FOURTH SECTION
DECISION
PILOT-JUDGMENT PROCEDURE
Application no. 37071/03
by Edmund Rudolf DE PELLIER
against Poland and Ukraine
The European Court of Human Rights (Fourth Section), sitting on 23 September 2008 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 7 November 2003,
Having regard to the decision to apply the pilot-judgment procedure and to adjourn its consideration of applications deriving from the same systemic problem identified in the case of Broniowski v. Poland (no. 31443/96),
Having regard to the decisions to strike the applications Wolkenberg and Others v. Poland (no. 50003/99) and Witkowska-Toboła v. Poland (no. 11208/02) out of the Court's list of cases,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Edmund Rudolf de Pellier, is a Polish national who was born in 1931 and lives in Warsaw. He was represented before the Court by Mr M. Kanawka, a lawyer practising in Gdańsk.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
Before the Second World War the applicant's family owned real property in the eastern provinces of pre-war Poland, the so-called “Borderlands” (Kresy). Those regions included large areas of present-day Belarus and Ukraine and territories around Vilnius in what is now Lithuania. In September 1939 the regions were invaded by the USSR.
Following the end of the war, when the Polish eastern border was redrawn westwards and fixed along the Bug River, the Borderlands acquired the name of the “territories beyond the Bug River” (ziemie zabużańskie).
On an unspecified date following 9 September 1944 the applicant's family, like some 1,240,000 other Polish citizens who were at various dates from 1944 to 1953 subject to repatriation from the territories beyond the Bug River, was repatriated to Poland under the provisions of the so-called “Republican Agreements” (umowy republikańskie).
A more detailed account of the historical background and the relevant provisions of the Republican Agreements and other related treaties and laws can be found in the Court's judgment in the pilot case of Broniowski v. Poland (see, in particular, Broniowski v. Poland [GC], no. 31443/96, ECHR 2004-V, §§ 10-12 and 39-45).
2. The applicant's attempts to recover compensation
On 30 March 1947 the Gdańsk District Court (Sąd Rejonowy) gave a declaratory judgment stating that the applicant had owned real property of substantial value in the territories beyond the Bug River. The property consisted of, in particular, four factories, two hotels, and one cinema, all located in Lwów.
On 12 March 1991 the Braniewo Distric Office (Urząd Miasta) informed him that his claim for compensation had been entered in the relevant register as claim no. 105 but its realisation depended on the adoption of future measures by Parliament in respect of Bug River claims.
The applicant's subsequent attempts to acquire State property were unsuccessful. The only possibility of enforcing the claim was to participate in competitive bids for the sale of State property. However, the State authorities throughout Poland officially acknowledged the acute shortage of State-owned land designated for the realisation of the Bug River claims.
This fact and the fact that at the material time it was the authorities' common practice to desist from organising auctions for Bug River claimants or to openly deny them the opportunity to enforce their entitlement through the statutory bidding procedure was established by the Court in the Broniowski judgment (see Broniowski, cited above, §§ 48-61, 69-87 and 168-176).
In 1996 the applicant wrote letters to the Polish Consulate in Lwów, and to the President of Lwów asking for help in obtaining compensation for the property.
In 2002 the applicant wrote a letter to the President of Ukraine complaining about his situation.
B. Relevant domestic law and practice
A detailed description of the relevant domestic law and practice concerning the Bug River property is set out in the judgments delivered by the Court in the pilot case of Broniowski v. Poland (see Broniowski v. Poland (merits), cited above §§ 39-120; and Broniowski v. Poland (friendly settlement), cited above, §§ 14-30) and the decisions given in the cases of Wolkenberg and Others v. Poland and Witkowska-Toboła v. Poland, cited above, §§ 24-25 and §§ 28-29 respectively.
The operation of the compensation scheme introduced by the July 2005 Act is described in the Court's decisions given in the cases of Wolkenberg and Others v. Poland (dec.) no. 50003/99, 4 December 2007, §§ 18-23 and Witkowska-Toboła v. Poland (dec.) no. 11208/02, 4 December 2007, §§ 22‑27.
