Information Note on the Court’s case-law No. 65
June 2004
Broniowski v. Poland [GC] - 31443/96
Judgment 22.6.2004 [GC]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Claim for compensatory land in respect of property abandoned as a result of boundary changes following the Second World War: violation
Facts: Following the Second World War, the Polish State undertook to compensate persons who had been “repatriated” from the so-called“territories beyond the Bug river”, which no longer formed part of Poland, in respect of property which they had been forced to abandon there. Such persons were entitled to have the value of the abandoned property deducted either from the price of immovable property purchased from the State or from the fee for “perpetual use” (a maximum period of 99 years) of State property. The estimated number of claimants was in the high tens of thousands. In 1968, the applicant’s mother inherited the estate of his grandmother, who had abandoned a plot of land and a house when repatriated. The applicant’s mother was subsequently granted the right of “perpetual use” of a plot of State land at a fee of PLZ 392 per year. For the purposes of compensation the value of the abandoned property was fixed at PLZ 532,260 and was offset against the total fee for “perpetual use” (PLZ38,808). After inheriting his mother’s estate, the applicant requested payment of the remainder of the compensation due. He was informed that as a result of the enactment of the Local Self-Government Act in 1990, by which most State land had been transferred to the local authorities, it was not possible to satisfy his claim. In 1994, the Supreme Administrative Court dismissed the applicant’s complaint about the Government’s alleged inactivity in failing to introduce legislation dealing with such claims. Between 1993 and 2001, several laws were passed which further reduced the already small stock of property designated for compensating repatriated persons. In December 2002, the Constitutional Court declared unconstitutional various statutory provisions restricting the possibility of satisfying entitlement to compensation for abandoned property. The court considered that by excluding particular types of State-owned land, the legislation had rendered the “right to credit” illusory. In practice, claimants had to participate in auctions of State-owned property and were frequently excluded as a result of additional conditions being imposed. Furthermore, following the Constitutional Court’s judgment the State Agricultural and Military Property Agencies suspended auctions pending the adoption of new legislation. Subsequently, a law of December 2003 provided that the State’s obligations towards persons who, like the applicant, had obtained some compensatory property under the previous statutes, were considered to have been discharged.
Law: Scope of the case – The sole issue was whether there had been a violation of Article 1 of Protocol No. 1 on account of the State’s acts and omissions in relation to implementation of the applicant’s entitlement to compensatory property, vested in him by domestic legislation at the time of entry into force of the Protocol and subsisting at the time of lodging his application.
Article 1 of Protocol No. 1 – The Court had found in its admissibility decision that the applicant had a proprietary interest eligible for protection under this provision and since then the Constitutional Court and the Supreme Court had regarded the “right to credit” as a property right. The Court therefore confirmed its conclusion that the right constituted a “possession”. As to the scope and content of the right, at the time of entry into force of the Protocol and of lodging of the application the law had provided for the value of abandoned property to be offset against, inter alia, the fee for a right of perpetual use, with any outstanding amount being offset against other specified types of property. The applicant’s “possessions” therefore comprised the entitlement to obtain further compensatory property. Having regard to the complexity of the issues involved, the property right in question could not be classified in a precise category and it was appropriate to examine the case in the light of the general rule of peaceful enjoyment of possessions. Furthermore, whether the case was analysed in terms of a positive duty or an interference which required to be justified, the applicable criteria did not differ in substance: a fair balance had to be struck between the interests of the individual and those of the community. The mutual interrelation of the alleged omissions and acts that might be regarded as “interferences” made it difficult to classify them in a single precise category and, in the particular circumstances of the case, it was unnecessary to do so.
Lawfulness: The restrictions on the applicant’s rights were based on legislation and although the Constitutional Court had found the provisions to be incompatible with the rule of law and the protection of property rights, those findings and their consequences were considerations to be taken into account in determining whether a fair balance had been struck. The Court therefore proceeded on the assumption that any interference was “provided for by law”.
Legitimate aim: The State’s aims were to reintroduce local self-government, restructure the agricultural system and generate financial means for the modernisation of military institutions. In the context of the major transitions undergone by Poland in recent years, it was necessary for the authorities to resolve such issues. The Court therefore accepted that it was legitimate for the respondent State to take measures designed to achieve those aims.
