Information Note on the Court’s case-law No. 103
December 2007
Witkowska-Tobola v. Poland - 11208/02
Decision 4.12.2007 [Section IV]
Article 37
Article 37-1-b
Matter resolved
General measures, including the introduction of new legislation, taken by State to remedy systemic problem in domestic law: struck out
[This summary also covers the Decision of the case Wolkenberg and Others v. Poland, no. 50003/99, 4 December 2007]
Facts: As in the Broniowski case, the applicants’ families had been forced at the end of the Second World War to abandon land in the territories beyond the Bug River which no longer formed part of Poland and to resettle within the redrawn Polish borders. Under a compensation scheme set up by the Polish State, they successfully applied for certificates which entitled them to have the value of the abandoned property deducted either from the price of immovable property purchased from the State or from a fee for the “perpetual use” of State property. However, they were unable to enforce their claims owing to a shortage of available property. They and a large number of other claimants subsequently lodged applications with the Court. In 2004 the Court found in the pilot case of Broniowski that there was a systemic problem in the manner in which the Bug River claims were being dealt with and directed the respondent State to secure through appropriate legal measures and administrative practice the implementation of the remaining Bug River claimants’ property rights or to afford equivalent redress in lieu. The Polish State responded by introducing new legislation (“the 2005 Act”) which offered claimants a choice between offsetting the value of their abandoned land against the cost of replacement land as before or of receiving a cash payment. A statutory ceiling of 20% of the current value of the abandoned property was placed on the amount of compensation. Following the friendly settlement in Broniowski and the entry into force of the 2005 Act, the applicants were dealt with under the accelerated payment procedure on account of their personal circumstances. They accepted a Government offer of a cash payment but stated that they still wished to pursue their applications before the Court and to assert their rights to the remaining 80% of the current value of the abandoned properties.
In their applications to the Court, the applicants complained of a failure by the State to secure the implementation of their right to compensation prior to the entry into force of the 2005 Act and of a violation of their rights of property on account of the restriction on their entitlement to compensation under the new legislation to 20% of the current value of the abandoned land.
Law: It was inherent in the pilot-judgment procedure that the Court’s assessment of the situation complained of in a “pilot” case necessarily extended beyond the sole interests of the individual applicant and required it to examine the case also from the perspective of the general measures that needed to be taken in the interest of other potentially affected persons. The same logic applied when determining whether an application could be struck out of the Court’s list pursuant to Article 37 § 1 (b) of the Convention on the ground that the matter had been resolved. For that reason, the Court’s findings on that issue in the instant cases would be valid in the context of all subsequent similar cases.
(a) Compensation scheme under the 2005 Act – The Court had expressly accepted in Broniowski that the radical reform of Poland’s political and economic system, as well as the state of its finances, might justify stringent limitations on compensation for the Bug River claimants. It acknowledged that the 2005 Act was a compromise between the claimants’ expectations and the State’s budgetary constraints and that the State also had financial obligations towards many other persons who had suffered considerable material losses due to the nationalisation or expropriation of their property under the totalitarian regime. The choice the authorities had made, in particular their decision to impose a statutory ceiling of 20% on compensation and to use the retail price index to re-evaluate the Bug River claims on the date of payment, did not appear unreasonable or disproportionate in view of their wide margin of appreciation and the fact that the purpose of the compensation was not to secure reimbursement for a distinct expropriation but to mitigate the effects of the taking of property which was not attributable to the Polish State. Accordingly, having regard in particular to the legitimate public interest objectives pursued, the impugned provisions struck a fair balance between the protection of the applicants’ right of property and the general interest in a manner compatible with Article 1 of Protocol No. 1.
(b) Operation of the 2005 Act in practice – The new legislation created more favourable conditions for the realisation of the Bug River claims, especially by introducing the possibility of receiving compensation in cash as an alternative to the cumbersome bidding procedure previously available and by enlarging the pool of land set aside for claims. Taking into account the difficulty of setting up a completely new compensatory mechanism to register and process up to 80,000 claims of substantial value, the State could not be censured for the actions it had thus far taken to remedy the situation. It had acted promptly and decisively in introducing fresh legislation laying down clear rules of procedure and offering greater foreseeability. Substantial funds had been allocated to secure cash payments for claimants and steps had been taken to ensure that the process was transparent both to claimants and taxpayers. As demonstrated by the number and results of competitive bids and the operation of the cash payments, practical and legal obstacles to the exercise of the claimants’ rights had been removed by the scheme.
(c) Whether the matter had been resolved – The Court was satisfied that the 2005 Act effectively secured “the implementation of the property right in question in respect of the remaining Bug River claimants”, as indicated in the fourth operative provision of the Broniowski pilot judgment. As regards redress for any past prejudice suffered as a result of the defective operation of the compensation scheme before the new legislation was introduced, it noted that the applicants had neither sought redress nor supplied it with evidence showing any systematic policy in Poland of refusing claims for damages by Bug River claimants. It therefore saw no reason to consider that the domestic remedies that had been referred to in the Broniowski friendly-settlement judgment were unavailable or generally ineffective. Further, having regard to the purpose of the pilot-judgment procedure, the Court’s role after the delivery of the pilot judgment and the implementation by the State of general measures in conformity with the Convention could not be converted into that of providing individualised financial relief in repetitive cases arising from the same systemic situation. Thus, without prejudice to its decision to restore any of the applications if the circumstances – in particular the future functioning of the compensation scheme under the 2005 Act – justified, the Court was satisfied that the procedures under that statute had provided the applicants and other Bug River claimants with domestic relief such that the further examination of their applications was no longer justified.
Conclusion: striking out (unanimously).
For the background to the Bug River cases, see the Broniowski v. Poland (no.31443/06) judgments on the merits (reported in Information Note no. 65) and the friendly settlement (Information Note no. 79).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy