BRONIOWSKI v. POLAND

GRAND CHAMBER

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31443/96
by Jerzy BRONIOWSKI
against Poland

The European Court of Human Rights, sitting as a Grand Chamber composed of

MrL. Wildhaber, President,
MrC.L. Rozakis,
MrJ.-P. Costa,
MrG. Ress,
SirNicolas Bratza,
MrsE. Palm,
MrL. Caflisch,

MrsV. Strážnická,

MrV. Butkevych,

MrB. Zupančič,

MrM. Pellonpää,
MrsM. Tsatsa-Nikolovska,
MrA.B. Baka,
MrR. Maruste,
MrsS. Botoucharova,
MrS. Pavlovschi,
MrL. Garlicki, judges,
and Mr P.J. Mahoney, Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 12 March 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the decision of 26 March 2002 by which the Chamber of the Fourth Section to which the case had originally been assigned relinquished its jurisdiction in favour of the Grand Chamber (Article 30 of the Convention),

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the parties’ oral submissions at the hearing on 23 October 2002

Having deliberated on 23 October and 27 November 2002, takes the following decision, adopted on 19 December 2002:

THE FACTS

1.  The applicant, Mr Jerzy Broniowski, is a Polish national, who was born in 1944 and lives in Wieliczka, Poland. In the proceedings before the Court he is represented by Mr Z. Cichoń, a lawyer practising in Cracow and Mr W. Hermeliński, a lawyer practising in Warsaw, Poland. The respondent Government are represented by their Agent, Mr K. Drzewicki, of the Ministry of Foreign Affairs. At the oral hearing on 23 October 2002 the Agent of the Government was also assisted by Ms R. Kowalska, Ms M. Kosicka, Ms T. Bielska, Ms D. Błaszczyk and Mr K. Zaradkiewicz.

A.  Historical background

2.  The Eastern provinces of pre-war Poland were (and in dated usage still are) called “Borderlands” (“Kresy”). They included large areas of present-day Belarus and Ukraine and territories around Vilnius in what is now Lithuania.

Later, when after the Second World War Poland’s eastern border was fixed along the Bug River (whose central course formed part of the Curzon line), the “Borderlands” acquired the name of the “territories beyond the Bug River” (“ziemie zabużańskie”).

Those regions had been invaded by the USSR in September 1939.

3.  Following the Yalta and Potsdam conferences, where the new border between the Soviet Union and Poland along the Curzon line had been agreed, and subsequent agreements concluded between the Polish Committee of National Liberation (Polski Komitet Wyzwolenia Narodowego; “PKWN”) and the former Soviet Socialist Republics of Ukraine (on 9 September 1944), Belarus (on 9 September 1944) and Lithuania (on 22 September 1944) (“the Republican Agreements”) (umowy republikańskie), the Polish State took upon itself the obligation to compensate persons who were “repatriated” from the “territories beyond the Bug River” and had to abandon their property there. Such property is commonly called “property beyond the Bug River” (“mienie zabużańskie”).

4.  The Polish Government estimate that from 1944 to 1953 some 1,240,000 persons were “repatriated” under the provisions of the Republican Agreements. At the oral hearing, the parties agreed that the vast majority of repatriated persons had been compensated for loss of property caused by their repatriation (see also paragraph 26 below).

In that connection, the Government also stated that, on account of the delimitation of the Polish-Soviet state border – and despite the fact that Poland was “compensated” by the Allies with former German lands east of the Oder-Neisse line – Poland suffered a loss of territory amounting to 19.78%.

B.  The circumstances of the case

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

1.  Facts before 10 October 1994

6.  After the Second World War, the applicant’s grandmother was repatriated from Lwów (at present “Lviv” in the Ukraine).

On 19 August 1947 the State Repatriation Office (Państwowy Urząd Repatriacyjny) in Cracow issued a certificate attesting that she had owned a piece of real property in Lwów and that the property in question consisted of approximately 400 sq. m of land and a house with a surface area of 260 sq. m.

7.  On 11 June 1968 the Cracow District Court (Sąd Rejonowy) gave a decision declaring that the applicant’s mother had inherited the whole of her late mother’s property.

8.  On an unknown later date the applicant’s mother asked the Wieliczka Mayor to enable her to purchase the so-called right of “perpetual use” (prawo użytkowania wieczystego) of land owned by the State Treasury (see also paragraph 48 below).

9.  In September 1980 an expert from the Cracow Mayor’s Office made a report assessing the value of the property abandoned by the applicant’s grandmother in Lwów. The actual value was estimated at 1,949,560 old Polish zlotys (PLZ) but for the purposes of compensation due from the State the value was fixed at PLZ 532,260.

10.  On 25 March 1981 the Wieliczka Mayor issued a decision enabling the applicant’s mother to purchase the right of perpetual use of a plot of 467 sq. m situated in Wieliczka. The fee for perpetual use was PLZ 392 per year and the term of use was fixed for at least forty and a maximum of ninety-nine years. The compensation calculated by the expert in September 1980 was deducted from the total fee for use, which amounted to 38,808 PLZ (392 PLZ x 99 years). According to the applicant’s calculations (which have not been contested by the Government) the shortfall in compensation was 96% (if calculated with reference to PLZ 1,949,560).

11.  The applicant’s mother died on 3 November 1989. On 29 December 1989 the Cracow District Court gave a decision declaring that the applicant had inherited the whole of his late mother’s property.

12.  In 1992, on a date that has not been specified, the applicant sold the property that his mother had received from the State in 1981.

13.  On 15 September 1992 the applicant asked the Cracow District Office (Urząd Rejonowy) to grant him the remainder of the compensation for the property abandoned by his grandmother in Lwów. He stressed that the value of the compensatory property received by his late mother had been significantly lower than the value of the original property.

14.  In a letter of 16 June 1993 the Town Planning Division of the Cracow District Office informed the applicant that his claim had been entered in the relevant register under no. R/74/92. That letter further read, in so far as relevant:

“We would like to inform you that at present there is no possibility of satisfying your claim.... Section 81 of the Land Administration and Expropriation Act of 29 April 1985 became, for all practical purposes, a dead letter with the enactment of the Local Self-Government Act of 10 May 1990. [The enactment of that Act] resulted in land being transferred from the [Cracow branch of the] State Treasury to the Cracow Municipality. Consequently, the Head of the Cracow District Office who, under the applicable rules, is responsible for granting compensation, has no possibility of satisfying the claims submitted. It is expected that new legislation will envisage another form of compensation. We should accordingly inform you that your claim will be dealt with after a new statute has determined how to proceed with claims submitted by repatriated persons.”

15.  On 14 June 1994 the Cracow Governor’s Office (Urząd Wojewódzki) informed the applicant that the State Treasury had no land for the purposes of granting compensation for property abandoned in the territories beyond the Bug River.

16.  On 12 August 1994 the applicant filed a complaint with the Supreme Administrative Court (Naczelny Sąd Administracyjny), alleging inactivity on the part of the Government in that they had failed to introduce in Parliament legislation dealing with claims submitted by repatriated persons. He also asked for compensation in the form of State Treasury bonds.

2.  Facts after 10 October 1994

17.  On 12 October 1994 the Supreme Administrative Court rejected the applicant’s complaint. It found no indication of inactivity on the part of the state authorities because “the contrary transpired from the fact that the applicant had received replies from the Cracow District Office and the Cracow Governor’s Office”.

18.  On 31 August 1999, in connection with the entry into force of the Council of Ministers’ Ordinance of 13 January 1998 (see also paragraphs 36-37 below) the Cracow District Office transferred the applicant’s request of 15 September 1992 for the remainder of the compensation and the relevant case file to the Mayor of Wieliczka.

19.  On 11 April 2002 the Mayor of Wieliczka organised a competitive bid for property situated in Chorągwica being sold by the State Treasury. The bid was entered by 17 persons, all of whom were repatriated persons or their heirs. The applicant did not participate in the bid.

C.  Relevant domestic law and practice

1.  Honouring of the international treaty obligation to compensate repatriated persons

20.  The Republican Agreements (see also paragraph 3 above) were drafted in a similar way. Article 3 of each Agreement laid down rules concerning both the kind and the amount of property that repatriated persons could take with them upon evacuation and obliged the Contracting Parties to return to them the value of the property they had to abandon.

21.  Article 3 of the Agreement of 9 September 1944 between the Polish Committee of National Liberation and the Government of the Ukrainian Soviet Socialist Republic on the evacuation of Polish citizens from the territory of the Ukrainian SSR and of the Ukrainian population from the territory of Poland (“the relevant Republican Agreement”) provided, in so far as relevant:

“2.  Evacuated persons shall be allowed to take with them clothing, footwear, linen, bedding, foodstuffs, household goods, farming inventory stock, harnesses and other articles for household and agricultural use, up to a total weight of 2 metric tonnes per family, as well as any cattle and poultry belonging to the evacuated farm.

3.  Persons with specialised professions, such as workmen, craftsmen, doctors, artists and scholars, shall be accorded the right to take with them objects needed in the exercise of their professions.

4.  The following may not be taken upon evacuation:

(a)  cash, banknotes and gold and silver coins of any type, with the exception of Polish banknotes to a maximum amount of 1,000 zlotys per person, or Soviet currency to a  maximum amount of 1,000 roubles per person;

(b)  gold and platinum in alloy, powder or scrap form;

(c)  precious stones in unworked form;

(d)  works of art and antiques whenever they constitute a collection, or even as individual items, unless they are the evacuated person’s family property;

(e)  firearms (with the exception of hunting rifles) and military equipment;

(f)  photographs (other than personal photographs), charts and maps;

(g)  automobiles and motorcycles;

(h)  furniture, whether by rail or by motor vehicle, because of the transport problems caused by the war.

...

6.   The value of movable belongings left behind upon evacuation, and also of immovable property, shall be returned to the evacuated person on the basis of insurance valuations, in accordance with the applicable laws in the State of Poland and in the Ukrainian Soviet Socialist Republic as the case may be. In the absence of an insurance valuation, the value of movable and immovable property shall be assessed by the Plenipotentiaries and Representatives of the Parties. The Contracting Parties shall undertake to ensure that town and village houses vacated as a result of resettlement are made available to resettled persons on a priority basis.”

22.  On 21 July 1952 the Government of the Republic of Poland and the Governments of the Union of Soviet Socialist Republics, the Ukrainian Soviet Socialist Republic, the Belarus Soviet Socialist Republic and the Lithuanian Soviet Socialist Republic concluded an agreement on mutual settlement of accounts in connection with the evacuation of population groups and the delimitation of the Polish-Soviet state border (“the 1952 Pact”). Article 2 of the 1952 Pact stipulated:

“With a view to the complete and definitive mutual settlement of accounts for movable and immovable property, agricultural products and seed left on the territories of the Republic of Poland and of the USSR by persons evacuated and resettled in connection with the delimitation of the Polish-Soviet state border, the Government of the Republic of Poland undertake to pay the Government of the USSR the sum of 76 (seventy-six) million roubles.”

23.  From 1946 to the present day Polish law has provided that persons repatriated from the territories beyond the Bug River are entitled to have the value of the property abandoned as a result of the Second World War deducted either from the fee for the so-called “perpetual use” or from the price of immovable property purchased from the State Treasury.

24.  That provision has been repeated in several statutes, starting with the Decree of 6 December 1946 on the transfer from the State of non-agricultural property in the Regained Territories and the former Free City of Gdańsk (Dekret o przekazaniu przez Państwo nieruchomości położonych na Ziemiach Odzyskanych i w dawnym Wolnym Mieście Gdańsku).

The so-called “Regained Territories” (“Ziemie Odzyskane”) were former German territories east of the Oder-Neisse Line, with which – upon Stalin’s proposal – the victorious Allies compensated the Poles for the “territories beyond the Bug River” taken away from them by the former USSR.

Under the policy pursued at that time by the authorities, the “Regained Territories” and Gdańsk, after the expulsion of Germans residing there, were intended for the accommodation of Polish citizens “repatriated” from beyond the Curzon line. The repatriated persons had priority in purchasing land.

25.  Further decrees and statutes were enforced between 1952 and 1991.

In the 1990s, however, the authorities started to consider the possibility of enacting a single statute dealing with all forms of restitution of property, including claims for compensation for property abandoned by the repatriated persons (see also paragraphs 44-47 below).

26.  Some repatriated persons have been compensated in full, while others have not. That has depended on the current amount of land belonging to the State Treasury and on the willingness of the relevant local authorities to put land up for sale or to transfer the right of perpetual use. According to estimates cited in the Polish press after the Ministry for the Treasury, some 90,000 persons have not yet had their entitlements satisfied. The Polish Government, at the oral hearing, stated that some 60,000-70,000 persons were in such a situation.

27.  Various sources give different estimates of the value of duly registered claims.

The “All-Polish Association of Borderland Creditors of the State Treasury” (Ogólnopolskie Stowarzyszenie Kresowian Wierzycieli Skarbu Państwa) considers that the approximate value of claims is some 30 billion zlotys (which corresponds to some 7.53 billion euros). The All-Polish Agreement of Claimant Organisations (Ogólnopolskie Porozumienie Organizacji Rewindykacyjnych) estimates that value at 10 billion Polish zlotys (which corresponds to some 2.51 billion euros).

2.  The Land Administration and Expropriation Act of 29 April 1985 and the related ordinance

(a)  The 1985 Act

28.  From 29 April 1985 to 1 January 1998 the rules governing the administration of land held by the State Treasury and municipalities were laid down in the Land Administration and Expropriation Act of 29 April 1985 (the “1985 Land Administration Act”).

Section 81 of the 1985 Act dealt with entitlement to compensation for property abandoned in the “territories beyond the Bug River”. Paragraph 1 of that section in the version applicable from 10 October 1994 to 31 October 1997 read:

“1.  Persons who, in connection with the war that began in 1939 abandoned real property in territories which at present do not belong to the Polish State and who, by virtue of international treaties concluded by the State, are to obtain equivalent compensation for the property they abandoned abroad, shall have the value of the real property that has been abandoned deducted either from the fee for the right of perpetual use of land or from the price of a building plot and any houses, buildings or premises situated thereon.

...

4.  In the event of the death of an owner of real property abandoned abroad, the entitlement referred to in subsection 1 shall be conferred jointly on all his heirs in law or on the one [heir] designated by the entitled persons.

5.  The deduction of the value of real property abandoned abroad, as defined in subsection 1, shall be effected upon an application from a person entitled to it.

...”

(b)  The 1985 Ordinance

29.  Detailed rules relating to the assessment of the value to be deducted were set out in the Council of Ministers’ Ordinance of 16 September 1985 (as amended) on deduction of the value of real property abandoned abroad from the fees for perpetual use or from the price of a building plot and buildings situated thereon.

Paragraph 3 of that Ordinance, stipulated, in so far as relevant:

“If the value of the property [abandoned abroad] exceeds the price of the real property that has been sold..., the outstanding amount can be deducted from the fee for the right of perpetual use, or from the price of an industrial or commercial plot of land and any commercial or small-business establishments, buildings designed for use as workshops or ateliers, holiday homes or garages situated thereon.”

Paragraph 5 provided that a first-instance body of the local state administration that was competent to deal with town and country planning should issue a decision on the deduction of the value of property abandoned abroad. Paragraph 6 laid down detailed rules relating to the valuation of such properties.

3.  The Law of 21 August 1997 on Land Administration and the related ordinance

(a)  The 1997 Act

30.  On 1 January 1998 the 1985 Land Administration Act was repealed and the Law of 21 August 1997 on Land Administration (“the 1997 Land Administration Act”) (Ustawa o gospodarce nieruchomościami) entered into force.

Since then the obligation to compensate repatriated persons is laid down in section 212, which is phrased in similar terms to the repealed section 81 of the 1985 Land Administration Act. Section 212, in its relevant part, provides:

“1.  Persons who, in connection with the war that began in 1939, abandoned real property in territories which at present do not belong to the Polish State and who, by virtue of international treaties concluded by the State, were to obtain equivalent compensation for the property abandoned abroad, shall have the value of the real property that has been abandoned deducted from the fee for the right of perpetual use of land or from the price of a building plot and the State-owned buildings or premises situated thereon.

2.  If the value of the real property that has been abandoned [abroad] exceeds the value of real property acquired by way of the equivalent compensation referred to in subsection 1, the outstanding amount may be deducted from the fees for perpetual use, or from the price of a plot of land and a building designed for commercial purposes, or for use as an atelier, holiday home or garage, or of a plot of land designed for any of the above purposes.

...

4.  The deduction of the value of real property defined in subsection 1 shall be effected in favour of the owner of the property in question or a person designated by him who is his heir at law.

5.  In the event of the death of the owner of real property abandoned abroad, the entitlements referred to in subsection 1 shall be conferred jointly on all his heirs or on the one [heir] designated by the entitled persons.

...”

31.  However, section 213 states:

“Sections 204-212 of this Law shall not apply to property held by the Resources of the State Treasury’s Agricultural Property, unless the provisions relating to the administration of those Resources state otherwise.”

32.  On 5 July 2002 the Ombudsman (Rzecznik Praw Obywatelskich) put the issue of the constitutionality of sections 212(1) and 213 before the Constitutional Court (Trybunał Konstytucyjny) (see also paragraph 52 below).

(b)  The 1998 Ordinance

33.  The means of obtaining the deduction referred to in section 212 of the 1997 Land Administration Act are at present laid down in the Council of Ministers’ Ordinance of 13 January 1998 on the procedure for the deduction of the value of real property abandoned abroad from the price for title to real property or from the fees for perpetual use, and on the methods of assessing the value of such property (as amended) (Rozporządzenie Rady Ministrów w sprawie sposobu zaliczania wartości nieruchomości pozostawionych za granicą na pokrycie ceny sprzedaży nieruchomości lub opłat za użytkowanie wieczyste oraz sposobu ustalania wartości tych nieruchomości) (“the 1998 Ordinance”).

34.  Paragraph 4(1) of the 1998 Ordinance stipulates that the deduction in question must be effected on an application from the entitled person. The application must be made to the Mayor of the district (Starosta) in which the person resides. The Mayor keeps the register of claims submitted by repatriated persons.

Pursuant to paragraph 5(1), the Mayor must, within 30 days, issue a decision determining the value of the real property that has been abandoned abroad. Once such a decision is taken, the authorities responsible for handling claims submitted by repatriated persons cannot refuse to make the deduction (paragraph 6).

In practice, the acquisition of title to compensatory property or of the right of perpetual use may only be enforced through participation in a competitive bid organised by the relevant public authority. Repatriated persons are not given priority in purchasing land from the State.

Transitional provisions, in particular paragraph 12 of the 1998 Ordinance, stipulate that proceedings that have been initiated under the previous rules and not terminated are to be governed by the present Ordinance.

4.  The Local Self-Government Act of 10 May 1990

35.  A very significant reduction in the State Treasury’s land resources was brought about by legislative measures aimed at reforming the administrative structure of the State.

The Local Self-Government Act of 10 May 1990 (“the 1990 Act”) re-established municipalities and transferred to them powers that had previously been exercised solely by the local state administration. That included the relinquishment of control over public land and transfer of ownership of most of the State Treasury’s land to municipalities. Pursuant to section 5(1) of the 1990 Act, ownership of land which had previously been held by the State Treasury and which was within the administrative territory of a municipality was transferred to the municipality.

In consequence, the local state administration, while still responsible for handling claims submitted by repatriated persons, was left without sufficient land to satisfy all demands.

5.  The Law of 19 October 1991 on the administration of the State Treasury’s agricultural property (as amended)

36.  Until 29 December 1993, repatriated persons could seek to obtain compensatory property from the Resources of the State Treasury’s Agricultural Property (Zasoby Własności Rolnej Skarbu Państwa), under the provisions of the Law of 19 October 1991 on the administration of the State Treasury’s agricultural property (“the 1991 Act”). However, with the entry into force of the Law of 29 December 1993 on Amendments to the Law on the administration of the State Treasury’s agricultural property and to other statutes (Ustawa o zmianie ustawy o gospodarce nieruchomościami rolnymi Skarbu Państwa i innych ustaw) (“the 1993 Amendment”), that possibility was excluded.

Following that reform, section 17 of the 1991 Act is phrased as follows:

“As long as the forms of compensation for loss of property and the rules for the restitution of property to persons who, under section 81 of the 1985 Land Administration Act[1], have applied for deduction of the value of real property abandoned abroad in connection with the war that began in 1939 have not been determined in an autonomous statute, no such deduction shall be made from the price of property held by the Resources of the State Treasury’s Agricultural Property.”

37.  On 5 July 2002 the Ombudsman put the issue of the constitutionality of section 17 of the 1991 Act before the Constitutional Court (see also paragraph 52 below).

6.  The Law of 10 June 1994 on the administration of real property taken over by the State Treasury from the Army of the Russian Federation (as amended)

38.  Pursuant to section 4 read in conjunction with section 16 of the above-mentioned Law, repatriated persons must be given priority in acquiring such property.

39.  At the oral hearing, the Government admitted that, in reality, the property resources left by the Army of the Russian Federation had already been exhausted.

7.  The Law of 30 May 1996 (“the 1996 Act”) on the administration of certain portions of the State Treasury’s property and the Military Property Agency (as amended)

40.  The above-mentioned Act deals with the administration of military property belonging to the State, including land, industrial property, hotels, dwellings and commercial premises. The Military Property Agency may organise competitive bids for the sale of real property.

41.  Until 21 December 2001, under the general provisions of the 1996 Act, repatriated persons could seek to obtain compensatory property through participating in such bids. They did not have any priority over other bidders. However, with the entry into force of the Law of 21 December 2001 on Amendments to the Law on the organisation and work of the Council of Ministers and on the powers of ministers, to the Law on the branches of the executive and to other statutes (“the 2001 Amendment”) (Ustawa o zmianie ustawy o organizacji i trybie pracy Rady Ministrów oraz o zakresie działania ministrów, ustawy o działach administracji rządowej oraz o zmianie niektórych ustaw), the situation changed. Since then, no property administered by the Agency can be designated for the purposes of providing compensation for property abandoned beyond the Bug River

The amended section 31(4) of the 1996 Act at present reads:

“Article 212 of the Land Administration Act of 21 August 1997 does not apply to property mentioned in section 1(1) of this law”.

“Property” within the meaning of the latter provision is “the State Treasury’s property that is administered or used by any entity subordinate to, or supervised by, the Minister of National Defence and which does not serve the purposes of the functioning of such an entity.” That, for instance, includes land, commercial and industrial property, dwellings, sport facilities etc.

42.  On 5 July 2002 the Ombudsman put the issue of the constitutionality of that provision before the Constitutional Court (see also paragraph 52 below).

43.  However, before the entry into force of the 2001 Amendment, the authorities of the Military Property Agency issued an instruction on handling claims submitted by repatriated persons. The relevant part of that document read:

“In connection with the entry into force on 15 September 2001 of the provisions of the Council of Ministers’ Ordinance of 21 August 2001 amending the Ordinance on the procedure for the deduction of the value of real property abandoned abroad from the price for title to real property or from the fees for perpetual use, and on the methods of assessing the value of such property (Journal of Law No. 90, item 999), and with the questions submitted regarding the Agency’s responsibility for the settlement of the claims of the Bug River repatriates, the following was agreed:

1.  The Military Property Agency will not deduct the value of property abandoned abroad from the price for title to real property or from the fees for perpetual use.

2.  Offers submitted by Bug River repatriates in competitive bids without the payment of a deposit should be disregarded. If, after the deposit has been paid, and the competitive bid has been successful, the bidder asks for the deduction of the value of the land abandoned abroad from the price for title or from the fees for perpetual use, it should be assumed that the bidder has withdrawn from the conclusion of the contract, and the deposit is forfeited in favour of the Agency.

3.  In the event of the bidder in the above cases submitting a complaint concerning the competitive bid, the complaint should be immediately transmitted to the President of the Agency for settlement. Such complaints will not be taken into account.

4. In the event of the bidder bringing the case to court, the competitive bid process should continue, because the court summons will not delay the proceedings unless the court issues an interim order to protect the interests of the complainant.

5. In the event of sale without a competitive bid and in the event of sale by negotiation, offers by the Bug River repatriates should also be disregarded on account of the non-settlement of their claims by the Agency. ...”

8.  The 1999 Bill on restitution of immovable and certain kinds of movable property taken from natural persons by the State and by the Warsaw Municipality, and on compensation

44.  The drafting of the 1999 Bill on restitution of immovable property and certain kinds of movable property taken from natural persons by the State or by the Warsaw Municipality, and on compensation (Projekt ustawy o reprywatyzacji nieruchomości i niektórych ruchomości osób fizycznych przejętych przez Państwo lub gminę miasta stołecznego Warszawy oraz o rekompensatach) (“the 1999 Restitution Bill”) was completed in March 1999.

45.  The bill was introduced in Parliament by the Government in September 1999. However, it provoked a mounting conflict among all existing political factions before it was passed after a legislative process that lasted nearly one and a half years.

It provided that all persons whose property had been taken over by the State by virtue of certain statutes enacted under the totalitarian regime were to receive 50% of the actual value of their property, either in the form of restitutio in integrum or in the form of compensation in securities. Under section 2(3) read in conjunction with section 8, repatriated persons were to receive securities amounting to 50% of the value of their property, calculated according to the detailed rules applying to all persons concerned.

46.  Following a heated debate involving all sections of society, the media and all the political parties and factions, the relevant Act of Parliament was transmitted for the President of Poland’s signature in March 2001.

The President, exercising his right of veto, refused to sign it. In his veto message, he explained that the relevant statute would be a serious blow to the State’s economy and would jeopardise the general interest of Polish citizens, namely the economic progress of the country as a whole. The President further considered that the procedure envisaged for the restitution of property was contrary to the principles of social justice, the inviolability of property rights and equality before the law. In particular, he criticised a provision stipulating that only those persons who had Polish citizenship on 31 December 1999 could make a claim for restitution of property.

As to the question of compensation for property abandoned in the territories beyond the Bug River, the President suggested that that issue should be dealt with in a separate statute rather than in a statute designed to tackle an already wide variety of restitution claims. It was also stressed that exclusive competence to deal with such claims should be conferred on the courts of law and not on the executive.

47.  The President transmitted the vetoed Act to Parliament on 22 March 2001. The Special Parliamentary Commission for Adopting the 1999 Bill on Restitution moved its re-adoption.

However, the government coalition failed to gather a three-fifths majority to override the President’s veto and the 1999 Bill on Restitution was eventually rejected by Parliament on 25 May 2001.