COMPLAINTS
The applicant complained that the Polish and Ukrainian authorities had refused to compensate him for the property left by his family in the territories beyond the Bug River. In particular, he complained about Poland's continued failure to secure the implementation of his right to compensation for the Bug River property. These complaints in substance referred to Article 1 of Protocol No. 1 to the Convention.
THE LAW
A. As regards the part of the application directed against Poland
1. Application of the pilot-judgment procedure
The present case, like some 273 similar cases currently on the Court's docket, had been examined in accordance with the pilot-judgment procedure following the judgment given by the Court in the Broniowski case (see Broniowski (merits), cited above §§ 189 et seq.). The applicant's complaint originated in the same structural shortcoming found to have been at the root of the Court's finding of a violation of Article 1 of Protocol No. 1 in the pilot case and defined as “a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the failure to set up an effective mechanism to implement the “right to credit” of Bug River claimants” which “ha[d] affected and remain[ed] capable of affecting a large number of persons” (ibid., see also the third operative provision of the judgment).
In that connection, and having regard to the number of persons potentially affected by the systemic violation of the Convention, the Court directed that “the respondent State must, through appropriate legal measures and administrative practice, secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu, in accordance with the principles of protection of property rights under Article 1 of Protocol No. 1” (ibid. § 194 and the fourth operative provision of the judgment).
2. Application of Article 37 of the Convention
Article 37 of the Convention reads, in so far as relevant, as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
...
(b) the matter has been resolved; ...
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
In the cases of Wolkenberg and Others v. Poland and Witkowska‑Toboła v. Poland the Court, having regard to the general compatibility of the compensation scheme introduced by the July 2005 Act with the principles of protection of property rights, in particular with the principles relating to compensation and to the effective functioning of that Act in practice, as well as to the availability of domestic remedies enabling Bug River claimants to recover compensation for any past material or non‑material prejudice suffered as a result of the previous defective operation of the domestic legislation, was satisfied that the issue giving rise to the Bug River cases had been resolved for the purposes of Article 37 § 1 of the Convention.
The Court held that the procedures under the July 2005 Act had provided the applicants and other Bug River claimants with relief at domestic level which made its further examination of their applications and of other similar applications no longer justified. In consequence and finding no special circumstances regarding respect for human rights that would require the continued examination of the cases by virtue of Article 37 § 1 in fine, the Court decided to strike the applications out of its list of cases (see Wolkenberg and Others v. Poland, cited above, §§ 60-77; and Witkowska‑Toboła v. Poland, cited above, §§ 62-79).
Having regard to the circumstances of the present case and to the fact that it is open to the applicant to avail himself of the compensation scheme introduced by the July 2005 Act, the Court finds no reason justifying its departure from the conclusion reached in the above-mentioned cases. Accordingly, the application should be struck out of the Court's list of cases.
B. As regards the part of the application directed against Ukraine
As regards the applicant's complaint that the Ukrainian authorities failed to compensate him for the Bug River property, the Court reiterates that an issue can only arise under Article 1 of Protocol No. 1 if the applicant can establish that he had a claim to “property rights” or “possessions” deriving from Ukrainian legislation or by virtue of a final judicial determination in his favour from the Ukrainian courts. The existence or absence of such a claim, which is a question of domestic law, is in the first place for the domestic courts to determine. However, apart from writing letters to the President of Ukraine and the local authorities of Lwów, the applicant has failed to establish that he had put his claim to the domestic courts in accordance with domestic procedures. It follows that the application in so far as it is directed against Ukraine must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see Pashkovskiy v. Ukraine (dec.) no. 4582/05, 17 June 2008).
For these reasons, the Court unanimously
Decides to strike the part of the application directed against Poland out of its list of cases;
Declares the remainder of the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy