BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF KROSTA v. POLAND
(Application
no. 36137/04)
JUDGMENT
STRASBOURG
2 February
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to
editorial revision.
In the case of Krosta v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Fatoş
Aracı, Deputy Section Registrar,
Having
deliberated in private on 12 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36137/04) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Roman Krosta
(“the applicant”), on 27 August 2004.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged a breach of Article 6 § 1 of the Convention
in respect of the proceedings before the Polish-German
Reconciliation Foundation.
- On
24 January 2007 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1922 and lives in Nowe Brzesko.
- In
March 1940 the applicant was deported to Germany where he was
subjected to forced labour on three different farms until the end of
the Second World War. He worked on the same farm as M.P., his future
wife. On 30 April 1945 their daughter was born in Germany. After
the end of the war they all returned to Poland. They registered their
daughter as having been born in Poland on 13 May 1945, for fear
of negative consequences had they revealed that she was born in
Germany.
A. Proceedings before the Polish-German Reconciliation
Foundation concerning the applicant
- On
9 June 2001 the applicant applied to the Polish-German Reconciliation
Foundation (“the Foundation”) for compensation on account
of his forced labour during the war. That request was made under the
scheme for slave and forced labourers (“the second compensation
scheme”) established under the Joint Statement of 17 July 2000,
the German Law of 2 August 2000 on the Creation of the
“Remembrance, Responsibility and Future” Foundation (“the
German Foundation Act”) and the subsequent Agreement of
16 February 2001 between the Remembrance, Responsibility and
Future Foundation (“the German Foundation”) and the
Polish-German Reconciliation Foundation.
- It
appears that on 1 July 2004 the Foundation's Verification Commission
found that the applicant was eligible for benefits, as his
persecution fell under the 4th
category, which included persons who had been deported to Germany and
subjected to forced labour in agriculture. It consequently
awarded him the sum of EUR 1,124.84. The applicant did not
appeal against that decision.
B. Proceedings before the Polish-German Reconciliation
Foundation concerning the applicant's daughter
- On
an unspecified date the husband of the applicant's daughter applied
to the Polish-German Reconciliation Foundation for compensation on
account of her birth at a time when her parents had been forced
labourers in Germany. That request was made under the second
compensation scheme. On 28 August 2003 the Foundation's Verification
Commission refused the request by the applicant's daughter. The
applicant appealed against that refusal. He relied on a number of
statements provided by his fellow forced labourers. On 23 July
2004 the Foundation's Appeal Commission upheld the refusal. The
applicant was informed that during the negotiations in the framework
of the so-called “openness clause” it was agreed that
children born to parents deported to Germany and subjected to forced
labour there were eligible for benefits. However, according to the
documents in the file, including his daughter's identity card, she
had been born on 13 May 1945 in Poland. Furthermore, there were no
other documents in the file to confirm the applicant's assertion that
his daughter had been born in Germany and had returned with her
parents to Poland.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitutional provisions
- Article
9 of the Constitution, which was adopted by the National Assembly on
2 April 1997 and entered into force on 17 October 1997,
states:
“The Republic of Poland shall respect
international law binding upon it.”
Article
45 § 1 of the Constitution reads:
“Everyone shall have the right to a fair and
public hearing of his case, without undue delay, before a competent,
impartial and independent court.”
Chapter
VIII of the Constitution contains provisions related to the
judiciary. Article 175§ 1 of the Constitution provides:
“The administration of justice in the Republic of
Poland shall be implemented by the Supreme Court, the ordinary
courts, administrative courts and military courts.”
Article
177 of the Constitution states:
“The ordinary courts shall implement the
administration of justice concerning all matters save for those
statutorily reserved for other courts.”
Article 184, in so far as relevant, provides:
“The Supreme Administrative Court and other
administrative courts shall exercise, to the extent specified by
statute, control over the performance of public administration.”
B. The Agreement of 16 October 1991 and the
establishment of the Polish-German Reconciliation Foundation (first
compensation scheme)
- On
16 October 1991 the Governments of the Federal Republic of Germany
and the Republic of Poland concluded an agreement on the basis of
which the German Government declared that, prompted by humanitarian
considerations, it was prepared to contribute DEM 500 million
for the benefit of the Polish-German Reconciliation Foundation. The
Foundation was to be established by the Government of Poland
with a view to providing financial assistance to victims of Nazi
persecution who had been particularly wronged. The Foundation was
to determine the necessary criteria for the granting of
payments, having regard both to serious damage to the victims' health
and to difficulties in their current financial situation. The
Government of Poland declared that it would not pursue further
individual claims by Polish citizens arising out of Nazi persecution.
Both Governments indicated that their agreement should not amount to
limitation of the rights of citizens of either country.
- Subsequently,
on 27 November 1991, the Minister–Head of the Cabinet Office
(Minister – Szef Urzędu Rady Ministrów)
acting as a Founder,
made a declaration before the State Notary on the establishment of
the Foundation. He declared that, acting on the initiative of the
Government of the Republic of Poland and on behalf of the State
Treasury, he was establishing the Polish-German Reconciliation
Foundation. The Foundation's aim was to provide assistance to the
victims of Nazi persecution and to undertake other activities for the
benefit of those persons. The Minister also declared that the
Foundation's capital fund consisted of DEM 500 million,
contributed by the German Government to the Polish Government.
The Polish-German Reconciliation Foundation was established in
accordance with the Foundations Act of 6 April 1984, which regulates
the activities of foundations in Poland. In principle, supervision of
a foundation's activities is exercised by the regional governor
(Wojewoda) or the competent minister.
- The
Foundation's organs were the Supervisory Board (Rada Nadzorcza)
and the Management Board (Zarząd). The members of those
organs were appointed and dismissed by the Founder (government
minister) who exercised full control in this respect. The two other
organs of the Foundation were the Verification Commission (Komisja
Weryfikacyjna), and the Appeal Commission (Odwoławcza
Komisja Weryfikacyjna).
C. Compensation scheme for slave and forced labourers
(second compensation scheme)
- From
1998 to 2000 international negotiations took place on the issue of
compensation for persons subjected to slave or forced labour by Nazi
Germany. The government of Poland was one of the parties to these
negotiations. They were prompted by a number of lawsuits against
certain German companies before the courts in the United States in
which compensation was sought on account of forced labour during the
Second World War. The German companies against which the lawsuits had
been brought wished to bring them to an end and secure legal peace.
The negotiations concluded on 17 July 2000 with the adoption of a
Joint Statement which was signed by all the parties to the
negotiations, including the government of Poland.
- The
parties to the Joint Statement acknowledged the intention of the
Government of Germany and of the German companies concerned to accept
moral and historic responsibility arising from the use of slave and
forced labourers and from other injustices committed during the
National Socialist era and the Second World War. They affirmed their
consensus of 17 December 1999 on the establishment of the
Remembrance, Responsibility and Future Foundation, which was to be a
means of providing funds for victims from central and eastern
Europe, most of whom had benefited little from prior German
compensation and restitution programmes. The parties to the Joint
Statement further agreed to base their decisions regarding the
distribution of funds on the eligibility criteria set out in the
German Foundation Act.
- According
to the Joint Statement, the Government of Germany and the German
companies concerned undertook to contribute DEM 5 thousand million to
the Remembrance, Responsibility and Future Foundation. The Joint
Statement stipulated that the governments of the participating
central and eastern European States, including Poland, and the
government of Israel agreed to implement the necessary specific
measures within the framework of their national legal systems to
achieve legal peace.
- Subsequently,
on 2 August 2000 the German parliament enacted the Law on the
creation of the Remembrance, Responsibility and Future Foundation
(Gesetz zur Errichtung einer Stiftung “Erinnerung,
Verantwortung und Zukunft”; the German Foundation Act; the
GFA). It came into force on 12 August 2000. However, the
disbursement of payments only started on 30 May 2001, once the
relevant guarantees had been secured by the German companies
concerned with regard to the dismissal of the lawsuits filed against
them in the United States courts.
18. The
relevant parts of the Law on the creation of the Remembrance,
Responsibility and Future Foundation provide:
“Preamble
Recognising
that the National Socialist State inflicted severe
injustice on slave labourers and forced labourers, through
deportation, internment and exploitation, which in some cases
extended to destruction through labour, and through a large number of
other human-rights violations,
that German companies which participated in the National
Socialist injustice bear a historic responsibility and must
accept it,
that the companies which have come together in the
Foundation Initiative of German Industry [Stiftungsinitiative
der deutschen Wirtschaft] have acknowledged this responsibility,
that the injustice committed and the human suffering it
caused cannot be truly compensated by financial payments,
that the Law comes too late for those who lost their
lives as victims of the National Socialist regime or have died in the
meantime,
the German Bundestag acknowledges political and
moral responsibility for the victims of National Socialism. The
Bundestag also intends to keep alive the memory of the
injustice inflicted on the victims for coming generations. (...)
Section 1 – Establishment and headquarters
(1) A legally recognised Foundation with the
name 'Remembrance, Responsibility and Future' shall be established
under public law. (...)
Section 2 – Purpose of the Foundation
(1) The purpose of the Foundation is to make
financial compensation available through partner organisations to
former forced labourers and to those affected by other injustices
from the National Socialist period. (...)
Section 9 – Use of Foundation Resources
(...) (8) In concert with the Board of Trustees, the
partner organizations may subdivide the category of forced labourers,
within its quota, in accordance with Section 11, Paragraph 1,
Sentence 1, Number 1, insofar as this involves persons interned in
other places of confinement, as well as affected persons within the
meaning of Section 11, Paragraph 1, Sentence 1, Number 2, into
subcategories depending on the severity of their fate and may set
correspondingly gradated maximum amounts. This shall also apply to
the eligibility of legal successors. (...)
Section 10 – Distribution of resources through
partner organisations
(1) The approval and disbursement of one-off
payments to those persons eligible under section 11 will be carried
out through partner organisations. The Foundation is neither
authorised nor obligated in this regard. The board of trustees may
opt for another mode of payment. (...)
Section 11 – Eligible persons
(1) Eligible under this Law are:
1. persons who were held in a concentration
camp as defined in section 42(2) of the German Indemnification Act
[Bundesentschädigungsgesetz] or in another place
of confinement outside the territory of what is now the Republic
of Austria or a ghetto under comparable conditions and were subjected
to forced labour;
2. persons who were deported from their
homelands into the territory of the German Reich within the borders
of 1937 or to a German-occupied area, subjected to forced labour in a
commercial enterprise or for public authorities there, and held under
conditions other than those mentioned in paragraph 1, or were
subjected to conditions resembling imprisonment or similar extremely
harsh living conditions; (...)
(2) Eligibility shall be demonstrated by the
applicant by submission of documentation. The partner
organisation shall take into account relevant evidence. If no
relevant evidence is available, the claimant's eligibility may be
substantiated in some other way.
Section 13 – Application Eligibility
(1) Awards under section 11, paragraph 1, sentence 1,
numbers 1 or 2, or sentence 2 or sentence 5 are strictly personal and
individual and must be applied for in one's own name. In a case where
the eligible person has died after February 15, 1999, or where an
award under Section 11, Paragraph 1, Number 3 or Sentence 4 is being
applied for, the surviving spouse and children shall be entitled to
equal shares of the award. If the eligible person left neither a
spouse nor children, awards may be applied for in equal shares by the
grandchildren, or if there are no grandchildren living, by the
siblings. (...)
Section 19 – Appeals Process
The partner organizations are to create appeals organs
that are independent and subject to no outside instruction. The
appeals process itself is to be free of charge. However, costs
incurred by the applicant are not to be reimbursed.”
D. Judgment of the German Federal Constitutional Court
of 28 June 2004
- The
Federal Constitutional Court examined a constitutional complaint
against various provisions of the GFA which had been filed, among
others, by a former Italian military internee and a civilian who had
been subjected to forced labour.
The complainants alleged, inter alia, that prior to the entry
into force of the GFA they had had claims for compensation for forced
labour against the Federal Republic of Germany, under German civil
law in conjunction with international public law. They contended that
the exclusion of judicial review of decisions by the International
Organisation for Migration (one of the partner organisations) had
violated their right to an effective remedy under Article 19 § 4
of the German Basic Law. Furthermore, they argued that the exclusion
of former prisoners of war from the ambit of compensation under the
Foundation Act was discriminatory.
- On
28 June 2004 the Federal Constitutional Court held that the complaint
was partly admissible, but unfounded. Referring to the Hague
Convention on the Laws and Customs of War on Land (“The Hague
Convention”) the court held that international public law had
not established individual claims for compensation for forced labour.
It noted, however, that it was not excluded that national law might
establish such claims, but that in such a case the legislator enjoyed
wide discretion. The court held further that the exclusion by section
11 § 3 of former prisoners of war from the scope of those
eligible for benefits under the Foundation Act had not been
discriminatory, since under the Hague Convention prisoners of war
could be compelled to perform labour. In this respect the court
observed that the legislator was allowed to distinguish, when
awarding compensation, between victims of general hardships caused by
the war and victims of particular ideological persecution by the
Nazi regime, especially as the funds of the Foundation were
limited.
- In
respect of the exclusion of judicial review by the Foundation Act,
the Federal Constitutional Court found that Article 19 § 4 of
the Basic Law required that a right did in fact exist, whose alleged
violation could be examined by the courts. The court concluded
that the legislator was free to decide not to establish an
individual's claims vis-à-vis a public-law foundation
and to exclude judicial review in this connection.
E. Implementation of the second compensation scheme by
Poland
- On
10 August 2000 the Polish government submitted to Parliament a bill
on the exemption from tax and duties of payments received
in connection with Nazi persecution. In the explanatory
memorandum to the bill, the government stated that payment of
benefits in respect of forced labour for the Nazi regime had been
agreed in the course of negotiations involving the respective
governments, German companies and the victims. They further stated
that, as a result of the agreement with the Germans, Poland would
receive more than DEM 1.8 thousand million. On 21 September
2000 the Polish parliament enacted the Law on exemption of payments
received in connection with Nazi persecution from tax and duties.
That Law also exempted the Polish-German Reconciliation Foundation
from taxes due on funds received by the Foundation for the
distribution of payments. The Law came into force on 17 November
2000.
- On
16 February 2001 an agreement was concluded between the Remembrance,
Responsibility and Future Foundation and the Polish German
Reconciliation Foundation (“the partnership agreement”).
Under its terms the Polish German Reconciliation Foundation was
to act as a partner organisation of the German Foundation, with
a view to securing prompt disbursement of compensation payments to
slave and forced labourers (paragraph 1 of the agreement). Both
parties agreed to implement fully the provisions of the GFA and
declared that their agreement was in compliance with the Joint
Statement of 17 July 2000.
- The
above agreement further stipulated that the Polish Foundation, as a
partner organisation, was entrusted with determining eligibility for
compensation payments in respect of all claimants who resided on the
territory of Poland on 16 February 1999 (paragraph 2). The partner
organisation was to verify and determine whether the relevant
conditions for awarding payment had been established or substantiated
in some other way (paragraph 5.1). A claimant could appeal against a
decision taken by the partner organisation in respect of the grounds
of the decision or the amount of payment awarded before an
independent appeal body established within the partner organisation
(paragraph 5.5). Under paragraph 6.3 of the agreement, decisions
taken by the appeal body were final and could not be challenged
before a court (paragraph 3).
- The
Agreement of 16 February 2001 was accompanied by three annexes. Annex
no. 3 contained a declaration by the Polish government with regard to
responsibility for the disbursement of payments. The relevant parts
provide:
“Since 1998 the government of the Republic of
Poland has made exceptionally concerted efforts to secure payment of
compensation for slave and forced labour imposed by Nazi Germany. In
the negotiations, the government has played a significant role
on behalf of the representatives of the victims. Due to the
government's efforts, former slave and forced labourers will receive
in total DEM 1,812 thousand million, which constitutes a very
positive outcome to the negotiations.
The government of the Republic of Poland will endeavour
to ensure that the payments from the Remembrance, Responsibility and
Future Foundation, handled by the Polish-German Reconciliation
Foundation with the participation of Polish financial institutions,
will be processed properly. To that end the Polish authorities will
take steps with regard to the Polish-German Reconciliation Foundation
within their founding and supervisory competences.”
- The
statutes of the Polish-German Reconciliation Foundation was amended
on the initiative of its founder, namely the Minister of the State
Treasury, with a view to implementing the provisions of the GFA and
the Agreement of 16 February 2001; those amendments were subsequently
registered by the Warsaw District Court on 26 June 2001.
- The
amended statutes stipulated that the Foundation was to disburse
payments to the victims specified in section 11 of the GFA from the
funds contributed by the German Foundation on the basis of the same
Act (paragraphs 6.2 and 9.2). It further specified that the
Foundation's decisions in individual cases were to be taken on the
basis of internal regulations. A decision in an individual case
could be appealed against; however, a decision taken after an
appeal had been considered was final and no appeal lay against
it (paragraphs 6.4 and 6.5).
- Pursuant
to paragraph 20 of the amended statutes, the Verification Commission
(Komisja Kwalifikacyjna) was to determine individual claims
for assistance filed by victims of Nazi persecution. Members and the
president of the Verification Commission were to be appointed and
dismissed by the Foundation's management board (paragraph 21.1).
Detailed regulations as to the organisation of the Verification
Commission and the rules and criteria on the granting of assistance
were specified in the internal regulations of the Verification
Commission, drafted by the management board and adopted by the
supervisory board (paragraph 21.2).
- Decisions
taken by the Verification Commission could be appealed against to the
Appeal Commission (Komisja Odwoławcza). Its president and
members are appointed and dismissed by the Foundation's management
board, having consulted the supervisory board. The Appeal Commission
operates on the basis of internal regulations drafted by the
management board and adopted by the supervisory board (paragraph
23.2). The amended statutes stipulated that the decisions of the
Appeal Commission were final (paragraph 23.3).
- On
31 December 2006 the Foundation terminated the disbursement of
payments under the second scheme.
F. Case-law of the Polish courts
- In
1997 the Ombudsman referred to the Supreme Court a question of law
(pytanie prawne), as to whether decisions given by the organs
of the Foundation could be appealed to the Supreme Administrative
Court and, if not, whether they could be subjected to judicial
review in civil proceedings. On 31 March 1998 the Supreme Court
adopted Resolution no. III ZP 44/97, holding that, since
administrative functions could only be delegated by statute,
which was not the case with regard to the Polish German
Reconciliation Foundation, its decisions did not meet the
requirements of an administrative decision and thus could not be
appealed to the Supreme Administrative Court. However, the Supreme
Court refused to give a definite answer as to whether the
Foundation's decisions could be subject to judicial review in
civil proceedings. It nevertheless observed that entitlement to
receive a benefit from the Foundation did not fall within the scope
of civil law, and thus could not be raised before a civil court.
In exceptional cases, such as where the claimant's eligibility
had been established but the benefit was not paid, a claim could
arise under civil law.
- In
Resolution no. OPS 3/01 of 3 December 2001, the Supreme
Administrative Court upheld the earlier case-law to the effect that
it did not have jurisdiction to review the decisions of the
Foundation and observed that:
“The Polish-German Reconciliation Foundation,
which awards benefits to the victims of Nazi persecutions using the
financial resources allocated to it by foreign entities, does not
perform functions in the area of public administration. Thus, the
source of the entitlement to receive an award from the Foundation
does not stem from actions of the public administration.”
It
further observed:
“There is no doubt that the Agreement of 16
October 1991, concluded between the Polish and German Governments,
which was not ratified, as well as subsequent acts [starting with the
Joint Statement and the German Foundation Act] concerning grants of
financial assistance by the Foundation on account of Nazi persecution
do not fulfil the criteria which would make it possible to classify
them as sources of binding Polish law. No administrative-law relation
arises between a claimant and the Foundation on the basis of the
aforementioned acts, and consequently the Foundation is not an organ
of public administration established by law to determine cases in the
sphere of public administration.”
G. The Poznań Court of Appeal's decision of 14
January 2005, no. I ACz 3043/04
- The
Poznań Court of Appeal examined an interlocutory appeal against
a first-instance judicial decision rejecting a plaintiff's claim
against the Foundation based on Article 189 of the Code of Civil
Procedure. It quashed the decision under appeal and remitted the
case. The Court of Appeal held that a decision determining
whether the Foundation had been obliged to pay benefits to a claimant
was a decision on the merits of a claim. Accordingly, it should have
been determined by way of a judgment.
H. The Supreme Court's Resolution of 27 June 2007,
no. III CZP 152/06
- On
27 June 2007 the Supreme Court adopted Resolution no. III CZP 152/06
in response to a question of law put forward by the Ombudsman.
It revisited its earlier case-law on the interpretation of the
notion of a “civil case” laid out in Article 2 of the
Code of the Civil Procedure in relation to claims against the
Foundation.
The Supreme Court held that:
“The [civil] courts have jurisdiction in the case
where a claimant – due to an unfavourable decision by
the “Polish-German Reconciliation” Foundation –
is seeking a payment [from the Foundation] in respect of Nazi
persecution.”
In
the reasons for its Resolution the Supreme Court found, inter
alia,
that:
“The procedure concerning examination of claims
under the first and the second German fund ... may not be currently
instituted. The relevant funds were allocated and the disbursement of
payments has been finally concluded. (...)
There is no doubt that the current state of affairs
resulting from the relevant case law, under which those persons
interested in challenging before a court the Foundation's refusal to
grant them a suitable payment are deprived of such a possibility,
cannot be accepted in the light of the binding constitutional and
Convention standards. Article 184 § 1 in conjunction with
Article 177 of the Constitution establishes a presumption in favour
of jurisdiction of the ordinary courts which indicates – at
least indirectly – that a possible jurisdiction of the
administrative courts should be based on a specific statutory rule.
(...)
The need for extensive interpretation of the
individual's access to a court, or in other words, the right to bring
an action (the right to a court) follows also from Article 6 § 1
of the Convention and Article 14 § 1 of the International
Covenant on Civil and Political Rights, which stipulate that everyone
is entitled to a fair and public hearing by an independent and
impartial tribunal established by law in the determination of his
civil rights and obligations. It may be assumed from the established
case-law of the European Court of Human Rights that Article 6 §
1 of the Convention guarantees to everyone the inalienable right to
submit for a judicial determination any claims concerning civil
rights and obligations.... Obviously, the right to a court does not
denote the right to “win” a case, but it signifies that
the filed claim should be examined by a court and determined on
the merits (judgment of the Supreme Court of 3 January 2007, no. IV
CSK 312/06, unpublished).
The results of interpretation of Articles 1 and 2 of the
Code of Civil Procedure thus require us to acknowledge that the
[civil] court has jurisdiction where a case has the features of a
civil case in the substantive sense and where no particular provision
delegates its examination and determination to a different organ than
an ordinary court. The [civil] court also has jurisdiction where a
case has the features of a civil case only in the formal sense.”
I. The Constitutional Court's decision of 14 November
2007 in case no. SK 53/06
- A
certain S.K. filed a constitutional complaint with the Constitutional
Court after the administrative court rejected his appeal against
inactivity of the Foundation, stating that it did not have
jurisdiction. He challenged the constitutionality of certain
provisions of the Law of 25 July 2002 on the Structure of
Administrative Courts and of the Law of 30 August 2002 on
Procedure before Administrative Courts, which delineated the
jurisdiction of the administrative courts. On 14 November 2007
the Constitutional Court discontinued the proceedings on procedural
grounds. It found that the claimant had not obtained a “final
decision” within the meaning of Article 79 of the Constitution,
since he had mistakenly seized the administrative courts and not the
civil courts to pursue his appeal against the Foundation's decision.
The Constitutional Court relied on the constitutional presumption in
favour of jurisdiction of the civil courts and the Supreme Court's
Resolution of 27 June 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION
- The
applicant complained under Article 4 of the Convention about his
forced labour during the Second World War.
- The
Court notes that the applicant's deportation to the German Reich
and his forced labour there are not attributable to the Polish State.
Accordingly, this complaint is incompatible ratione personae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article 35 § 4
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE PROCEEDINGS CONCERNING THE APPLICANT
- The
applicant contested the amount awarded by the Polish Foundation on
account of his forced labour during the war. He did not rely on any
provision of the Convention. The Court considers that the applicant's
complaint falls to be examined under Article 6 § 1 of the
Convention, the relevant parts of which provide:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing
... by an independent and impartial tribunal established by law. ...”
- The
Government argued that Article 6 § 1 was not applicable to
the proceedings at issue and that the applicant had not exhausted the
relevant domestic remedies.
- In
so far as the applicant complained about the unsatisfactory amount of
compensation awarded by the Polish Foundation on account of his
forced agricultural labour, the Court observes that the applicant did
not claim to come under another, more favourable, category of
eligibility. He limited himself to contesting the amount awarded by
the Polish Foundation as not commensurate with his hardship. However,
the Court observes that the Foundation acknowledged his deportation
and forced labour in agriculture and awarded him the amount of
EUR 1,124.84, which was applicable to that category of
eligibility. The applicant did not submit any arguments which would
cast doubt on the classification of his persecution under the
eligibility conditions as set out in the GFA. The Court considers
that the applicant did not indicate any legal basis for his claim
to have a right to receive further compensation from the
Foundation (see Jakowicz v. Poland (dec.), no. 16778/02,
§ 83, 13 October 2009). Consequently, this complaint is
incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 35 § 3 and must be
declared inadmissible pursuant to Article 35 § 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE PROCEEDINGS CONCERNING THE APPLICANT'S
DAUGHTER
- The
applicant complained that his daughter had been refused compensation,
following a flawed assessment of the relevant facts by the
Foundation. He claimed that there had been no authority which could
have reviewed the Foundation's decisions. He did not invoke any
provision of the Convention. The Court considers that the applicant's
complaint concerns the lack of access to a court in respect of the
claims raised before the Polish Foundation and falls to be examined
under Article 6 § 1 of the Convention, the relevant parts of
which provide:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing
... by an independent and impartial tribunal established by law. ...”
A. Preliminary issue
- The
Government submitted that the applicant had originally lodged his
application against the Federal Republic of Germany. They were of the
opinion that the application should have been communicated to the
German Government with a view to enabling the Court to examine
it in a comprehensive manner. The present case
concerned the second compensation scheme in which the Polish
Foundation had acted in conformity with the GFA. The Government
maintained that the communication of the present application to the
Polish Government was contrary to the applicant's will and in
contravention of Article 34 of the Convention.
- The
applicant did not comment.
- The
Court observes that a similar argument submitted by the Government in
the case of Jakowicz was dismissed (see, Jakowicz v. Poland,
cited above, § 54). In particular, the Court recalled its
finding made in the Woś judgment that the responsibility
of the Polish State was engaged in respect of both the first and the
second compensation schemes (see, Woś v. Poland, no.
22860/02, § 54, ECHR 2006 VII). In addition, the Court
notes that in his initial correspondence with the Court the applicant
indicated both Poland and Germany as the respondent States.
Furthermore, the Court considers that the principal issue in the case
concerns the assessment of the applicant's claims by the Polish
Foundation and the lack of judicial review of the Polish Foundation's
decisions. Having regard to the foregoing, the Court finds that it
was not required to communicate the case to the German
Government.
