WYSOWSKA v. POLAND
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo
1. The applicant, Ms Aurelia Wysowska, is a Polish national who was born in 1939 and lives in Cracow. She was represented before the Court by Mr R. Skowron, a lawyer practising in Cracow. 2. The Polish Government (“the Government”) were represented by their Agent, Mrs J.Chrzanowska of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant’s mother and father, W.S. and W.B. respectively, lived in Lwów (now Lviv’ in Ukraine) before the Second World War. They were not married as W.B already had a wife, a certain J.L. The applicant was born into her parents’ relationship on 28 September 1939. 5. W.B. was indicated as the applicant’s natural father (pater naturalis) in her baptism certificate of 20 July 1941. 6. W.B. died in Lwów on 28 September 1944. Following his death, the applicant’s mother married a certain M.S. 7. In 1949 the applicant’s last name was changed to that of her stepfather and in 1957 her birth certificate was again amended to include M.S.’s first name as the father’s name. 8. On an unknown date the applicant instituted proceedings aimed at amending further her birth certificate. 9. On 9 August 2007 the Cracow District Court allowed the change and put W.B. down as her father. 10. On 28 June 2005 the applicant instituted inheritance proceedings regarding W.B.’s estate before the Warsaw District Court. On 12 September 2005 the court found that the Cracow District Court had jurisdiction. 11. On 23 July 2008 the Cracow District Court dismissed the applicant’s claim. The court established that W.B. had died intestate on 28 September 1944 in Lwów. He had been married to J.L., however, they had separated. Instead, W.B had been in a relationship for ten years with the applicant’s mother. The applicant was W.B.’s only child, he had no siblings and his parents had died before him. 12. However, the court held that the applicant could not inherit her natural father’s estate as she had been born out of wedlock. It found that according to the Introductory Provisions of the Civil Code, the law applicable to the proceedings was the law in force at the time of W.B.’s death (see paragraph 29 below). W.B. had been a Polish citizen who had lived in Lwów. Lwów had been part of Poland until 16 April 1945 and the law in force in that province had been the Austrian Civil Code of 1811 (Algemeines bürgerliches Gesetzbuch – “the ABGB”). Under Article 754 of the ABGB illegitimate children could not inherit ab intestato from their father or father’s family. As the applicant was in that position, she could not inherit her father’s property. 13. The applicant appealed to the Cracow Regional Court. 14. On 3 February 2009 the Cracow Regional Court quashed the firstinstance decision and remitted the case. The court held that the District Court had failed to establish a list of all W.B.’s potential heirs. It further instructed the lower court to set out all the heirs, including the State Treasury. 15. In accordance with those instructions, the Cracow District Court summoned the State Treasury on 4 January 2011 to participate as a party to the proceedings. 16. On 23 February 2011 the State Treasury, represented by the Minister of the State Treasury, filed a submission that the relevant material law applicable to the proceedings was the Digest of Laws of the Russian Empire (Zwód Praw Cesarstwa Rosyjskiego). 17. On 8 March 2011 the Cracow District Court issued a decision and declared that the State Treasury had acquired W.B.’s estate. The District Court established that W.B. had died on 28 September 1944 in Lwów. He had been married to J.L but had separated from her. W.B. and the applicant’s mother W.S. had been in a relationship but they had never married. W.B. had no siblings and had not had any children with J.L. The applicant was his only child. He had not left a will and had no other heirs. 18. The court further maintained that according to the Introductory Provisions of the Civil Code the law applicable to the proceedings was the law in force at the time of a person’s death. In that regard it was first necessary to establish on which country’s territory the applicant’s father had been at the time of his death on 28 September 1944. The court held that between 1920 and 1944 Lwów had been part of Poland and the capital of Lwów Province (województwo lwowskie). On 22 July 1944 the Lwów uprising had begun, lasting until 27 July 1944. Lwów had then been occupied by the forces of the former Soviet Union. Following the Yalta Conference, the Provisional Government of National Unity (Tymczasowy Rząd Jedności Narodowej) had signed a border agreement with the government of the Soviet Union on 16 August 1945. In that treaty, Poland had formally ceded its pre-war eastern territory to the Soviet Union, agreeing to the Polish-Soviet border drawn according to the so-called Curzon Line. Consequently, Lwów had been part of Poland until 1945. 19. The court concluded that as Lwów had been within Polish borders at the time of W.B.’s death, the relevant law was the ABGB, the law in force in the province of Galicia. Under Article 754 of the ABGB illegitimate children could not inherit from a father who had died intestate. Consequently, the applicant could not inherit her father’s property and, as there were no other heirs, the State Treasury had acquired W.B.’s estate. 20. The applicant appealed, submitting that while she was aware of the provisions referred to by the District Court, she thought they were unfair and ran counter to the principles of community life (zasady współżycia społecznego) (see paragraph 31 below) and contemporary conditions. 