the property until his death in 1968. In 1963 the local municipality in Oświęcim took over the management of the house, having stated in the relevant decision that the property had not been managed and supervised by its owner at all since 1948 and that, as a result, it was in a bad state of repair. This decision was served on Ms K.B., the widow of the late manager of the property, W.B., who subsequently stayed in touch with the applicants. In 1978 the State Treasury requested the Oświęcim District Court to declare that it had acquired ownership of the property by way of adverse possession. The court accepted the claimant’s submission that the owner was at that time of unknown abode and appointed a guardian ad litem for the applicants’ grandfather. On 30 August 1978 the court allowed the State Treasury’s request. No written grounds were prepared for that decision, as the court was obliged to prepare such grounds only if a judicial decision was being appealed against. Accordingly, the State Treasury became owner of the property. On an unspecified later date, but in any case before 1989, an entry in the land register was made to confirm the State’s ownership of the property concerned. In 1990 the State Treasury’s ownership of land was transferred to local municipalities as part of a countrywide legal reform of local government. Accordingly, the Oświęcim municipality took over the rights to land within its borders that had previously been owned by the State Treasury. In 1992 the applicants obtained decisions from various Polish courts to the effect that they were the legal successors of their grandfather M.W. In 1995 the applicants requested that the proceedings concerning the acquisition of ownership by adverse possession that had ended with the 1978 decision be reopened. They argued that these proceedings were invalid in law since they had been flawed as a result of serious procedural shortcomings. The court had appointed a guardian ad litem for their father, which was obviously incorrect as he had died in 1968 and no guardian ad litem could be appointed in respect of a deceased person. Further, the court had failed to publish an announcement about the guardian having been appointed for the applicants’ grandfather, which resulted in the proceedings being invalid in law as it thereby became impossible for the parties to have their rights properly represented in the proceedings. Their request was eventually dismissed on 30 December 1996, the appellate court having upheld the lower court’s conclusion that the applicants had failed to submit their request within the one-month time-limit from 10 August 1990, the date on which they had learned about the 1978 decision. On 23 June 1997 the Minister of Justice brought an appeal on points of law against the 1978 decision on the applicants’ behalf. The Minister argued that the decision should be quashed for the following reasons: i) in the proceedings the court had failed to take into consideration that the property had not in fact been abandoned by the owner but had been managed, at least until 1962, by his representative, who had been validly appointed in 1948; ii) the claimant had failed to disclose to the court the fact that in 1962 the defendant had been alive, and that it was not true that at that time it had been impossible to get in touch with him; iii) this failure had a direct incidence on the finding that the State Treasury had been in de facto possession of the property for the period required by law for adverse possession; iv) the court had erred in that it had appointed a guardian ad litem for a person who was dead at that time; v) in the 1978 decision the court had failed to indicate a) the date from which the State had acquired ownership by adverse possession, b) whether it had regarded the State as being in possession in bad or in good faith and c) how it had calculated the period of adverse possession necessary for the acquisition of ownership by adverse possession. Following the appeal, on 22 October 1997 the Supreme Court quashed the 1978 decision, invalidated the proceedings which had led to it and ordered that the State’s request for a declaration that it had acquired the ownership by adverse possession be re-examined. The Supreme Court shared the view of the Minister of Justice concerning the error that the court had committed in appointing a guardian ad litem for a person who was dead. It observed that, contrary to the relevant legal obligation, no press announcement had been made about the proceedings having been instituted. Importantly, the court had also failed to make any effort to establish the whereabouts of the former owner or his legal successors. The Supreme Court further noted that when giving the 1978 decision the court had failed to make findings crucial for the legal assessment of the case, such as the determination of the beginning of the period of possession, the manner of its calculation and the legal basis for considering that the State had been in possession of the property in question cum animo rem sibi habendi. The Supreme Court did not pronounce on the Minister’s submission that the State’s representatives had failed to disclose to the court in 1978 certain relevant information regarding the status of the property. Subsequently, the proceedings concerning the State’s original request for a declaration that it had acquired the property through adverse possession were resumed. In these proceedings the applicants submitted that because of all the procedural shortcomings identified by the Supreme Court, the State should be considered to have acquired ownership in bad faith. Under the relevant law, the period necessary at that time for acquisition of ownership through adverse possession where there was bad faith was twenty years. This period could only be calculated as running, at the earliest, from 30 August 1978. Hence, it had not ended by the date on which the present set of proceedings was already pending, the running of the period of adverse possession having been interrupted by the appeal lodged on the applicants’ behalf by the Minister. On 19 June 2002 the Oświęcim District Court held that the State Treasury had acquired ownership of