FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45320/99 
by Renata MCKAY-KOPECKA 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 19 September 2006 as a Chamber composed of

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr M. Pellonpää
 Mr K. Traja
 Mr L. Garlicki
 Ms L. Mijović, 
 Mr J. Šikuta, judges,

and Mr T.L. Early, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 1 July 1998,

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

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.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  The flat and the events of May 1996

Since 1986 the applicant had been living with her uncle E.B. in a one-room 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.

a.  The applicant’s submissions

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.

b.  The Government’s submissions

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 co-operative.

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 sister-in-law 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 sister-in-law. 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.

2.  The criminal proceedings against the police officers

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 McKay-Kopecka’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.

In view of the circumstances of the case there are no grounds for a conclusion that the actions of the police officers resulted from an abuse of power or a failure to fulfil obligations.”

3.  Other court proceedings

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.

B.  Relevant domestic law

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.”

COMPLAINTS

1.  The applicant complained under Article 3 of the Convention that she had been humiliated in the presence of police officers who had, moreover, failed to prevent this.

2.  She also complained that the refusal of the prosecution service to prosecute the police officers was in breach of Article 6 since the refusal made it impossible for her to sue them for compensation in the civil courts. In this connection, the applicant submitted that the Polish legislation in force at the relevant time required a conviction of public officials before an award of compensation for damage caused by them could be made.

3.  Finally, the applicant complained under Article 8 of the Convention about a breach of her right to respect for her private life and home. In this connection, she submitted that the actions of the police officers between 7 and 14 May 1996 had not been proportionate to the legitimate aim pursued. The applicant referred to the case of McLeod v. the United Kingdom of 23 November 1998. The applicant further complained that the police had not protected her interests; in consequence, she had to leave the flat on 20 May 1996.

THE LAW

1.  The applicant complained that the police officers had failed to prevent and stop the humiliation to which she was subjected in their presence, in breach of Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see, for example, the Raninen v. Finland judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, pp. 2821-22, § 55, Kudła v. Poland [GC], no. 30210/96, § 99, ECHR 2000-XI).

The Court observes that the events as described by the applicant are contested by the Government. Her allegations were also dismissed as totally unsubstantiated by the prosecution authorities in the subsequent proceedings instituted at the applicant’s request.

Consequently, on the basis of the evidence before it and assessing the relevant facts as a whole, the Court does not find it established that the applicant was subjected, in the presence of the police officers and in particular with their acquiescence or connivance, to ill-treatment such as to engage the responsibility of the State under Article 3 of the Convention.

It follows that the complaint under Article 3 is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must therefore be rejected in accordance with Article 35 § 4.

2.  The second complaint related to the refusal of the prosecution service to prosecute the police officers. The applicant further complained that this had deprived her of the possibility to sue the police officers for damage caused by them in performance of the public duty.

In so far as the applicant complained about the failure to prosecute the police officers concerned, the Court recalls that the Convention does not guarantee a right to have criminal proceedings instituted against third persons or to have such persons convicted (see, Dziedzic v. Poland, (dec.) no. 50428/99, 25 November 2003). The Court notes that the domestic prosecution authorities examined on several occasions the applicant’s allegations against the police officers and found that they had not committed an offence.

Furthermore, the Court considers that the second part of her complaint is manifestly ill-founded as it was open to the applicant to lodge a civil claim for compensation under Article 417 of the Civil Code. The applicant did not lodge such a claim.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3.  The applicant further complained that the events of the case gave rise to a violation of Article 8 of the Convention as the actions of the police in May 1996 were in breach of her right to respect for her family life and home. Article 8 provides:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A.  The parties’ submissions

The Government submitted that the applicant’s allegations against the police officers and her version of events were unsubstantiated and had not been confirmed by the materials in the case file. The police officers had intervened at the request of the applicant, M.M., or neighbours who had been disturbed by the events taking place in the corridor of the house. At no stage during their intervention did the police officers request the applicant to leave the flat in order to allow M.M. to take possession of it. Their only duty had been to inspect the registered address of the applicant as they had been informed by the president of the housing co-operative that the applicant had been occupying the flat illegally since she was not registered there. The Government concluded that although the scope of Article 8 of the Convention was not limited to negative obligations, the circumstances of the present case had not required any positive action to be taken by the authorities as the events described by the applicant had not unfolded as alleged.

The applicant submitted that the police officers had been acting in such a way that she had been forced to leave the flat. She argued that the means employed by the police had been disproportionate to the legitimate aim pursued. The applicant further maintained that the authorities had not protected her effectively since she had been forced to leave the flat and her belongings had been removed by M.M. In the applicant’s opinion, that failure violated the State’s positive obligations designed to secure respect for private life including, in the instant case, in the sphere of the relations between individuals.

B.  The Court’s assessment

1.  Whether the flat in question was the applicant’s “home” within the meaning of Article 8 of the Convention

As a preliminary issue the Court will examine the Government’s objection that the flat in question cannot be regarded as the applicant’s “home” within the meaning of Article 8 of the Convention.

The Government submitted that the applicant had not been living in the flat on a permanent basis as she had mostly been abroad. At the time of the events in dispute she had not been formally registered as occupying the flat and had been aware that M.M., who was the rightful owner, did not want her to live there any longer.

