CASE OF ŻUK v. POLAND
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev
5. The applicant was born in 1951 and lives in Szczecin. 6. The applicant and her husband married in 1979 under the statutory regime of common marital property, provided for by the provisions of the 1994 Family and Custody Code. Under the applicable provisions of that Code they had equal shares in their common property. 7. By an administrative decision of 20 November 1989 the Szczecin Town Council (Urząd Miejski) held that the applicant’s husband, Mr Henryk Żuk, was determined a candidate to purchase two plots of land, nos. 184/3 and 187/3, owned at that time by the State Treasury and managed on its behalf by the State Land Fund (Państwowy Fundusz Ziemi). The Town Council, representing the State Treasury at that time, was obliged to sell the land to him on the basis of that decision. The administrative body established a three-month time-limit for the sale contract to be concluded. 8. J.S., W.K. and W.H., who had also applied to purchase the plots of land concerned, appealed against this decision. On 21 March 1990 the Director of the Regional Land Management Office in Szczecin (Urząd Wojewódzki) dismissed the appeal brought by J.S. It further confirmed the entitlement to purchase the land created by the contested decision, considering, inter alia, that the plots concerned were adjacent to a farm owned and run by the applicant and her husband and that therefore they were natural candidates for the purchase. The authority referred to the Act on Selling State-Owned Properties 1958 (ustawa o sprzedaży nieruchomości Państwowego Funduszu Ziemi). 9. By letters of 27 April 1990 and 23 July 1990 the Mayor of Szczecin (Prezydent m. Szczecina) informed the applicant and her husband that the decision of 20 November 1989 confirmed by the decision of 21 March 1990 could not be executed because W.K. had also contested it. The proceedings had therefore been re-opened ex officio. It was further stated that after the finalization of the appellate proceedings, the documents would be forwarded to the Cooperative Bank in Szczecin in order for the contract to be concluded. The three-month time-limit for the conclusion of the contract would start to run only after the decision became final. 10. On 16 April 1993 the Szczecin Governor (Wojewoda) upheld the validity of the decision of 20 November 1989. On 6 June 1994 the Minister of Agriculture dismissed the appeals referred to in paragraph 8 above. On 16 October 1995 the Supreme Administrative Court in Warsaw dismissed the appeal brought by W.K. Accordingly, the contested decision became final on an unspecified date in early 1996. 11. On 16 May 1994 a new local land development plan (plan zagospodarowania przestrzennego) was adopted by the Szczecin municipality. 12. On 27 March 1998 the Szczecin Governor (Wojewoda) gave an administrative decision transferring ownership of the land concerned to the Agency of Agricultural Property of the State Treasury (Agencja Własności Rolnej Skarbu Państwa) in order for the 1989 decision to be executed. The Agency appealed. On 10 January 2002 the Minister of Agriculture quashed this decision. He found that under the provisions of the Szczecin land development plan of 1994 the lands situated within the administrative limits of the municipality and intended for agricultural purposes were not to be owned by the State Treasury and therefore not subject to transfer to the resources of the Agency. 13. The Szczecin Town Council, when subsequently called by the applicant and her husband to execute the 1989 decision by selling the land to them, refused to do so. In letters dated 13 June and 31 July 2002 and 14 February 2003 addressed to the applicant and her husband, the municipality’s executive board (Zarząd miasta) refused to transfer ownership to them essentially because the land concerned, situated within the administrative limits of the Szczecin municipality, had been designated for non-agricultural purposes under the 1994 land development plan. 14. In 2003 the applicant called on the Zachodniopomorskie Governor (Wojewoda Zachodniopomorski) to issue an administrative decision transferring ownership rights from the State Treasury to the Szczecin municipality, but to no avail. 15. On an unspecified date the Szczecin Mayor (representing the municipality) requested the Governor (representing the State Treasury) to take over the ownership of the plots of land concerned. On 30 September 2003 the Governor refused to do so, relying on the Act of 19 October 1991 on the management of State-owned agricultural property (ustawa o gospodarowaniu nieruchomościami rolnymi Skarbu Państwa oraz o zmianie niektórych ustaw). It was noted that under the 1994 land development plan adopted by the Szczecin municipality, the plots no longer constituted agricultural land either within the meaning of the Civil Code nor under the local land development plan. It could therefore not be transferred to the Agency representing the State Treasury in the management of agricultural properties it owned as the agency had jurisdiction only in respect of land designated for agricultural uses. The Mayor appealed. On 8 June 2005 the Minister of Agriculture upheld the contested decision. No appeal to the administrative court against this decision was lodged. 16. As a result, the land remained municipal property. 17. On 17 April 2003 the applicant and her husband lodged a civil action against the Szczecin municipality. They requested the court, relying on Article 64 of the Civil Code, to oblige the defendant municipality to sell the property concerned to the applicant’s husband on the basis of the 1989 decision (roszczenie o złożenie oświadczenia woli). In response to the claim the defendant municipality asked for the action to be dismissed. It submitted that it did not own the land concerned. It was at that time owned by the State Treasury. As the Governor had refused to give a decision on the transfer of ownership of that land to the municipality (see paragraph 15 above), the latter could not sell it. The municipality further argued that the claim to have the property sold to the applicants had become prescribed. 18. The Szczecin District Court, by a judgment of 28 November 2003, dismissed the claim. The applicant and her husband appealed. 19. On 15 April 2004 the Szczecin Regional Court allowed the appeal, amended the contested judgment and allowed the claim. It dismissed the prescription objection. The court was of the view that the ten-year prescription period provided for pecuniary claims under the provisions of the Civil Code had started to run only in 1996 when the 1989 decision had become final (see paragraph 10 above). 20. The court further obliged the municipality to sell the land concerned to the applicant and her husband. It was of the view that the first-instance court had erred in finding that neither the provisions of the 1958 Sale of the National Land Fund Act (ustawa o sprzedaży nieruchomości Państwowego Funduszu Ziemi) nor the decision given in 1989 and 1990 (see paragraphs 7 and 8 above) on the basis of that Act provided for an obligation on the part of the municipality to sell the land to the addressee of that decision. That decision created on the claimants’ part a claim of a pecuniary nature to have the sale contract concluded with them. They were not therefore obliged to participate in a tender which was simply another procedure for buying the land owned by the State, not applicable to their situation. The fact that the proceedings lasted until 1996 because other persons had contested that decision did not affect the validity of their claim. Nor did the fact that the applicable provisions changed in 1991 and the ownership of the land had thereby been transferred ex lege from the State Treasury to the municipality (see paragraphs 34-35 below) affect the existence and validity of the claim to have the purchase contract concluded or the corresponding obligation on the part of the public authorities. In the operative part of the judgment the court expressly formulated the essential provisions of the sale contract to be concluded by the Szczecin Municipality with the applicants, including the price of PLN 11,015 to be paid for the plots. The court further ordered the municipality to cover the legal costs borne by the applicant and her husband in the amount of PLN 4,496. 21. The defendant municipality appealed. Its appeal was rejected on 9 September 2004 by the Szczecin Regional Court for having been lodged out of time. 22. On 17 March 2005 the applicant and her husband paid PLN 6,519 to the municipality, the amount being the difference between the price of PLN 11,015 as determined by the judgment and PLN 4,496, the amount of court costs they had borne in the connection with the civil proceedings. 23. In 2005 and 2006 the applicant and her husband, referring to this judgment, called the municipality to sell the property to them, but to no avail. 24. By a judgment of 14 May 2007 the Szczecin District Court held that the statutory conjugal property of the applicant and her husband created ex lege by their marriage on 6 January 1979 had been replaced by a separate marital property regime as from 1 January 2004. 25. On 29 February 2008 the applicant and her husband lodged a civil action against the Szczecin Municipality with the civil court requesting that steps be taken by that court to put right the discrepancies between the entry in the land register and the actual ownership of the plot (powództwo o uzgodnienie ksiçgi wieczystej z rzeczywistym stanem prawnym). They referred to the judgment of the Regional Court, summarised in paragraphs 19 and 20 above and requested that the State Treasury be listed as owner of the land concerned. 26. The applicants also submitted an alternative claim asking the court to order the State Treasury represented by the Mayor of Szczecin to sell the property to them. The Mayor was invited to participate in the proceedings. 27. The municipality argued before the court that it did not own the land. As the land was owned by the State Treasury, the municipality could not sell it. 28. On 15 September 2008 the Szczecin District Court dismissed the claim. Subsequently, on 27 March 2009 the Regional Court quashed this judgment on formal grounds and ordered that the case should be re-examined. 29. On 30 July 2009 the Szczecin District Court dismissed the claim against the State Treasury – the Mayor of Szczecin (pko Skarbowi Państwa – Prezydentowi Miasta Szczecina) and against the municipality of Szczecin (pko Gminie Miasto Szczecin). It noted that the relevant land register listed the State Treasury as the owner of the plot. The land register could only be amended on the basis of an administrative decision issued by the Governor on the basis of section 18(1) of the Local Self-Government Act of 10 May 1990 ("the 1990 Act") confirming the ex lege transfer of ownership from the State Treasury to the local municipality on the basis of that Act (see paragraph 36 below). The Governor had never given a relevant administrative decision. The civil court had no jurisdiction to order administrative bodies to issue administrative decisions. In the absence of such a decision the ex lege transfer of ownership to the municipality provided for by law could not become operative. In the absence of such a transfer certified by a decision, the State Treasury remained the land’s owner. It was therefore impossible for the court to order the municipality to sell the plot to the claimant or to amend the land register in such a manner as to list the municipality as the owner. The judgment given in 2004 was not res iudicata towards the State Treasury as it was the municipality who had been the defendant in these proceedings. 30. The claimants appealed. They argued that they had already specified before the first-instance court that the claim was directed against both the State Treasury and the municipality of Szczecin. 31. During the hearing before the appeal court the lawyer representing the applicant and her husband stated that he had corrected the content of the alternative claim (as regards the entity who was supposed to make a declaration of intent) already during the proceedings before the court of first instance. 32. The applicant’s appeal was dismissed on 4 March 2010 by the Szczecin Regional Court. The court shared the conclusions of the lower court. It was of the view that the claimants had not made it sufficiently clear that the alternative claim had been directed against both the State Treasury and the municipality. Despite the fact that the plaintiffs had pointed out the mistake in their statement of claim which had been addressed against the State Treasury, the court could not rectify that mistake ex officio. 33. The Supreme Court refused to entertain the cassation appeal against this judgment by a decision of 23 February 2011.