CASE OF SZWAGRUN-BAURYCZA v. POLAND
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award
Nicolas Bratza
9. On 3 November 1975 the applicant’s parents requested a court to declare that they had acquired by prescription ownership of a plot of land which had been in their possession for more than 15 years. It appears that they were summoned by the court to identify the successors of the original owners and to indicate their addresses. The participation of these persons in the proceedings was necessary to preclude them from invoking their rights after the matter had been decided upon. 10. As the applicant’s parents had failed to establish the addresses of all the persons potentially concerned, the proceedings were stayed on 31 July 1976. The number of persons potentially affected by the outcome of the proceedings amounted at that time to thirty-eight, some of whom resided abroad. 11. On unspecified dates in 1977 the applicant’s parents died and the applicant and her sister inherited their estate. 12. Between 1975 and 1990, some of the original owners of the property or their successors died and the number of persons potentially affected by the outcome of the proceedings (as further successors of the original owners) increased. 13. On 15 October 1990 the applicant, being unable to identify all the successors of the original owners or to indicate their addresses, requested the Ostrów Wielkopolski District Court to publish a press notice summoning persons potentially interested in the outcome of the case and to resume the proceedings. 14. On 17 September 1993 the court decided to appoint a court officer (curator absenti) to represent persons potentially affected by the proceedings but whose addresses were unknown. The court also ordered the publication of a press notice to summon other persons potentially concerned. 15. At a hearing held on 29 April 1994 the court found that some of the other persons already involved in the proceedings had died. The court again instructed the applicant to indicate the addresses of their successors. The applicant failed to do so and by a decision of 13 January 1997 the court refused to resume the proceedings. 16. On 22 February 1999 the applicant again requested the court to resume the proceedings on the merits. Apparently, by that stage fifty-three persons were potentially interested in the outcome of the proceedings. 17. On 25 March 1999 the Ostrów District Court refused to resume the proceedings in view of the applicant’s failure to submit the addresses of all persons potentially affected. The court also decided to discontinue the proceedings, finding that more than three years had elapsed since the date of the last procedural step in the case. 18. On 2 April 1999 the applicant appealed against this decision and on 27 October 1999 the Kalisz Regional Court partly allowed her appeal. In particular, the court found that there were no grounds to discontinue the proceedings as some procedural steps had been taken during the preceding three years even though technically the proceedings had been stayed. Nevertheless, the court decided that the proceedings should remain stayed in view of the applicant’s failure to comply with the court order. 19. On 3 March 1999 the Ostrów District Court again summoned the applicant to indicate the current address of one of the potential litigants and the legal successors of another. It appears that the applicant did not file with the court the addresses requested and on 2 February 2000 the trial court rendered a decision discontinuing the proceedings. The applicant appealed. On an unspecified date her appeal was allowed. 20. On 18 January 2002 the applicant was again summoned to submit the names and addresses of potential litigants, including one allegedly living in Ukraine, on pain of a stay of the proceedings. On 19 February 2002 the court stayed the proceedings, having regard to the applicant’s failure to indicate the legal successors of five litigants and to give the current addresses of a further seven litigants. 21. On 21 February 2005 the court discontinued the proceedings, having regard to the fact that the applicant had failed to request, within three years, that the stayed proceedings be resumed. 22. On 21 March 2005 the applicant appealed and objected to the obligation to identify and find the legal successors of former owners and to indicate their addresses. She submitted that the case would have been terminated long ago had the appointment of the curator absenti and the publication of press notice been properly used by the court. She requested the court to publish a press notice or appoint a curator again. 23. On 31 May 2005 the court summoned her to pay PLN 160 by way or a court fee for the appeal, to identify the legal successors of another six parties who had died and to submit fifty copies of her appeal. The applicant refused to pay the fee, arguing that she had paid this amount several times, but that this had not led to any progress in the resolution of the merits of the case. She also refused to identify the legal successors or addresses of sixteen persons referred to in the decision of 21 February and the summons of 31 May 2005 and reiterated that she had already repeatedly informed the court that she was unable to do so. She referred to her request to publish a press notice to summon potential parties to join the proceedings by way of a press notice. 24. On 15 June 2005 the court refused to entertain her appeal on the ground that she had refused to pay the court fee and refused to submit fifty copies of the appeal. 25. The applicant appealed against this decision, submitting that in the absence of the addresses of all potential litigants the requirement to submit fifty copies of her appeal was unreasonable because in any event these copies could not be served on them. 26. On 28 July 2005 the court summoned her to rectify her appeal by paying PLN 160, by submitting twenty six copies of the appeal, by indicating the legal successors of six deceased litigants and by giving the addresses of two further litigants. 27. In her pleadings of 12 August 2005 the applicant again submitted that publication of a press notice and the appointment of curator absenti provided for in Article 609 of the Code of Civil Procedure were specifically designated to address situations such as this which had arisen in her case. 28. On 12 August 2005 the court rejected her appeal against the decision of 15 June 2005, having regard to her failure to comply with the summons of 28 July 2005. 29. The applicant appealed against this decision, again submitting that she was unable to identify the names and addresses of the persons concerned. 30. On 21 September 2005 the court rejected her appeal on the ground that she had failed to pay a court fee in the amount of PLN 160 and to submit twenty six copies of her appeal. 31. Under Polish law, a request for a declaration that property had been acquired by prescription is examined in the so-called “non-litigious procedure”. However, the claimant is obliged to identify persons who are potentially affected by these proceedings, notably the original owners or their successors. Should these persons express their interest in the proceedings, they may be granted the status of a “party”. 32. If a claimant is objectively unable to identify persons who could be affected by the outcome of the proceedings, the court orders the publication of a press notice, summoning such persons to join the proceedings. If the identity of the persons is known but their current addresses cannot be established, the court shall appoint a court officer (curator absenti) to represent such persons. 33. Article 510 of the Code of Civil Procedure (Chapter on: Non-litigious proceedings: general provisions) provides as follows: § 1. Any person, whose rights and obligations are affected by the outcome of the proceedings, is an interested person; he or she may participate in the proceedings at any stage. If the person decides to participate, he or she becomes a party to the proceedings. An appeal is available against a refusal to be admitted as a party to the proceedings. § 2. If it turns out that a person concerned is not a party to the proceedings, the court will summon him or her to participate in them. Following the summons, a person becomes a party to the proceedings. If a need arises to appoint a court officer (curator absentis) to represent a party whose address is unknown, such appointment is made ex officio. 34. Article 524 § 2 of the Code of Civil Procedure (Non-litigious proceedings: general provisions) provides as follows: An interested person who has not participated in the proceedings terminated by a final decision on the merits, may request that these proceedings be reopened. Provisions on the reopening on the grounds of being deprived of the possibility to act shall apply. 35. Article 609 § 2 of the Code of Civil Procedure (Acquiring property by prescription) provides as follows: If a person who files a motion (for a declaration that property has been acquired by prescription) fails to indicate other interested persons, the decision (on the merits) may only be rendered after such persons are summoned by a press notice. A press notice may also be published in other circumstances where the court finds this necessary.