C.D. v POLAND - 27909/95 [2008] ECHR 1095 (23 September 2008)

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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 with the European Commission of Human Rights on 19 January 1995,

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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

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,

The applicant, Mrs C.D., is a Polish national who was born in 1930 and lives in Warsaw. She was represented before the Court by Mr R. Nowosielski, a lawyer practising in Gdańsk. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

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

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 and her 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 (merits) [GC], no. 31443/96, ECHR 2004-V, §§ 10-12 and 39-45).

On 18 October 1989 the Tarnów District Court (Sąd Rejonowy) gave a decision declaring that the applicant, her mother and her siblings had acquired her late father's estate and that they were entitled to receive one quarter each.

On 8 September 1990 the applicant asked the Warsaw District Office (Urząd Rejonowy) to enable her to acquire State property in compensation for the property abandoned in the territories beyond the Bug River.

On 20 November 1990 the authorities informed her that her claim had been entered in the relevant register as claim no. Z/708/90 but its realisation depended on the adoption of future measures by Parliament in respect of Bug River claims.

On 13 December 1990 the Warsaw District Court gave a declaratory judgment stating that the applicant's parents had owned real property in the territories beyond the Bug River.

Later, the applicant made many attempts to acquire compensatory property from the State but to no avail.

The applicant's mother died on an unspecified date. On 1 March 1996 the Białystok District Court gave a decision declaring that the applicant and her siblings had acquired their late father's estate and that they were entitled to receive one third each.

On 15 April 1998 the applicant obtained a certificate issued by the Head of the Warsaw District Office (Kierownik Urzędu Rejonowego) confirming that she and her siblings had the right to compensation for the property abandoned by their family, valued at 146,590 Polish zlotys (PLN) as of 2 March 1998.

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 (merits), cited above, §§ 48-61, 69 87 and 168-176).

On an unspecified date in 2006 the applicant initiated proceedings under the Law on the realisation of the right to compensation for property left beyond the present borders of the Polish State (Ustawa o realizacji prawa do rekompensaty z tytułu pozostawienia nieruchomości poza obecnymi granicami państwa polskiego) (“the July 2005 Act”) in order to obtain compensation for the Bug River property. On 15 April 2006 the authorities issued a certificate stating that the applicant was entitled to 20% of the Bug River property's current value and that her claim would be realised by means of a cash payment.

On 30 March 2007 the National Economy Bank (Bank Gospodarstwa Krajowego) credited the applicant's bank account with an amount corresponding to 20% of the current value of her share in the family's Bug River property.

In a letter of 1 October 2007 the applicant informed the Court that she wished to pursue her application before the Court and assert her right to the remaining 80% of the current value of the original property under Article 1 of Protocol No. 1 to the Convention.

A detailed description of the relevant domestic law and practice concerning the Bug River property are 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) [GC], no. 31443/96, §§ 14-30, ECHR 2005-IX.

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, ECHR 2007-...; and Witkowska-Toboła v. Poland (dec.) no. 11208/02, 4 December 2007, §§ 22 27.

The applicant in essence complained about the State's continued failure to secure the implementation of her right to compensation for the Bug River property in the period before the entry into force of the July 2005 Act and about the subsequent reduction of her compensatory entitlement to 20% of the original property's current value. She alleged a violation of Article 1 of Protocol No. 1 to the Convention.

The present case, like some 190 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).

“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

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.”

The Government, relying on the fact that the applicant had already satisfied her entitlement to compensation under the July 2005 Act and on the Court's decisions in the cases of Wolkenberg and Others v. Poland and Witkowska-Toboła v. Poland (cited above), in particular the Court's finding that the matter involved in those cases and the remaining Bug River cases had been resolved for the purposes of Article 37 § 1 (b) of the Convention, invited the Court to strike the present application out of its list of cases.

The applicant, like the applicants in the cases of Wolkenberg and Others v. Poland and Witkowska-Toboła v. Poland (see, for instance, Wolkenberg and Others (cited above, §§ 45-51) maintained that the reduction of her compensatory entitlement to a mere 20% of the original property's value amounted to an interference with her accrued property right that could not be justified under Article 1 of Protocol No. 1 to the Convention.

She also criticised the indexation method – the retail price index – used by the State in respect of Bug River claims, arguing that it was unfair and that it had adversely affected the value of her claim.

In sum, the applicant asked the Court to find a violation of Article 1 of Protocol No. 1 to the Convention in respect of the past and the present operation of the Bug River legislation in Poland.

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 the applicant satisfied her claim to the full extent defined 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.

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You are here: BAILII >> Databases >> European Court of Human Rights >> C.D. v POLAND - 27909/95 [2008] ECHR 1095 (23 September 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1095.html Cite as: [2008] ECHR 1095