SIEBERT v. POLAND
Inadmissible
Nicolas Bratza
The applicant, Mr Zdzisław Siebert, is a Polish national who was born in 1928 and lives in Poznań. The respondent Government were represented by Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In 1961 the applicant was granted a tenancy, by way of an administrative decision, in respect of an apartment situated in a private house in Grochowska Street in Poznań, subject at that time to the compulsory management of the Poznań municipal administration. From 1982 to 1987 the applicant worked in Warsaw, apparently living in a hotel. During that period he was registered for a temporary stay in the local register of inhabitants. This temporary registration was only possible on a condition that he had a permanent address elsewhere. On 30 September 1983 the applicant voluntarily terminated the registration of his permanent residence in Poznań. On 10 October 1985 and on 28 October 1988 respectively, the municipal authorities cancelled the permanent registration of K.S. and E.S., the applicant's daughters, in view of the fact that they had emigrated from Poland to Germany. On 23 November 1987 the applicant's tenancy was revoked by means of an administrative decision on the grounds that the applicant had ceased to satisfy the contractual requirements, as he had moved out of his apartment and was registered as a permanent inhabitant in L. On 21 April 1988 the Housing Department of the Poznań Town Hall, acting as a second-instance administrative authority, upheld this decision. On 26 May 1989 the Supreme Administrative Court dismissed the applicant's appeal against the decision of 21 April 1988. On 23 May 1988 the Poznań Town Hall refused to register the applicant as having a permanent address in Grochowska Street. On 2 July 1988 this decision was upheld by the higher administrative authority, which considered that it was beyond dispute that the applicant was not entitled to have a permanent residence at the apartment concerned. He had lost his entitlement following the final decision of 21 April 1988, by which the allocation of the apartment to him had ceased to be valid. The applicant had not been living there since 1983, when he had moved out and left it to his daughter. He had also requested that his name be struck off the register of persons having a permanent address there, and had moved into his brother's apartment in L. In September 1989 the Housing Department of the Poznań Town Hall allocated replacement accommodation to the applicant, consisting of a room 12 square metres in size, with the use of a toilet and water tap in a communal flat. The applicant appealed against this decision, alleging that the rescission of the previous tenancy in Grochowska Street had been unlawful. On 9 November 1989 the second-instance administrative authority at the Poznań Town Hall dismissed the applicant's appeal. On 17 May 1990 the Minister of Justice refused to lodge an extraordinary appeal against the judgment of 26 May 1989, finding that it was in conformity with the law, particularly as the applicant had moved out of his apartment and registered his permanent address elsewhere, thus clearly relinquishing his entitlement to that apartment. In March 1990 the applicant was summoned to vacate the apartment, but the eviction was subsequently stayed at the applicant's request, and on the objection of the owner of the replacement accommodation. On 25 May 1990 the Supreme Administrative Court dismissed the applicant's appeal against the decision of 9 November 1989, considering that the replacement accommodation met legal standards, and that the applicant's appeal essentially sought to challenge the revocation of his entitlement to the previous apartment. In January 1991 the Poznań Town Hall informed the applicant that he could not be registered with a permanent address at Grochowska Street. On 12 March 1991 the President of Supreme Administrative Court informed the applicant that he would not consider requesting the Minister of Justice to lodge an extraordinary appeal against the judgment of 25 May 1990, account being taken of the fact that the allocation of replacement accommodation was the natural consequence of the applicant's loss of entitlement to the previous apartment. On 20 May 1991 the Local Government Board of Appeal of the Poznań Region quashed the decisions of 6 September 1989 and 9 November 1989 by virtue of which the applicant had been allocated replacement accommodation. The Board noted that the house in which this apartment was situated was owned by J.M., who had objected to that accommodation being allocated to the applicant. On 23 June 1992 the applicant lodged an action with the Poznań District Court for a declaration that the administrative decision of 1961 remained valid. He submitted that he had lost the legal title to the apartment following the unlawful 1988 decision in which the authorities had flagrantly breached the law, in particular by disregarding the fact that he had never permanently left the apartment. As a result of the