FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 11172/07
by Elwira TOSCANO
against Poland
The European Court of Human Rights (Fourth Section), sitting on 9 December 2008 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 22 February 2007,
Having regard to its decision in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (no. 47550/06) of 7 October 2008,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Elwira Toscano, is a German national who was born in 1935 and lives in Berlin. She is represented before the Court by Mr T. Gertner, a lawyer practising in Bad Ems.
A. Historical background
A summary account of historical events in which the present application originated can be found in the Court’s decision on admissibility in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (see Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (dec.), no. 47550/06, 7 October 2008, §§ 3-5, ECHR 2008-...).
B. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant’s family owned 49 hectares of agricultural land in Nowy Tomyśl and 1.5 hectares of land in Szklarka Trzcielska. This region before and during the Second World War belonged to the German Reich. After the defeat of Germany at the end of the war, when the border between Germany and Poland was drawn along the Oder-Neisse line, it was included in the territory of Poland (see Preussische Treuhand GmbH & CO. Kg A. A., cited above, § 3).
According to the applicant, on 29 June 1945 Polish militiamen came to their house and told them that they were to be deported at once. They were given only half an hour to pack the barest personal essentials. They marched for about four weeks towards the Oder. They eventually arrived in Berlin‑Adlershof.
The applicant and other members of her family have still not been allowed to return to their home and have been refused restitution of their property.
C. Relevant international and domestic law
A detailed description of the relevant international and domestic law is set out in the above-mentioned case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (ibid. §§ 31-41).
COMPLAINTS
1. The applicant in essence complained that she and her predecessors in title were forced by the Polish authorities to leave their home and property, which are at present situated within Poland’s borders, in circumstances which amounted to ethnic cleansing – if not genocide – and also to collective extra-judicial punishment, inhuman treatment and, in consequence, a crime against humanity. This made the actions complained of inherently unlawful and produced a continuing violation of Article 1 of Protocol No. 1 to the Convention.
2. The applicant further complained that although her and her family’s human rights were seriously violated, the Polish Parliament refuses to pass a rehabilitation law, rescinding the confiscation of their property and a restitution law to correct the effects of this confiscation in the sphere of their ownership rights.
In support of both complaints, the applicant relied on the same arguments as those put forward by the applicants in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (ibid. §§ 42-44).
THE LAW
1. The applicant first complained of a continuing violation of Article 1 of Protocol No. 1 to the Convention that originated in the unlawful expulsion of her family and which was accompanied by ethnic cleansing measures and the expropriation of their property by the Polish authorities.
The Court observes that the events that gave rise to this complaint started on 29 June 1945, when the applicant and her family had been expelled from their home by Polish militiamen. The seizure and formal expropriation of their property took place in 1945-46, when the Polish State enacted several expropriation laws whereby all German property situated in the former German territories east of the Oder-Neisse line, which were included in the territory of Poland following the Yalta Conference and the undertakings under the Potsdam Agreement in respect of war reparations and delimitation of borders, was taken over by the State (see Preussische Treuhand GmbH & CO. Kg A. A., cited above, §§ 3, 5 and 38-41).
The applicant argued that the situation complained of, although it originated before the entry into force of Protocol No. 1 in respect of Poland, produced continuing effects.
However, the Court has already dealt at length with the same arguments as to the alleged existence of a continuing violation of property rights, put forward by the applicants in the case of Preussische Treuhand GmbH & CO. Kg A.A. v. Poland, and rejected them. It held that the purported individual acts of violence, expulsion, dispossession and seizure or confiscation were instantaneous acts which occurred before the ratification of Protocol No. 1 by Poland and which did not produce any continuing effects that could have consequences for its jurisdiction ratione temporis (ibid. §§ 55-62). Having regard to the facts before it, the Court sees no reason to hold otherwise in the present case.
It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.
2. The applicant further complained about Poland’s failure to enact any rehabilitation or restitution laws that would put right the injustices suffered by her and her family and compensate them for loss of their property.
However, as the Court has already held on many occasions, Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to return property which was transferred to them before they ratified the Convention. Nor does this provision impose any restrictions on the Contracting States’ freedom to determine the scope of property restitution or rehabilitation laws. The Convention imposes no specific obligation on them to provide redress for wrongs or damage caused prior to their ratification of the Convention (see Preussische Treuhand GmbH & CO. Kg A. A. cited above, §§ 63-64, with further references).
Accordingly, the Polish State has no duty under Article 1 of Protocol No. 1 to enact laws providing for rehabilitation, restitution of confiscated property or compensation for property lost by the applicant’s family.
It follows that the remainder of the application is incompatible ratione materiae with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy