MCKAY-KOPECKA v. POLAND
Inadmissible
Nicolas Bratza
The applicant, Ms Renata Mckay-Kopecka, was born in 1931. She is a national of Poland and the United States of America. The applicant lives in Boston. She is represented before the Court by Mr L. Hincker, a lawyer practising in Strasbourg. The respondent Government are 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. Since 1986 the applicant had been living with her uncle E.B. in a oneroom flat in Warsaw. E.B., who owned the flat, died on 6 April 1988. By a court’s decision given in October 1988 Miss M.M., who was a minor at that time, inherited the flat. The applicant travelled often to the United States but was allowed to live in the flat each time she returned to Warsaw, since this was in accordance with the last will of E.B., and M.M.’s parents were in agreement with the arrangement. In 1989 M.M.’s title to the flat was challenged before the Warsaw District Court which decided to reopen the inheritance proceedings. In 1991 M.M. applied to the Warsaw District Court for an eviction order in respect of the applicant. However, the proceedings concerning her application were stayed pending the outcome of the inheritance proceedings. In 1995 M.M. requested the applicant to leave the flat by 15 December 1995. During the applicant’s absence from Poland M.M. had changed the locks in the flat. Upon the applicant’s return, on 30 April 1996 she removed the locks with the assistance of private security agents and entered the flat. On the same day M.M. informed the police that the applicant had been living in the flat without being registered. On 7 May 1996 at 8.15 a.m. the applicant heard somebody banging on the door and shouting “Open, police”. The applicant opened the door. Two police officers entered the flat and inspected the applicant’s identity card, in particular the part concerning the applicant’s registered address (zameldowanie). The police officers informed the applicant that she should leave the flat and that M.M. should be allowed to take possession of it as she had title to it. At this point several young men who accompanied M.M. started to remove the applicant’s personal effects from the flat. They carried the applicant, dressed only in her underwear, out of the flat in an armchair. They also humiliated and insulted her. The police officers, who remained inside the flat, did not react to the behaviour of the young men and stated that the applicant had to leave the flat and that their duty was to protect her. In view of the violence used against her, the applicant decided to leave the flat taking only her documents with her. Subsequently, on 7 May 1996, M.M. changed the locks. On 9 May 1996 at 2 p.m. the applicant, accompanied by private security agents, removed the locks fitted by M.M. and entered the flat. The applicant verified the contents of the flat and discovered that USD 9,500 and a Patek watch were missing. Shortly afterwards, M.M., together with several individuals, came to the flat. She was followed by police officers. The police officers announced that the applicant had committed a burglary and started to take photographs of the flat. One of the individuals accompanying M.M., a certain Mrs T.O., insulted the applicant and pulled a telephone receiver from her hand. The police officers did not react. Moreover, the police officers did not allow the applicant’s brother to speak to her. Between 4.20 p.m. and midnight the entrance to the flat was blocked by six police officers. On 10 May 1996 M.M. removed the front door of the flat. On 12 May 1996 two police officers came to the flat and advised the applicant that she was not allowed to install a new front door. On 14 May 1996 the applicant was in the flat together with private security agents hired by her. At 10 p.m. M.M. came to the flat accompanied by several individuals and three police officers. One of the police officers was the Warsaw Ochota Deputy Police Commissioner. Initially, the security agents hired by the applicant refused them entry. However the police officers threatened that they would call for reinforcements and the agents let them in. The police officers allowed M.M. to move into the flat. M.M. remained in the flat where she lived together with the applicant until 20 May 1996. On 20 May 1996 the applicant and her belongings were removed from the flat by M.M. assisted by several individuals. The applicant immediately called the police, but the police officers who arrived at the scene did not intervene. On 7 May 1996 police officers knocked on the applicant’s door and she let them in. After having inspected her identity document the police officers informed the applicant that she had been living in the flat without being registered there, which constituted a petty offence, and summoned her to appear at the police station the following day. While the police officers were leaving, M.M., accompanied by persons who had stayed outside in the corridor, entered the flat. Both the applicant and M.M. requested the police officers to stay as they felt insecure. A police officer spoke on the telephone to the officer on duty who instructed them to remain at the scene. They remained in the corridor until about 12 o’clock. The applicant signed an agreement with M.M. to the effect that on 9 May 1996 she would move out and take all her belongings with her. Subsequently, the locks were changed and the keys were deposited with the representative of the housing cooperative. On 9 May 1996 the applicant accompanied by private security agents and a locksmith removed the locks and entered the flat. The police were informed by neighbours that there had been a burglary in the flat. Police officers came to the flat and inspected the identity documents of the persons present. They stayed in the corridor as in the meantime M.M. had arrived. Subsequently, the applicant’s brother tried to enter the flat by force and threatened M.M. with an electroshock gun (paralizator). The police intervened in order to stop him and inspected his identity documents. The applicant stated to the Police Commissioner that she wished to make a formal declaration that M.M. had committed a crime. M.M. had also requested the police to investigate the charges of burglary against the applicant, but the proceedings were discontinued on 26 March 1998. The police were called by M.M. on 10 and 12 May 1996. On both occasions they inspected the identity documents of the persons present in the corridor, but did not enter the flat. On 15 May 1996 the police were called by the applicant’s sisterinlaw who wanted to enter the flat which had been locked by M.M. and the applicant. Since M.M. did not let her in, the applicant stepped out of the flat and spoke to her sisterinlaw. Police officers were present, but did not intervene. The applicant and M.M. lived together in the flat until 20 May 1996. On that date the applicant removed her belongings and left. On 10 May 1996 the applicant’s counsel filed a request with the Warsaw Ochota District Prosecutor to prosecute the police officers who on 7 May 1996 had intervened in the dispute over the applicant’s flat. The counsel informed the prosecution service that the police officers had used force to enter the applicant’s flat and had proceeded to evict the applicant. The counsel further pointed out that he represented the applicant in several civil cases and was certain that the eviction proceedings against the applicant had been stayed pending the outcome of the inheritance proceedings. The counsel concluded that the police officers had not had an eviction order and their actions had therefore been unlawful. On 19 August 1996 the Pruszkow District Prosecutor discontinued the investigation into the applicant’s allegations. The prosecutor heard the applicant, M.M. and the police officers. He concluded that the police officers who were sent to intervene on 7 May 1996 were ordered to inspect the registration address and that they had then stayed at the request of both women who had been quarrelling. The prosecutor found that the events as alleged by the applicant did not take place. Consequently, he concluded that the actions taken by the police officers were legal and were aimed at preventing a breach of the law by the persons present. The applicant’s counsel appealed and it appears that the case was again examined by the District Prosecutor. On 18 April 1997 the Pruszków District Prosecutor again decided to discontinue the investigation into the charges brought against the police officers by the applicant. The prosecutor’s decision included the following conclusion: “The evidence collected in the case shows that the police officers intervening between 30 April and 15 May 1996 did not violate any of Mrs McKayKopecka’s rights. The police officers were only ordered to carry out an inspection of her registered address (kontrola meldunkowa). It should also be pointed out that it is difficult to agree with the victim’s claims that the police officers by their failure to act approved the removal of her personal effects and by their presence forced her to accept the new situation. The evidence taken from witnesses shows that the police officers on numerous occasions remained at the scene at the request of the victim or M.M. Moreover, the evidence does not confirm the victim’s allegations that her personal effects were taken away. In view of the above I conclude that the actions of the police officers complied with legal regulations and were aimed at avoiding breaches of the law by the individuals present at the scene.” The applicant appealed against this decision, but her appeal was dismissed on 28 November 1997 by the Warsaw Regional Prosecutor. The Regional Prosecutor’s decision concluded as follows: “As was rightly pointed out by the District Prosecutor no evidence has been collected which would confirm an abuse of power or a failure by the intervening police officers to fulfil their duty. The interventions concerned verification of the registered address and resulted from a request of the president of the housing cooperative who had misled the police with respect to the title to the flat. The applicant unsuccessfully attempted to prosecute M.M. on charges of inter alia theft and unlawful eviction. On 27 February 1997 the Warsaw District Prosecutor discontinued the investigation and found that no offence had been committed. On 26 March 1998 the District Prosecutor discontinued the investigation against the applicant, instituted upon M.M.’s request, into charges relating to inter alia the breaking down of the door of the flat. The applicant instituted civil proceedings against M.M. in which she sought restitution of the actual possession of the flat. On 25 January 1999 the Warsaw District Court dismissed the applicant’s application. She appealed against this decision, but her appeal was dismissed by the Warsaw Regional Court on 25 January 1999. Article 147 (1) of the Petty Offences Code (Kodeks Wykroczeń) provides that the failure to register one’s address is punishable by limitation of liberty (ograniczenie wolnosci), a fine or a reprimand. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. “1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.”