9.  The right of perpetual use of land

48.  The right of perpetual use is defined in Articles 232 et seq. of the Civil Code (Kodeks Cywilny). It is an inheritable and transferable right in rem which, for ninety-nine years, gives a person full benefit and enjoyment of property rights attaching to land owned by the State Treasury or municipality. It has to be registered in the court land register in the same way as ownership. The transfer of that right, like the transfer of ownership, can be effected only in the form of a notarised deed, on pain of it being void ab initio. The “perpetual user” (użytkownik wieczysty) is obliged to pay the State Treasury (or the municipality, as the case may be) an annual fee which corresponds to a certain percentage of the value of the land in question.

10.  Concept of entitlement to compensation for property abandoned in the territories beyond the Bug River, as defined by the Supreme Court

(a)  Resolution of 30 May 1990

49.  In its resolution of 30 May 1990 (no. III CZP 1/90), reached by the bench of 7 judges, the Supreme Court (Sąd Najwyższy) dealt with the question whether persons repatriated under the Pact of 25 March 1957 between the Government of the Polish People’s Republic and the Government of the USSR on the timing and procedure for further repatriation from the USSR of persons of Polish nationality were entitled to the deduction referred to in section 88 § 1 of the 1985 Land Administration Act (at present referred to in section 212 § 1 of the 1997 Land Administration Act). The answer was in the affirmative.

In that context, the Supreme Court referred to the Republican Agreements of 1944 and held, inter alia, the following:

“... by virtue of the Republican Agreements of 1944 the Polish State undertook to pay equivalent compensation for [the abandoned] property. Thus, in this way, the provisions of those agreements were incorporated into Polish law and, in respect of Polish citizens, may constitute a basis for general rights.

...

Section 88 § 1[2]... , on account of its specific wording, causes serious difficulties in construction. Instead of determining directly subjective and objective pre-conditions for the right to equivalent compensation, the legislator referred to the provisions of international treaties. That reference constitutes the incorporation of the provisions of those agreements into Polish law. Yet that section does not list the treaties to which it refers. Thus the possible instruments are:

(a)  the Republican Agreements of 9 and 22 September 1944;

(b)  [unpublished agreement; irrelevant in the context of the present case];

(c)  the Pact of 25 March 1957 between the Government of Polish People’s Republic and the Government of the USSR on the timing and procedure for further repatriation from the USSR of persons of Polish nationality.

...

Among general principles laid down in the 1944 agreements only one, fundamental principle, enunciated in Article 3 § 6 of each of those Agreements – which stipulated that the Polish State should return the value of [abandoned property] to persons evacuated under those agreements – was incorporated into domestic law. Not from those other principles but only from this one does the general right to equivalent compensation derive.”

(b)  Resolution of 27 March 2001

50.  In its resolution of 27 March 2001 (no. CZP 3/2001) the Supreme Court, sitting as a bench of 3 judges, dealt with the question whether an entitlement to compensation for property abandoned in the territories beyond the Bug River could be considered a debt chargeable to the State Treasury and whether a person thus entitled could transfer his entitlement by way of a contribution in kind to pay for shares in a joint-stock company.

According to the Supreme Court, while the entitlement in question is for all practical purposes a debt chargeable to the State Treasury and undoubtedly has a pecuniary and inheritable and, to some extent, transferable character, it can be transferred only among persons expressly mentioned in section 212(4) of the 1997 Land Administration Act, namely owners of property abandoned in the territories beyond the Bug River or their heirs.

Consequently, that entitlement cannot be transferred to a legal person who is not listed in section 212(4) and who, under Polish law, is not capable of inheriting. It has also been stressed that in the light of the relevant practice and legal theory, a contribution in kind must be fully transferable, must have a precise book value and must be able to be entered as a capital asset on a balance sheet. Accordingly, the relevant entitlement does not satisfy the requirements for a contribution in kind.

11.  Actions taken by the Ombudsman in January-July 2002

51.  On 9 January 2002 the Ombudsman reminded the Prime Minister that he had already asked his predecessor in office whether any legislative process would be initiated in order to amend legislation and to increase the amount of land held by the State Treasury with a view to providing compensatory property for repatriated persons. He also referred to the practice of refusing to make deductions under section 212 of the 1997 Land Administration Act. That letter, in its relevant part, read:

“On 30 May 2001 I wrote to the former Prime Minister, Prof. Jerzy Buzek, and raised my objections to the infringement by district Mayor’s offices (starostwa powiatowe) of certain rights of people repatriated from the “territories beyond the Bug River”. Aside from bringing your attention to this problem, I also requested information on whether specific legislative work had been undertaken in order to increase the stock of real property designated for settling the claims of this quite considerable group of citizens. ....

Paragraph 6 of the 1998 Ordinance makes very clear that, aside from the district Mayors, also other entities that administer State property on the basis of separate regulations are to administer immovable property belonging to the State Treasury in order to ensure more effective realisation of compensation in kind for “property beyond the Bug River”. However, it turns out that, following the amendments to the 1998 Ordinance, the necessary amendments to legislation that would have increased the stock of property designated for settling the claims of people repatriated from the “territories beyond the Bug River” have not been introduced.

This state of affairs is confirmed by the letters I have received from entitled persons who claim, for instance, that the Military Property Agency still refuses to deduct the value of their property abandoned abroad from the price of property being sold by the Agency or from the fee for the right of perpetual use. The situation is similar when people repatriated from the “territories beyond the Bug River” wish to participate in bids organised by the State Agricultural Property Agency. In all the cases referred to above, each Agency, as grounds for denying entitled persons the right to participate in a bid, points to the absence of relevant legal regulations that would allow it to deduct the value of property abandoned abroad from the price of property being sold by a given Agency. ...

With regard to the above, I cordially ask you to inform me whether you are currently planning to amend the relevant legislation in order to increase the number of entities administering public property that are obliged to respect the right of people repatriated from the “territories beyond the Bug River” to compensation in kind. ...”

The Prime Minister replied that for the time being the authorities did not envisage any specific measures.

52.  On 5 July 2002 the Ombudsman made an application to the Constitutional Court, asking that:

“1.  Section 212(1) of the 1997 Land Administration Act, in so far as it excludes the possibility of deducting the value of property abandoned in connection with the war that began in 1939 from the sale price of agricultural property owned by the State Treasury;

2.  Section 213 of the 1997 Land Administration Act, in so far as it excludes the application of Section 212 of that Act to property held by the Resources of the State Treasury’s Agricultural Property;

3.  Section 17 of the Law of 29 December 1993 on Amendments to the Law on the administration of the State Treasury’s agricultural property and to other statutes;

4.  Section 31(4) of the 30 May 1996 Act

be declared incompatible with the principle of citizens’ confidence in the State and the law made by it, emerging from Article 2 of the Constitution, as well as with Article 64 §§ 1 and 2 read in conjunction with Article 31 § 3 of the Constitution.”