decision depriving him of the tenancy contract, he could not be registered as an inhabitant, with all the adverse administrative consequences thereof. He referred to difficulties in obtaining his passport, and to the fact that he was regarded by the authorities as a homeless person. He had encountered difficulties in exercising his voting rights as it was only after persistent efforts that he was eventually registered on the electoral lists. On 6 October 1992 the District Court refused to entertain his claim, apparently considering that it lacked jurisdiction to examine issues pertaining to the validity of administrative decisions. In reply to the applicant's complaint that he had been deprived of his right to vote in the municipal elections in 1994, the Secretary of the State Elections Committee informed him on 7 July 1994 that the voters' lists had been prepared on the basis of municipal electoral lists. These lists included ex officio persons with permanent addresses in the given municipality. Persons temporarily residing in the municipality, who were not so registered could be included in electoral lists, provided that they submitted a request for registration. In 1997 the applicant complained to the Poznań Town Hall that, due to the fact that he did not have an officially registered permanent address, he could not obtain a certificate of entitlement to a share in a privatised State property (a NFI share certificate). Only those citizens who had a permanent abode were entitled to receive such certificates. In a reply dated 9 February 1997, the applicant was informed that under the applicable laws on privatisation he had not been classified as a person eligible to collect a NFI share certificate, in the absence of a permanent registered address. Nevertheless, as a consequence of a judgment of the Constitutional Court, confirmed by the Polish Parliament, the entitlement of persons without a registered permanent address to receive a NFI share certificate had been recognised and such persons would be granted their share certificates in the course of time. Apparently, the applicant is still living in the apartment in Grochowska Street. As he is regarded as staying in the apartment without any legal basis, he is obliged to pay double rent under applicable housing regulations. From 1945 on, housing matters were subject to a high degree of state control under successive acts of housing legislation. The most important characteristic of this system, a so called “special lease scheme” was that a tenancy was created by means of an administrative decision and not by a civil law contract between the landlord and the tenant. Under these protected tenancies, the tenants paid controlled rent and the owners could not terminate lease by giving notice on the tenant. Although “the special lease scheme” was abolished under the 1994 Act, the system of protected tenancy is still applicable to the tenants who had been allocated their apartments on the basis of previous administrative decisions. The obligation for Polish citizens residing in Poland to register their permanent address in a municipality's register of inhabitants is stipulated in Article 5 of the National Identity Cards and Registration of Persons Act 1974 (Ustawa o ewidencji ludności i dowodach osobistych z 10.04.1974). Under Article 6 of the 1974 Act, the notion of “living permanently” implies residing at a given address with the intention of making it the principal centre of one's vital interests. Article 9 (2) of the 1974 Act provided that: “a person applying to have their permanent or temporary residence registered shall submit a certificate to the effect that they are entitled to stay in the apartment (or other dwelling premises) concerned.” On 27 May 2002 the Polish Constitutional Court declared Article 9 (2) of the 1974 Act unconstitutional and, subsequently, this provision was repealed with effect from 19 June 2002. As a result of the judgment of the Constitutional Court, the certificate to the effect that a person is entitled to stay in an apartment is no longer a prerequisite for having his permanent or temporary residence registered. Under the Electoral Law of 1993 and of the Electoral Law of 2001 a person who has no fixed residence shall be registered, upon his own motion lodged 10 days before the election at the latest, as a voter in the electoral list in a commune in which he is staying. Under Article 31 of the National Investment Funds and Privatisation Act of 1993 (Ustawa o narodowych funduszach inwestycyjnych i ich prywatyzacji) every citizen of the Republic of Poland aged 18 or over and permanently residing in Poland was entitled to receive a National Investment Fund (NFI) share certificate (to be later converted into company stock). Under the amended version of this provision, which came into force on 31 May 1997, the Minister of Internal Affairs and Administration was responsible for drawing up the lists of persons, not having a permanent residence address in Poland, who were entitled to receive a NFI share certificate.