jml13060
23.09.04, 13:06
FOURTH SECTION
CASE OF SCHIRMER v. POLAND
(Application no. 68880/01)
JUDGMENT STRASBOURG 21 September 2004
This judgment will become final in the circumstances set out in Article 44 §
2 of the Convention. It may be subject to editorial revision.
In the case of Schirmer v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr M. Pellonpää,
Mrs V. Strážnická,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O'Boyle, Section Registrar,
Having deliberated in private on 31 August 2004,
Delivers the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
1. The case originated in an application (no. 68880/01) against the
Republic of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Ms Henryka Schirmer, a Polish national, who was born in 1915
and lives in Warsaw.
2. The Polish Government (“the Government”) were represented by their
Agent, Mr K. Drzewicki, and subsequently Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
3. The applicant complained under Article 1 of Protocol No. 1 about the
alleged interference with her right to the peaceful enjoyment of her
possessions. She submitted that the courts dismissed her claim for eviction
against a tenant who occupied an apartment she owned, despite the fact that
she had offered the tenant the lease of an alternative apartment.
4. The application was allocated to the Fourth Section of the Court (Rule
52 § 1 of the Rules of Court). Within that Section, the Chamber that would
consider the case (Article 27 § 1 of the Convention) was constituted as
provided in Rule 26 § 1.
5. On 12 March 2002 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the alleged breach of the
applicant's property rights to the Government. By a decision of 13 May 2003,
the Court declared the remainder of the application admissible.
THE FACTS
A. The circumstances of the case
6. In 1996 the applicant filed with the Warsaw District Court (sąd
rejonowy) an action in which she requested the eviction of Ms J. from a flat
she owned. She also claimed payment of overdue rent, in the amount of
4,371.17 Polish zlotys (PLN). She submitted that she had given notice of
termination of the lease contract after J's recurrent failure to pay the rent
on time. J. had been occupying the flat on the basis of an administrative
decision, given under a so-called special lease scheme (see § 18 below). This
administrative decision had created a protected tenancy contract between the
parties, on the basis of which controlled rent was to be paid by the tenant
and the tenancy could not be terminated by the owner.
7. In January 1999 the applicant, having offered Ms J. an alternative
flat, added a new eviction application, which was based on article 56 of the
Law on the Lease of Dwellings and Housing Allowances (Ustawa o najmie lokali
mieszkalnych i dodatkach mieszkaniowych). Subsequently, she withdrew the
claim related to her tenant's failure to pay the rent.
8. On 6 August 1999 the court gave judgment. It ordered Ms J. to pay
overdue rent in the amount of PLN 459,15 and dismissed the eviction
application. The court admitted that the applicant had offered J. an
alternative flat before seeking her eviction. It pointed out, however, that
Article 56 § 7 of the 1994 Law on the Lease of Dwellings provided that a flat
offered to a tenant as alternative lodging had to be owned by the person
seeking eviction (see § 20 below). However, the flat which the applicant had
offered J. was owned by a housing co-operative and the applicant had only a
limited right to it. The court considered that:
“The plaintiff has a co-operative quasi-proprietorial right to that flat,
which, although relatively extensive, is yet limited by a number of
provisions of the Co-operative Law and cannot be equated with ownership. This
court is bound by laws, and the relevant provision of the Law on the Lease of
Dwellings [concerning the requirements that an alternative dwelling had to
meet] is unequivocal.”
9. The court further considered that it was not empowered to assume that
the legislature had made the reference to mandatory ownership of the
alternative accommodation by mistake. Neither could it accept that this
reference should be understood as covering also the quasi-proprietorial co-
operative right to an apartment.
10. The court finally considered that, pursuant to the 1994 Law on the
Lease of Dwellings, eviction of a tenant, if preceded by the offer of an
alternative flat, was an exception to the general rule that an owner could
not evict a tenant who complied with his or her statutory duties.
Accordingly, the provisions covering such exceptions could not be given an
extensive interpretation.
11. In the same judgment the District Court discontinued the proceedings
in so far as they related to the withdrawn application.
12. The applicant appealed. She submitted that the Law on the Lease of
Dwellings should not have been interpreted in her case in the literal manner
proposed by the District Court. She argued that the main objective of the
provisions concerning eviction of tenants was to protect the property rights
of owners. On the other hand, those provisions were also aimed at
guaranteeing tenants an effective right to continued and peaceful enjoyment
of accommodation and thus required the owners to secure alternative flats for
them. In the light of that aim of the Law, the interpretation made by the
court had been too restrictive. As a result, only the rights of the tenant
were protected by the judgment under appeal, to the detriment of the owner's
rights. The applicant pointed out that the alternative lodging which she had
offered J. made it possible for her to enjoy peaceful accommodation. The
purpose of the provision applied in the case was essentially to secure the
position of tenant in an alternative dwelling and to prevent him or her being
evicted from it. The apartment offered by the applicant guaranteed such
certainty, notwithstanding the fact that she did not own that apartment, but
had another right in rem to it, close in its nature to ownership. For those
reasons the applicant considered that the dismissal of her eviction
application, which made it impossible for her to live in her own apartment,
amounted to an infringement of her property rights.
13. The applicant also resubmitted a declaration of the housing co-
operative by which it had agreed that the applicant's apartment be let to Ms
J. until the end of 2004, i.e. until the time-limit set by the 1994 Law on
Lease of Dwellings for the prolongation of the system of protected tenancies.
14. On 20 December 1999 the Warsaw Regional Court (sąd okręgowy) dismissed
the applicant's appeal. It pointed out that the underlying purpose of a law
could be examined as an aid to its interpretation only if an analysis of a
literal meaning of its text proved ineffective. Having regard to the clear
wording of the provision at issue and to an unequivocal reference
to 'ownership' of the alternative accommodation, the court found that this
was not the case. The provision on which the District Court had relied
conferred special rights on the owner, in that she was entitled to offer
alternative accommodation to the tenant who had been fully complying with the
conditions of the tenancy contract. These special rights could not be
interpreted in an open-ended manner to the detriment of the tenant.
15. On 14 March 2000 the Warsaw