the property through adverse possession on 8 October 1988. The court noted that two conditions had to be fulfilled for such acquisition to be effective: 1) the property had to be in the possession of the claimant acting cum animo rem sibi habendi and 2) the statutory period of possession had to have expired. The court found that the period between 1963 and 1978 could not be taken into account as regards adverse possession of the property since during this period the State had been acting only as its manager. However, as from 8 October 1978, the date on which the decision of 30 August 1978 had become final, the State had to be regarded as being in possession of the property “like a property owner” (cum animo rem sibi habendi). The 1978 decision authorised the State to dispose of the property, even if the decision itself had been procedurally flawed. The District Court further found that the 1978 decision had justified the State’s assertion that it had become the owner of the property concerned. Accordingly, on 8 October 1978 the State had obtained possession in good faith since that possession had arisen from a valid judicial decision. The period of adverse possession required by law in case of good faith was ten years. The District Court further noted that the point in dispute was whether the State Treasury could count towards the period of adverse possession required for acquisition of the property the period of its occupation arising from a judicial decision which had been quashed after the period of adverse possession had expired. That question was answered in the affirmative by the Supreme Court in the Resolution of 25 October 1996, no. III CZP 83/96, and the District Court applied that conclusion to the present case. Accordingly, the period of adverse possession in good faith having come to end on 8 October 1988, it was on that date that the State had acquired title to the property concerned. The applicants appealed. They submitted that the lower court had erred in holding that the claimant had acquired title through adverse possession in the absence of good faith and of the requisite character of possession (cum animo rem sibi habendi). It was wrong, in their view, to disregard the period preceding the 1978 decision since the State had come into possession of the property when it had taken over its management in 1963. That coming into possession had been unjustified, and thus in bad faith, since the owner’s representatives had at the relevant time duly managed the property. The State Treasury had continued to manifest its bad faith by withholding relevant information from the court when making its application in 1978. The applicants contested the argument that the State could be regarded as being in possession in good faith as a result of the 1978 decision having become final. Having regard to the circumstances in which the State had taken over the management of the property in 1963, they argued that after 1978 the State had simply continued to manage the property. Thus, its possession could not be regarded as possession cum animo rem sibi habendi. Furthermore, the State could not benefit from the 1978 decision because that decision had been rendered in proceedings in which the applicants – as a result of the State’s actions – had been deprived of any possibility to defend their interests. If the court were to hold otherwise, the very concept of good faith would be undermined. The applicants also argued, referring to the Supreme Court’s Resolution of 25 October 1996, that it was necessary to consider whether the State authorities’ actions had led to the deprivation of their property. They disagreed with the automatic conclusion that since the possession had arisen from a judicial decision it would always have to be considered possession in good faith. On 6 December 2002 the Kraków Regional Court dismissed their appeal as unfounded. It analysed in detail all the arguments raised in the appeal. The Regional Court firstly noted that, contrary to the applicants’ assertion, it was not necessary to determine the circumstances relating to the State’s taking over the management of the property in 1963 since the State’s rights stemming from an administrative decision on management could not be considered as possession cum animo rem sibi habendi. This view had been expressed by the Supreme Court in its decision of 22 October 1997. The Regional Court stressed that the date of the decision on acquisition of title by adverse possession, and in particular the date on which this decision had become final, was of crucial relevance for the calculation of the period of adverse possession. It was from that date that the claimant (the State) had obtained a judicial decision declaring that it had become the owner of the property concerned. It noted that the Supreme Court’s Resolution of 25 October 1996, no. III CZP 83/96 allowed the State Treasury to count towards the period of adverse possession the period throughout which the State had exercised the right to dispose of the property “like a property owner” on the basis of a judicial decision which was quashed after the period of adverse possession had expired. In the present case the court was dealing with precisely such a situation. The Regional Court observed that that situation was different from the one which was analysed in the Supreme Court’s decision of 29 October 1996, no. III CKU 8/96 (published in OSNC 1997/4/38) in which the Supreme Court had held that: “if the State Treasury’s right to dispose of a property “like a property owner” is based on an administrative decision which is subsequently set aside with retrospective effect (ex tunc) on account of a manifest mistake of law, then the State Treasury may not take into account the fact and period of such occupation when calculating the period of adverse possession referred to in Article 172 of the Civil Code”. The Regional Court noted, however, that as the Supreme Court had underlined in its Resolution no. III CZP 83/96, and by contrast to the above situation, adjudication by civil courts did not amount to State sovereign interference in private-law relations since the courts were established to apply the law in civil cases. In