53.  In the reasoning for his application, the Ombudsman invited the Constitutional Court to qualify the entitlement under section 212(1) of the 1997 Land Administration Act as, inter alia, an “opportunit[y] or hope [of acquiring] ownership title to specific properties”, a “right of a proprietorial nature secured by Article 64 of the Constitution” and a “right of a pecuniary nature, which also has the character of a debt”.

54.  As of the date of adoption of the present decision, the proceedings in the Constitutional Court were pending.

12.  Relevant constitutional provisions[3]

55.  Article 2 of the Constitution reads:

“The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.”

56.  Article 64 of the Constitution states, in so far as relevant:

“1.  Everyone shall have the right to ownership, other property rights and the right of succession.

2.  Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession. ...”

57.  Article 31 § 3 of the Constitution provides:

“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”

58.  Article 87 lists the sources of law. That provision reads, in so far as relevant:

“1.  The sources of universally binding law of the Republic of Poland shall be: the Constitution, statutes, ratified international agreements, and regulations.

...”

59.  Article 91 of the Constitution, in its relevant part, states:

“1.  After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.

2.  An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.”

COMPLAINT

60.  The applicant alleged a breach of Article 1 of Protocol No. 1 to the Convention in that his entitlement to compensation for property abandoned in the territories beyond the Bug River had not been satisfied.

THE LAW

61.  The applicant complained that his entitlement to compensation for property abandoned by his family in the territories beyond the Bug River had not been satisfied. He alleged a breach of Article 1 of Protocol No. 1 to the Convention, which provides:

“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.”

62.  The Government disputed the admissibility of the case. They first contended that the application was incompatible ratione temporis with the provisions of the Convention. They maintained, secondly, that the applicant did not have “possessions” for the purposes of Article 1 of Protocol No. 1. Thirdly, they pleaded that he had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention.

Lastly, the Government invited the Court to find that the application was in any event inadmissible as being manifestly ill-founded or, should the case be examined on the merits, that there had been no violation of Article 1 of Protocol No. 1 to the Convention.

63.  The applicant asked the Court to dismiss the Government’s pleas of inadmissibility, declare the application admissible and hold that there had been a violation of the right of property as safeguarded by Article 1 of Protocol No. 1.

A.  Court’s temporal jurisdiction

1.  The Government’s submissions

64.  The Government argued that all acts, decisions and events affecting the applicant’s legal and factual situation in relation to the alleged failure to satisfy his entitlement had occurred before 10 October 1994, the date on which Protocol No. 1 had entered into force in respect of Poland.

65.  To begin with, they maintained that, in so far as the applicant might be understood to be complaining about a “deprivation of property”, it had to be noted that his grandmother had voluntarily abandoned her real estate in Lwów. That had happened some 49 years before Poland had ratified the Protocol.

66.  Even if, the Government added, that event had given rise to any potential compensatory measures, the complaint should be assessed in the light of prior decisions of the Commission in similar cases lodged against Germany which concerned post-war expropriations resulting from the Soviet occupying power.

In particular, the Government referred to the case of Geschäftshaus GmbH v. Germany (no. 36713/97, Commission decision of 21 May 1998, unreported) and the relevant precedents (for example A., B. and Company A.S. v. the Federal Republic of Germany, no. 7742/76, Commission decision of 4 July 1978, Decisions and Reports 14, p. 146). They stressed that in those cases the Commission had found that it had no competence ratione temporis and ratione materiae to examine complaints about the refusal or denial of compensation claims based on facts that had occurred prior to the entry into force of the Convention in respect of the respondent State. In their opinion, that conclusion applied in the present case.

67.  The Government further submitted that after 10 October 1994 the applicant had not taken any steps to obtain the remainder of the compensatory entitlement for which he had asked the Cracow District Office in 1992. Indeed, he had later complained to the Supreme Administrative Court solely about the alleged inactivity on the part of the authorities but, after the complaint had been rejected, he had taken no further action.

68.  The third limb of the Government’s objection concerned the issue of a “continuing situation”. In their submission, the situation complained of could not be considered a “continuing” one for the purposes of the Court’s jurisdiction ratione temporis.

In that regard, the Government again cited the above-mentioned decisions of the Commission and on this basis argued that deprivation of ownership or another right in rem should in principle be considered an instantaneous act which did not produce a continuing situation of “deprivation of a right”. In the present case, the actual deprivation of property had occurred at the moment when the applicant’s grandmother had been repatriated from the territories beyond the Bug River, which had taken place before Poland had ratified Protocol No. 1. At that time there had been no interference with the applicant’s rights under Article 1 of the Protocol that could engage the responsibility of the Polish State and give rise to a continuing violation.

2.  The applicant’s submissions

69.  The applicant disagreed. He maintained that the situation in which he found himself had been caused by a series of acts and omissions on the part of the authorities which had, in turn, resulted in the Polish State’s continuous failure to satisfy his entitlement.

70.  It was true, the applicant conceded, that he himself had never had his property expropriated pursuant to an administrative decision ordering such a measure. It was also true that the original property had remained outside the present borders of Poland. However, pursuant to Article 3 § 6 of the relevant Republican Agreement, all persons repatriated under the provisions of the Agreement had had the right to have the value of abandoned property returned to them. In the applicant’s view, the course of subsequent events showed the continuous existence of that right.

71.  In that context, the applicant submitted that the obligation to compensate repatriated persons had since 1946 been incorporated into successive statutes. Those laws – which had continually provided that repatriated persons had the right to have the value of the abandoned property deducted from the price, or the fee for perpetual use, of immovable property purchased from the State – had been enacted before the entry into force of Protocol No. 1 in respect of Poland, had applied on the date of the Protocol’s entry into force and were still in force, as was evidenced notably by the 1985 Land Administration Act and the 1997 Land Administration Act. What was more, the obligation to compensate repatriated persons had for a long time been honoured by the State, which, in most cases, had satisfied their entitlement to have the “value returned”, pursuant to the Republican Agreements.

72.  The failure to discharge that obligation in the applicant’s case had, in his opinion, been caused by a series of events that had happened both before and after the ratification of Protocol No. 1 by Poland. The first cause had been the enactment of laws that, from 1990 up to the present, had all but removed the possibility of obtaining property from the State Treasury’s land resources. The last such enactment had taken place in December 2001, since when it had no longer been possible for property held by the Military Property Agency to be designated for the purposes of satisfying his claim.

The second cause was that the realisation of his entitlement had been made impossible in practice by not putting State land up for sale or by preventing repatriated persons from bidding for State property. In particular, the applicant referred to the instruction issued by the Wrocław Military Property Agency in 2001 (see paragraph 43 above).

73.  In view of the foregoing, the applicant concluded that his application fell within the Court’s temporal jurisdiction.