The applicant contested this view. She maintained that the flat in Warsaw was her home within the meaning of the Convention despite the fact that she had often been travelling to and from the United States of America. She had been living there since 1986 and it was her only place of residence during her stays in Poland. All her belongings were in the flat.

The Court recalls that the concept of “home” within the meaning of Article 8 is not limited to those which are lawfully occupied or which have been lawfully established. “Home” is an autonomous concept which does not depend on the classification under domestic law. Whether or not a particular habitation constitutes a “home” which attracts the protection of Article 8 § 1 will depend on the factual circumstances, namely the existence of sufficient and continuous links with a specific place (see the following authorities: Buckley v. the United Kingdom, judgment of 25 September 1996, Reports 1996-IV, §§ 52-54, and Commission’s report of 11 January 1995, § 63; Gillow v. the United Kingdom, judgment of 24 November 1986, Series A no. 109, § 46; Wiggins v. the United Kingdom, no. 7456/76, Commission decision of 8 February 1978, Decisions and Reports (DR) 13, p. 40).

In the light of the above and considering the particular circumstances of the case, the Court accepts that even though the applicant had often been absent, she retained sufficient continuing links with the flat in Warsaw at the time of the events for it to be considered her “home” for the purposes of Article 8 of the Convention.

2.  Compliance with Article 8

The Court firstly notes that details of the events complained of by the applicant have not been supported by any documents and have been contested by the Government.

On the basis of the documents before it the Court finds it established that on 7 May 1996 police officers were instructed to inspect the registered address of the person who lived in the flat in question. Their intervention was prompted by the letter of the president of the housing co-operative. The information provided by him that the applicant occupied the flat without being registered there must have been taken seriously by the police as the housing co-operative owned the flat and the failure of an individual to register his/her address was an offence punishable under Article 147 of the Petty Offences Code (see the domestic law section above). The police were also called to intervene by M.M. who apparently had a permanent place of residence registered in the flat. Thus it cannot be said that the police’s arrival on 7 May 1996 and the inspection of the applicant’s registered address lacked a legal basis. The police officers entered the premises with the consent of the applicant who also requested them not to leave as she was afraid of M.M. and her party. It also appears that both the Government and the applicant agreed that the police officers had not effectively participated in removing either the applicant or her belongings from the flat and that they had not used any physical force.

The next intervention of the police took place on 9 May 1996 when the police were notified that a burglary had been committed. The Court finds it impossible to establish on the basis of the evidence before it that the subsequent events had taken place according to the applicant’s allegations, in particular that the police officers arrived at the flat together with M.M., entered the apartment, prevented the applicant from speaking to her brother and did nothing to prevent the persons who accompanied M.M. from insulting her. As follows from the domestic authorities’ findings, upon their arrival the police officers discovered that the applicant, with the help of a locksmith, had removed the locks. However, they established that the flat had not been burgled. They remained at the scene in order to keep the peace, given that M.M. had in the meantime arrived and the parties were obviously at loggerheads.

As regards the applicant’s complaints that the police had intervened on 12 and 14 May 1996 the Court notes that those allegations are totally unsubstantiated. The applicant failed to provide any evidence of the police’s intervention on those dates; moreover, there is no evidence that the applicant made any complaints about those events in the criminal proceedings against the police officers.

Even assuming that there had been an interference within the meaning of Article 8, in the particular circumstances of the case the Court sees no reason to find that the police officers’ actions were not “in accordance with the law” and were disproportionate to the legitimate aims pursued, namely the prevention of crime and the protection of the rights and freedoms of others. In particular, even assuming that during the intervention of 7 May 1996 the police officers believed that M.M. was the rightful owner of the flat, the Court is unable to conclude on the basis of the documents before it that their arrival was aimed at removing the applicant from the flat and installing M.M. in her stead. Moreover, the applicant’s complaints should be examined in the light of the complex and evolving chain of events of May 1996, during which the applicant and M.M. were in dispute and involved the police on many occasions. The domestic authorities were faced with a heated dispute between the applicant and M.M., who were both assisted by other persons, including private security agents. That dispute took place in a house occupied by many families. The large number of persons involved, some of them allegedly aggressive or armed, made the situation particularly difficult. The police officers could reasonably believe that their intervention and presence were necessary to keep the peace. The feeling that the events might get out of hand and descend into violence was shared by both M.M. and the applicant, who at least on one occasion admitted having requested the police to remain at the scene (compare and contrast, the McLeod v. the United Kingdom judgment, Reports 1998-VII, p. 2792, § 57).

As regards the positive obligations inherent in an effective respect for private or family life, the Court again considers that the applicant failed to substantiate in what way the domestic authorities had failed to take action to protect her in her conflict with M.M. In particular, the alleged use of force against the applicant by individuals hired by M.M. or the police’s alleged refusal to take action on 20 May 1996 when her property had been removed by M.M have not been confirmed by any documents or domestic authorities’ decisions.

For the above reasons, there is no appearance of a breach of Article 8 of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

T.L. Early Nicolas Bratza 
 Registrar President

MCKAY-KOPECKA v. POLAND DECISION


MCKAY-KOPECKA v. POLAND DECISION