Last Updated on November 5, 2019 by LawEuro
FIRST SECTION
DECISION
Application no.12792/13
Aurelia WYSOWSKA
against Poland
The European Court of Human Rights (First Section), sitting on 23 January 2018 as a Chamber composed of:
Linos-Alexandre Sicilianos, President,
Kristina Pardalos,
Aleš Pejchal,
Krzysztof Wojtyczek,
Armen Harutyunyan,
Pauliine Koskelo,
Jovan Ilievski, judges,
and Renata Degener, DeputySection Registrar,
Having regard to the above application lodged on 13 February 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
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.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Facts before 1 May 1993
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.
2. Facts after 1 May 1993
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.
(a) Inheritance proceedings
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 first‑instance 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.
(b) Proceedings for compensation for property abandoned in territory beyond the Bug River
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.
B. Relevant domestic and international law and practice
1. Civil Code of 1964
(a) Transitional provisions
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.
(b) Principles of community life
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.”
(c) Inheritance 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. …”
2. Austrian Civil Code
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.
3. European Convention on the Legal Status of Children born out of Wedlock of 15 October 1975
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.”
4. The Vienna Convention of 1969 on the Law of Treaties
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.”
COMPLAINT
38. The applicant complained under Article 1 of Protocol No. 1 to the Convention and Article 14 of the Convention that she had not been able to inherit her natural father’s estate because she had been born out of wedlock.
THE LAW
39. The applicant complained under Article 1 of Protocol No. 1 to the Convention and Article 14 of the Convention that because she had been born out of wedlock she had not been able to inherit her natural father’s estate. Article 1 of Protocol No. 1 and Article 14 of the Convention provide as follows:
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Article 14 of the Convention
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. The parties’ submissions
40. The Government firstly argued that the Polish authorities could not be held responsible for any acts and omissions which had taken place before 10 October 1994, the date on which Protocol No. 1 had entered into force in respect of Poland. In their view, examining the substance of the application would give retroactive applicability to the Convention, which would be against the general principle of non-retroactivity provided for by Article 28 of the Vienna Convention on the Law of Treaties.
41. In their opinion the situation complained of by the applicant, that is, the opening of the succession, which was relevant for her property rights, had taken place on 28 September 1944 (the date of W.B.’s death). Under domestic law any rights were acquired when a person died and a subsequent decision on refusing the acquisition of an estate was only declaratory. Any subsequent events and decisions by the authorities had not changed the applicant’s legal situation.
42. The Government also noted that at the relevant time similar regulations had been in force in most European countries. Furthermore, all other cases concerning discrimination against children born out of wedlock which had been examined so far by the Court had concerned successions opened after the Convention had entered into force in respect of those States.
43. Secondly, the Government maintained that the application was incompatible ratione materiae, as at the material time the applicant had not had any property right, legitimate expectation or substantive interest eligible for protection under Article 1 of Protocol No 1. In view of the fact that the applicant’s father had died on 28 September 1944 and that the date of the deceased’s death was decisive for the establishment of succession rights, the applicant had not had any right to property, either at the material time or later.
44. They concluded that the list of heirs had been legally established at the time of the death and that even if the Court had temporal jurisdiction to examine the application the applicant did not have any right to acquire her natural father’s property.
45. The applicant did not comment on the Government’s objections.
B. The Court’s assessment
46. The Court reiterates that in accordance with its settled case-law Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Fábián v. Hungary [GC], no. 78117/13, §112, 5 September 2017 and Merger and Cros v. France, no. 68864/01, §38, 22 December 2004).
47. In the present case therefore the Court needs to determine firstly whether the applicant’s complaint about her inability to inherit her natural father’s estate falls within the ambit of Article 1 of Protocol No. 1 to the Convention.
48. In this context the Court points out that the Convention institutions have consistently held that Article 1 of Protocol No. 1 does not guarantee the right to acquire possessions, in particular on intestacy or through voluntary dispositions (see, mutatis mutandis, Marckx v. Belgium, 13 June 1979, § 50, Series A no. 31; Merger and Cros, cited above, § 37; and Fabris v. France [GC], no. 16574/08, § 50, ECHR 2013 (extracts)). However, “possessions” within the meaning of that provision can be either “existing possessions” or assets, including claims, in respect of which an applicant can argue that he has at least a “legitimate expectation” that they will be realised (see Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 69, ECHR 2002‑VII)
49. The Court observes that the applicant’s natural father W.B. died on 28 September 1944 (see paragraph 6 above). According to the relevant provisions of the Polish Civil Code, and as maintained by the Government, the succession is opened on the date of the deceased’s death. That date is also relevant for establishing the pertinent law applicable to the inheritance proceedings and, consequently, the succession rights of any potential heirs (see paragraphs 29, 32, 41 and 43 above).
50. In the present case, as established by the domestic courts, at the time of W.B.’s death, the applicant had no succession rights in respect of his estate on account of her being born out of wedlock. In particular, the Cracow District Court held that the relevant law applicable to the proceedings was Article 754 of the ABGB, pursuant to which illegitimate children could not inherit from a father who had died intestate (see paragraph 19 above). The Cracow Regional Court further endorsed that line of reasoning, holding that there was no doubt that Article 754 of the ABGB was applicable to the proceedings (see paragraph 21 above). The Court also notes that the applicant was not formally recognised as W.B’s daughter until 2007 (see, paragraph 9 above).
51. In that connection, the present case resembles that of Alboize-Barthes and Alboize-Montezume v. France (see, (dec.) no. 44421/04, 21 October 2008), in which Article 1 of Protocol No. 1 was found to be inapplicable to similar complaints. The Court held in that case that the liquidation of the applicants’ father’s estate – in 1955, and thus well before their filiation had been established – precluded them from asserting inheritance rights to their late father’s estate and claiming title to a “possession”.
52. The Court accordingly concludes that the applicant did not have a sufficient proprietary interest in respect of W.B.’s estate to constitute a “possession” within the meaning of Article 1 of Protocol No. 1 (compare and contrast Merger and Cros, cited above, § 32, and Inze v. Austria, 28 October 1987, § 38, Series A no. 126 )
53. Having regard to the finding that Article 1 of Protocol No. 1 is inapplicable, the Court further holds that Article 14 of the Convention cannot apply in the present case.
54. In view of the above conclusions the Court does not need to examine further the objection raised by the Government as to the application being incompatible ratione temporis.
55. It follows that the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 (a), and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 February 2018.
Renata Degener Linos-Alexandre Sicilianos
Deputy Registrar President
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