Fair balance: (i) the background – The State had had to deal with an exceptionally difficult situation, involving complex, large-scale policy decisions, and the number and value of the claims involved were factors to be taken into account. Yet, notwithstanding the social and economic constraints, the State had confirmed its obligations to claimants after ratification of Protocol No. 1 and this was relevant to its margin of appreciation.
(ii) the conduct of the authorities – At the beginning of the period under consideration the applicant was entitled to compensatory property in respect of the value of the remainder of the abandoned property. However, implementation was almost impossible, as the State Treasury had little land left following the transfer of property to the local authorities. As a result of further legislative measures, the applicant’s right was gradually all but wiped out, so that while it still existed in theory, it had been rendered illusory, as the Constitutional Court had found. The suspension of auctions by two State agencies after that court’s judgment was a deliberate attempt to prevent the implementation of a final and enforceable judgment. It was tolerated by the executive and legislature and could not be explained in terms of any legitimate public interest; indeed, it was capable of undermining the credibility and authority of the judiciary. Another material factor was the entry into force of the law of December 2003, which discharged the State’s obligation where partial compensation had been received. (iii) the conduct of the applicant – Although the applicant had not participated in any auction, he was not responsible for and had not contributed to the state of affairs of which he was complaining. Bearing in mind the risks inherent in the bidding process, the State’s obstructive action and inaction meant that the auction procedure could not be regarded as an “effective” or “adequate” means for the applicant to realise his entitlement to compensation.
(iv) conclusion as to fair balance – The Court accepted that the radical reform of the country’s political and economic system and its financial situation might justify stringent limitations on compensation for claimants but found that no satisfactory grounds had been adduced to justify the extent to which the State had failed over many years to implement an entitlement conferred on claimants. The rule of law requires that States ensure the legal and practical conditions for the implementation of laws and it was therefore incumbent on the authorities to remove the incompatibility between the letter of the law and the State-operated practice which hindered the effective exercise of the applicant’s rights. By imposing successive limitations on the exercise of the applicant’s right to credit, and by applying the practices that made it unenforceable and unusable in practice, the authorities had destroyed the very essence of the right. Moreover, the applicant’s situation was compounded by the fact that his practically unenforceable entitlement had been legally extinguished by the 2003 law. In principle, compensation for expropriation must be reasonably related to the value of the property and since the Government accepted that the applicant’s family had received only 2% of the compensation due, there was no cogent reason why the applicant should be deprived of the possibility of obtaining at least a proportion of his entitlement. In conclusion, the applicant had had to bear a disproportionate and excessive burden which could not be justified in terms of the legitimate general community interest pursued by the authorities.
Conclusion: violation (unanimously).
Articles 46 and 41 – It was inherent in the Court’s findings that the violation of the applicant’s right originated in a widespread problem which resulted from a malfunctioning of domestic legislation and administrative practice and which affected a large number of people. Indeed, the systemic nature of the problem had been recognised by the domestic courts. It followed that the deficiencies in national law and practice identified in the applicant’s case might give rise to numerous well-founded applications. The Committee of Ministers had invited the Court (Resolution DH(2004)3) to identify such systemic problems in its judgments and had recommended that in such circumstances the Contracting States should set up effective remedies in order to avoid repetitive cases being brought before the Court. Under Article 41, States are obliged not only to pay sums awarded as just satisfaction but also to select, subject to the Committee of Ministers’ supervision, the general and individual measures to be adopted in order to put an end to the violation and to redress the effects as far as possible. While it is in principle not for the Court to determine what remedial measures may be appropriate under Article 46, in view of the systemic situation which it had identified, general measures at national level were undoubtedly called for and the measures had to be such as to remedy the systemic defect so as to avoid the Convention system being overburdened with large numbers of applications deriving from the same cause. Thus, the measures ought to include a scheme offering redress to those affected, either by removing any hindrance to the implementation of the claimants’ right or by providing equivalent redress.
The Court reserved the question of just satisfaction for pecuniary and non-pecuniary damage in the present case. It made an award in respect of costs and expenses.
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This summary by the Registry does not bind the Court.
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