3.  The Court’s assessment

74.  The Court’s jurisdiction ratione temporis covers only the period after the ratification of the Convention or its Protocols by the respondent State. From the ratification date onwards, all the State’s alleged acts and omissions must conform to the Convention or its Protocols and subsequent facts fall within the Court’s jurisdiction even where they are merely extensions of an already existing situation (see, for example, Yağci and Sargin v. Turkey, judgment of 8 June 1995, Series A no. 319-A, p. 16, § 40, and Almeida Garrett, Mascarenhas Falcão and Others v. Portugal, nos. 29813/96 and 30229/96, § 43, ECHR 2000-I).

Accordingly, the Court is competent to examine the facts of the present case for their compatibility with the Convention only in so far as they occurred after 10 October 1994, the date of ratification of Protocol No. 1 by Poland. It may, however, have regard to the facts prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date.

75.  The Government argued that all the acts, decisions and events that could possibly affect the applicant’s situation had occurred before 10 October 1994, the date of ratification of Protocol No. 1 by Poland. In particular, they stressed that an act that could be considered a “deprivation of property” for the purposes of Article 1 of Protocol No. 1 had taken place at the moment when the applicant’s grandmother had abandoned her property in Lwów (see paragraphs 64-65 above).

The Court observes, however, that the applicant did not complain of being deprived of the original property abandoned by his family outside the present borders of Poland. It also notes that, in contrast to the applicants in the Commission cases cited by the Government, he did not complain about the denial of a compensation claim based on laws or facts dating from before the ratification of the Protocol either. Nor was his complaint directed against a single specific decision or measure taken before, or even after, 10 October 1994 (see paragraph 60 above).

The factual basis for his Convention claim is the alleged failure to satisfy an entitlement to a compensatory measure which was vested in him under Polish law on the date of the Protocol’s entry in force and which, despite intervening legislation, subsists today (see paragraph 71 above). The Court notes, for example, that on 10 October 1994 and 12 March 1996 (the date on which he lodged his application with the Commission) the applicant was entitled by section 81 of the 1985 Land Administration Act to obtain a reduction in the price, or in the fee for perpetual use, of immovable property purchased from the State (see paragraph 28 above). Now, an identical entitlement is laid down in section 212(1) of the 1997 Land Administration Act (see paragraph 30 above) and, as so far seems uncontested, in the applicant’s case that entitlement has not yet been satisfied.

76.  In so far as the applicant’s complaints are directed against the acts and omissions of the Polish State in relation to the implementation of an entitlement to a compensatory measure vested in him under Polish law, an entitlement which continued to exist after 10 October 1994 and still exists today, the Court has temporal jurisdiction to entertain the application.

77.  The Government’s plea of inadmissibility on the ground of lack of jurisdiction ratione temporis must accordingly be rejected.

B.  Exhaustion of domestic remedies

1.  The Government’s submissions

78.  The Government next pleaded that the applicant had failed to exhaust the domestic remedies available to him, as required under Article 35 § 1 of the Convention.

They maintained that domestic law implied that a person seeking to satisfy his claim for compensation for property abandoned beyond the Bug River should display an active attitude. A necessary step was to make an application to the mayor of the district, pursuant to paragraph 4(1) of the 1998 Ordinance. The applicant, whose last request for the remainder of his compensatory entitlement had dated back to 1992, had not made any fresh application of that kind. Nor had he submitted to the authorities an updated report determining the value of the property abandoned by his grandmother, the last report having been prepared 20 years ago at his mother’s request.

79.  Furthermore, the Government stressed, the applicant had not participated in competitive bids for sale of State property. That was of particular importance because the acquisition of compensatory property could be enforced only through participation in a bid organised by the authorities responsible for handling claims by repatriated persons.

80.  A competitive bid itself was not, in the Government’s view, an “effective remedy” within the meaning of Article 35 § 1 of the Convention. It was, however, an indispensable component of the procedure leading to the conclusion of a contract for sale of the right of perpetual use of, or title to, compensatory assets.

In short, the Government concluded that the applicant’s failure to satisfy a number of the above procedural requirements and his unwillingness to take part in bids had made it impossible for him to realise his entitlement and had meant that he had not complied with the rule of exhaustion of domestic remedies.

2.  The applicant’s submissions

81.   Relying on the principles established by the Court in, inter alia, the case of Akdivar and Others v. Turkey (judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV), the applicant maintained that the remedy, or the combination of remedies, mentioned by the Government was neither “adequate” nor “effective” and did not, therefore, have the qualities required by Article 35 § 1.

82.  To begin with, the applicant submitted that the exhaustion issue should be considered in the light of the fact that, in reality, the authorities had not even given practical effect to the existing legislation, however defective and restrictive. In that connection, he referred to the instruction issued by the Military Property Agency (see paragraph 43 above) and to the Ombudsman’s letter of 9 January 2001 to the Prime Minister (paragraph 51 above) and maintained that those documents showed clearly that there had been, and still was, a widespread practice of denying repatriated persons their right to compete in bids and of refusing to make deductions under section 212(1) of the 1997 Land Administration Act.

83.  As regards the Government’s assertion that he should have made an application to the mayor of the district and asked for compensatory property, the applicant pointed out that he had already made such an application and that it had been duly entered in the relevant register in 1992. Also, at the same time, the authorities had informed him that the matter would be dealt with under expected new legislation. No provision of the 1998 Ordinance obliged him to renew his application; on the contrary, paragraph 12 of the 1998 Ordinance stipulated that proceedings that had been initiated under the previous rules and not terminated were to be governed by that Ordinance.

84.  Referring to the bidding procedure, the applicant further argued that, even assuming that it was an “available” means, it was not “effective” as it carried with it an element of risk and lacked certainty.

85.  In sum, the applicant concluded that he had complied with the requirements under Article 35 § 1 and invited the Court to dismiss the Government’s objection.

3.  The Court’s assessment

86.  The operation and effectiveness of the mechanism designed to satisfy the applicant’s entitlement to a compensatory measure, including the bidding procedure and the applicant’s own action or inaction, are matters also going to the issue whether the requirements of the right of property under Article 1 of Protocol No. 1 in relation to that entitlement were complied with in the particular circumstances. That being so, these matters would, in the Court’s view, more appropriately be examined at the merits stage.

87.  The Court accordingly joins the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies to the merits of the case.

C.  Applicability of Article 1 of Protocol No. 1 to the Convention

1.  The Government’s submissions

88.  The Government maintained that the applicant did not have “possessions”, as defined by the Court’s case-law. In their written pleadings, they asserted that the applicant’s entitlement was neither a “civil” nor a “property” right for the purposes of domestic legislation or of Article 1 of Protocol No. 1, but a public-law entitlement which, as long as no administrative decision deducting the value of property abandoned abroad had been taken, was of an “illusory character” and did not exist in practice. That conclusion was based on the argument that not only was the deduction conditional on the prior purchase of State property but in addition no domestic provision laid down an explicit pre-emptive right to acquire property from the State.

89.  At the oral hearing, the Government added that, while the applicant’s entitlement could be considered to have constituted a kind of “compensatory measure”, it was not related to any explicit obligation for the State to sell property. It was neither a civil-law right to claim property from the State nor a compensation claim; instead, it merely afforded the possibility of asking for State property and, if such property were available, acquiring it through a bidding procedure. Only then could the value of the original property be deducted and the entitlement realised.

90.  That entitlement, the Government went on to argue, was by no means tantamount to the right to have the “value returned” laid down in Article 3 § 6 of the relevant Republican Agreement. It was true that it had originated in the Agreements, as under those treaties the Polish State had undertaken to regulate the question of compensation for property abandoned by repatriated persons beyond the Bug River, but it had been for the Polish authorities to determine the most appropriate way of addressing that issue.

91.  In any event, the Government pointed out, the Republican Agreements were no longer valid because their legal force had been extinguished by the 1952 Pact, which had been concluded with a view to “complete and definite mutual settlement of accounts” arising from the delimitation of the Soviet-Polish border and the resultant repatriation.

Apart from that, the Government considered that the Republican Agreements lacked any legal force since they had never been ratified and published in the Journal of Laws but only signed and, in consequence, could not be classified as sources of universally binding law, as defined in Article 87 of the Constitution (see paragraphs 58 and 59 above).

According to the Government, the Agreements could not, therefore, constitute an autonomous legal basis for the applicant’s assertion that he had “possessions” within the meaning of Article 1 of Protocol No. 1.

2.  The applicant’s submissions

92.  The applicant submitted that his entitlement constituted a property right which Poland had originally recognised in taking upon herself the obligation to compensate repatriated persons under Article 3 § 6 of the relevant Republican Agreement. By virtue of that provision, the State had undertaken and accepted a duty to return the value of property that repatriated persons had had to abandon.

As a result, the evacuation of those persons from beyond the Bug River had been carried out with the accompanying recognition of an unconditional right to full compensation, as no restrictions had been placed on the amount of compensation.

93.  That obligation, the applicant went on to argue, had later been incorporated into domestic law, which had conferred on him, as the heir of his repatriated grandmother, a specific right to obtain a reduction in the price, or in the fee for perpetual use, of immovable property purchased from the State, so that he could recover the remainder of the compensation due.

94.  In the applicant’s submission, the State had been, and was still, under an obligation to sell him property since the legal provisions laying down his entitlement imposed on the State an implicit duty to enable him to purchase such property in order to enforce his right to the deduction. To hold otherwise or, as the Government suggested, to consider the entitlement “illusory” would mean accepting that the legislature had simply created a false legal rule.

95.  At the oral hearing, the applicant also asserted that, from the point of view of his right under Article 1 of Protocol No. 1, it was immaterial whether or not the Republican Agreements had been ratified because the principle of compensation stemming from Article 3 § 6 of each of the Agreements had in any case been embodied in domestic law and recognised by the Polish judicial authorities. In that connection, the applicant cited the Supreme Court which, in its resolution of 30 May 1990, had held in unambiguous terms that the principle enunciated in that Article had been incorporated into domestic law.

96.  Lastly, the applicant pointed out that the State authorities commonly accepted that the entitlement in question was a pecuniary right. For instance, the Ombudsman, in his application to the Constitutional Court, had referred to that entitlement as a “right of a pecuniary nature, which also ha[d] the character of a debt”. Those features did, in the applicant’s view, suffice to bring Article 1 of Protocol No. 1 into play.

3.  The Court’s assessment

97.  The Court has treated the Government’s argument as to the inapplicability of Article 1 of Protocol No. 1 as amounting, at this stage of the proceedings, to a request to reject the application on the ground of incompatibility ratione materiae with that Protocol.

98.  The concept of “possessions” in the first part of Article 1 of Protocol No. 1 has an autonomous meaning, which is not limited to ownership of physical goods and is independent from the formal classification in domestic law: certain other rights and interests, for instance debts, constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision. The issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see, among many other examples, Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000-I, and the Almeida Garrett, Mascarenhas Falcão and Others v. Portugal judgment cited above, § 47).

In the present case, that approach requires the Court to have regard to the following points of law and of fact.

99.  It appears not to have been contested before the Court that under the Republican Agreements of 1944 Poland took upon herself an obligation to compensate repatriated persons for loss of movable and immovable property that they had had to abandon upon their evacuation to Poland (see paragraphs 20-21, 90 and 92 above).

100.  The Court finds no cause to examine in detail the nature and extent of that obligation since there is no dispute over the fact that it was subsequently incorporated into Polish law in the form of an entitlement to credit the value of the abandoned property against the price, or fee for perpetual use, of property – including land, houses and commercial premises – purchased from the State. Indeed, that also emerges clearly from the case-law of the Polish Supreme Court, which has unequivocally held that the relevant legal provisions originated in, and refer to, the Republican Agreements (see paragraphs 20-21, 28-32, 49, 90 and 93 above).

In the light of the above, the Court considers that it is irrelevant whether, as the Government argued, the Republican Agreements have been terminated or, as the applicant submitted, are still in full legal force and effect, because the legal basis for the entitlement which is the subject-matter of the applicant’s complaint has in any event been established in domestic legislation on a continuing basis which subsisted after 10 October 1994.

101.  In that context, the Court would also note that the entitlement vested in the applicant by virtue of Polish law has been defined by the Supreme Court as a “debt chargeable to the State Treasury” which is “of a pecuniary and inheritable character” although “transferable only among persons mentioned in section 212(4) of the 1997 Land Administration Act” (see paragraph 50 above).

While the Court does not find it necessary to determine the precise content and scope of the legal interest in question – as it considers that that issue should more appropriately be dealt with at the merits stage – it is nevertheless satisfied that the factors outlined above show that the applicant has a proprietary interest recognised under Polish law, an interest which is eligible for protection under Article 1 of Protocol No. 1.

102.  It thus follows that the application cannot be rejected as being incompatible ratione materiae with the provisions of the Convention.

D.   Compliance with Article 1 of Protocol No. 1

103.  As far as compliance with Article 1 of Protocol No. 1 is concerned, the Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits.

104.  No other ground for declaring the application inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Paul Mahoney Luzius Wildhaber
RegistrarPresident

[1]now section 212 of the 1997 Land Administration Act; see also paragraph 30

[2]in the consolidated text of the 1985 Land Administration Act (cited in paragraph 28) that provision became section 81 § 1

[3] as rendered in the official translation made for the Bureau of Research of the Sejm Chancellery

Full & Egal Universal Law Academy