21. On 20 January 2012 the Cracow Regional Court, in a briefly worded decision, dismissed the applicant’s appeal. The court referred to the reasons given by the District Court and held that there was no doubt that Article 754 of the ABGB had been applicable to the proceedings. It further considered that no matter how unfair the old regulations concerning illegitimate children might seem it was not possible to disregard them. That meant that under the Introductory Provisions of the Civil Code, the law applicable to the inheritance proceedings was the law in force when the father had died. 22. The applicant lodged a cassation appeal, relying in general on the case-law and provisions of the European Convention on Human Rights 23. On 21 November 2012 the Supreme Court refused to admit the applicant’s cassation appeal. It held that it was not justified to raise the issue of a significant legal question only by making a general reference to Convention case-law. A mere statement that the intertemporal rule – which meant that the law in force at the time of opening the succession was the relevant law – was incompatible with unspecified Convention provisions was not enough to qualify as a legal issue. The legal issue raised by the applicant had concerned in principle the interpretation of intertemporal provisions, however, she had not specified why Article LI of the Introductory Provisions (see paragraph 29 below) should not have been interpreted literally in her case. The court stated further that there were no grounds to rely on the provisions and values of the Convention as Poland had not been bound by it at the time of the opening of the succession. 24. On 29 December 2008 the applicant initiated proceedings under the Law on the Realisation of the Right to Compensation for Property left beyond the present Borders of the Polish State (Ustawa o realizacji prawa do rekompensaty z tytułu pozostawienia nieruchomości poza obecnymi granicami państwa polskiego) of 8 July 2005 (“the July 2005 Act”) in order to obtain compensation for property left by W.B. in Lwów. 25. On 21 March 2014 the Małopolski Governor (Wojewoda) refused to grant her request on the grounds that she was not W.B.’s heir. 26. On 25 April 2014 the Minister of the State Treasury quashed the first-instance decision on procedural grounds and remitted the case. 27. On 14 July 2014 the Małopolski Governor again refused the applicant’s request on the grounds that she had not inherited her father’s estate. The Governor referred to the Cracow District Court’s decision of 8 March 2011 (see paragraph 17 above). The Governor’s decision was upheld by the Minister of the State Treasury on 5 August 2014. The Minister noted that section 6(2) of the July 2005 Act provided that in the event of a former owner’s death an application for compensation should include a decision on acquiring the inheritance or on division of the inheritance. On 10 December 2014 the Warsaw Administrative Court dismissed a further appeal by the applicant. 28. On 3 November 2015 the Supreme Administrative Court dismissed a cassation appeal by the applicant. Referring to the decision given in the inheritance proceedings (see paragraph 17 above), the court held that the applicant had not inherited W.B.’s estate. 29. Article LI of the Introductory Provisions Act of 1964 (Ustawa przepisy wprowadząjace kodeks cywilny) (“the Introductory Provisions”), provides that the law applicable to inheritance proceedings is the one which was in force at the time of death. 30. In case of doubt as to the relevant law, Article LXIV provides that the Civil Code of 1964 should apply. 31. Article 5 of the Civil Code relates to the so-called “principles of community life” and reads as follows: “Rights may not be exercised in a manner which contradicts their socioeconomic purpose (społeczno-gospodarcze przeznaczenie prawa) or the principles of community life (zasady współżycia społecznego). Such an act or omission on the part of a person so entitled shall not be considered as an exercise of that right and shall not be protected by law.” 32. The provisions relating to inheritance are laid out in Articles 922-1057 of the Civil Code. Article 922, provides in so far as relevant: “§ 1. The property rights and obligations of a deceased person pass, upon his death, to one or several persons in accordance with the provisions of this Book [Book Four, Inheritance]....” Article 924 provides: “The succession is opened on the date of the deceased’s death”. Article 931 of the Civil Code provides, in so far as relevant: “§ 1. The deceased’s children and spouse are by law admitted first to succession; they inherit in equal shares. ...” 33. After Poland regained its independence in 1918 different civil codes were in use in various regions. The ABGB was in force on former Austrian territory (Galicia). Its last applicable provisions were repealed on 1 January 1947. 34. Under Article 754, as applicable at the material time, illegitimate children could not inherit an intestate father’s estate. 35. Pursuant to Article 760, as in force at the material time, the estate was to pass to the State if no heir was found. 36. The Convention on the Legal Status of Children Born out of Wedlock, drawn up within the Council of Europe entered into force on 11 August 1978. It entered into force in respect of Poland on 22 September 1996. Article 9 provides in respect of succession rights as follows: “A child born out of wedlock shall have the same right of succession in the estate of its father and its mother and of a member of its father’s or mother’s family, as if it had been born in wedlock.” 37. Article 28 of the Vienna Convention on the Law of Treaties of 23 May 1969 (“the Vienna Convention”) provides: Non-retroactivity of treaties “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.”