the same Resolution the Supreme Court had emphasised that even manifest breaches of procedural rules in deciding a case may not – as such – be qualified as manifestation of State exercise of its sovereign powers. The Regional Court noted that the District Court when deciding the case in 1978 had committed flagrant errors which resulted in the decision being quashed, but nevertheless that did not deprive the claimant of a possibility to have its application granted. In these particular circumstances the Regional Court concurred with the District Court that certainly from the date on which the decision of 30 August 1978 had become final the claimant should be regarded as being in possession of the property cum animo rem sibi habendi. That date marked also the beginning of the period of adverse possession. In this respect, the Regional Court noted that the applicants had not rebutted the legal presumption established in Article 339 of the Civil Code that the actual possessor of a property should be considered to be in possession of it “like a property owner”. Instead, they had focused their submissions on showing that the taking over of the property’s management in 1963 had been unlawful and had not analysed the relevance of the 1978 decision which declared that the State had become the owner of the property. Lastly, the Regional Court considered the issue of good or bad faith on the part of the State which was relevant for the calculation of the period of adverse possession. In this respect, it referred to the legal presumption in favour of good faith laid down in Article 7 of the Civil Code and found that the applicants had not discharged the burden upon them of proving bad faith on the part of the claimant. In this respect the Regional Court held as follows: “If bad faith on the part of the claimant were to be assumed at the time when that (1978) decision was given and when it became final, it would have to mean that, regardless of such content of the decision supported by the authority of the court vested with determination of civil-law cases, the claimant would have still to believe that the title did not belong to him or suspect that another person was the owner. Such a view, in the appellate court’s opinion, cannot be sustained”. At the same time, the Regional Court noted that the above conclusion could not be seen as its approval of the manner in which the 1978 proceedings had been conducted. Consequently, the Regional Court held that the ten-year period of adverse possession in good faith having come to an end on 8 October 1988, the State had acquired ownership of the property concerned with effect from that date. On 19 August 2003 the Supreme Court refused to entertain a cassation appeal lodged by the applicants, finding that no serious legal issue arose in the case such as to justify examination of the appeal. Article 7 of the Civil Code provides: “If a law makes legal consequences dependent upon good or bad faith, good faith shall be presumed” Article 339 of the Civil Code reads: “It shall be presumed that a person in actual possession of property is in possession “like a property owner” (cum animo rem sibi habendi)” Adverse possession is regulated in Article 172 of the Civil Code. Up until 1 October 1990 that provision provided that a person could acquire ownership of land after ten years’ continuous and independent possession in good faith. Otherwise, a longer period of twenty years applied. In 1990 the Civil Code was amended and the statutory periods of adverse possession in good and bad faith were extended by ten years. Article 172, in force since 1 October 1990, reads: “§ 1. Persons in possession of property, although they are not the owner, shall acquire title thereto if they have been in continuous and independent possession thereof for twenty years, save where they came into such possession in bad faith. § 2. After thirty years, persons in possession of property shall acquire title thereto even if they came into possession thereof in bad faith.” Persons in possession of the property can apply to the district court for a declaration that, as of a specific date, they acquired ownership of property on the strength of adverse possession for a statutory period. In its Resolution No. III CZP 83/96 of 25 October 1996 (published in OSNC 1997/5/47), the Supreme Court held that: “the State Treasury may count towards the period of adverse possession, within the meaning of Article 172, the period of occupation “like a property owner” on the basis of a court judgment which was [subsequently] quashed as a result of an extraordinary appeal (rewizja nadzwyczajna) after the period of adverse possession had elapsed.” In the written grounds the Supreme Court observed that the manner in which the possessor came into possession of the property, including whether he was aware of any unlawfulness in this respect, was immaterial for the validity of adverse possession. The latter circumstance was relevant for the calculation of the period of adverse possession. Furthermore, the Supreme Court noted that the validity of adverse possession would not be affected in a case where the final court judgment declaring acquisition of title was subsequently quashed on appeal. The Supreme Court further observed that in exceptional circumstances it might be possible to disregard the legal consequences of the application of civil law. In particular, such a possibility might arise when an unlawful interference by the State exercising its sovereign prerogatives (imperium) in private-law relations was a determining factor which led to the deprivation of a civil right. By contrast, adjudication by civil courts did not constitute State sovereign interference in private-law relations, since the courts had been established to apply the law in civil cases. Accordingly, even grave procedural errors committed by a court when determining a case could not of themselves be qualified as a manifestation of State exercise of its sovereign powers. There would have to be some additional, exceptional circumstances indicating that the State had abused its sovereign prerogatives or acted unlawfully with a view to depriving a person of his or her civil right.