B. Compatibility ratione personae
- The
Government argued that the complaint was incompatible ratione
personae with the Convention since the applicant had no
legitimate interest in pursuing the application on behalf of his late
daughter. Relying on section 13 of the GFA, they indicated that the
benefits granted by the Foundation were of a personal character and
that parents were not entitled to receive benefits from the
Foundation on account of the persecution of their late children. They
underlined that the only person entitled to pursue the claim of the
applicant's late daughter was her husband. The Government maintained
that the applicant had failed to show that he had been directly
affected by the Foundation's decisions in respect of his daughter.
- The
applicant did not comment.
- The
Court observes that the husband of the applicant's daughter applied
to the Foundation for benefits on account of her birth during the
period when her parents had been subjected to forced labour in
Germany. The Foundation's Verification Commission dismissed that
claim on 28 August 2003 and the applicant subsequently
filed an appeal against the unfavourable decision. On 23 July 2004
the Foundation's Appeal Commission examined the applicant's appeal
and upheld the original decision. The Court considers that it does
not need to pronounce on the applicant's standing in the proceedings
before the Foundation in the light of section 13 of the
GFA. It notes that the Foundation examined his appeal on the merits
and thus implicitly recognised that the applicant was entitled to
pursue the claim lodged on behalf of his daughter. Accordingly, the
Court finds that the applicant is entitled to pursue the present
application and dismisses the Government's plea of inadmissibility on
the ground of incompatibility ratione personae.
C. Applicability of Article 6 § 1
1. The parties' submissions
48. The
Government argued that Article 6 § 1 of the Convention was not
applicable to the proceedings before the Polish Foundation in respect
of the second compensation scheme as they did not concern the
determination of his civil rights and obligations. They restated
that the applicant had not been entitled to receive benefits on
behalf of his late daughter and thus the dispute over those benefits
between the applicant and the Foundation could not have arisen.
Nevertheless, the Government claimed that the civil disputes which
might have arisen between the Foundation and its beneficiaries fell
within the scope of “civil rights” since the civil courts
had jurisdiction to examine such disputes.
- The
applicant did not comment.
2. The Court's assessment
(a) Principles deriving from the Court's
case-law
- The Court reiterates that, according to the principles
laid down in its case law, it must first ascertain whether there
was a “dispute” (“contestation”) over
a “right” which can be said, at least on arguable
grounds, to be recognised under domestic law, irrespective of whether
this “right” is also protected under the Convention (see,
inter alia, Neves e Silva v. Portugal, 27 April 1989, §
37, Series A no. 153-A). The dispute must be genuine and
serious; it may relate not only to the actual existence of a right
but also to its scope and the manner of its exercise. The outcome of
the proceedings must be directly decisive for the right in question
(see, among other authorities, Athanassoglou and Others
v. Switzerland [GC], no. 27644/95, § 43, ECHR 2000-IV;
Mennitto v. Italy [GC], no. 33804/96, § 23,
ECHR 2000-X, and Markovic and Others v. Italy [GC], no.
1398/03, § 93, ECHR 2006 ...). Lastly, the right must be a
“civil” right.
(b) Application of the above principles to
the present case
- The
Court recalls that in the Woś judgment (see, Woś
v. Poland, no. 22860/02, ECHR 2006 VII) it examined a
similar complaint in respect of the first compensation scheme, set up
on the basis of the bilateral Polish German agreement of 16
October 1991 and found Article 6 § 1 applicable to the
proceedings before the Polish-German Reconciliation Foundation.
- In contrast, the present case concerns the second
compensation scheme, which was established following multilateral
negotiations with a view to providing compensation to slave and
forced labourers and other victims of the National Socialist period,
primarily from central and eastern Europe. The agreement reached in
the negotiations, in particular in respect of the categories of
persons who were eligible and the establishment of the German
Foundation as a means of providing funds to victims, was subsequently
incorporated in the German Foundation Act of 2 August 2000. Section
10 of the Act stipulated that partner organisations, including the
Polish Foundation, were entrusted with evaluation of claims and
disbursement of payment to eligible claimants. The same provision
stipulated that the German Foundation was neither authorised nor
obligated in respect of the approval and disbursement of payments by
the partner organisations. The particular feature of the second
compensation scheme was that the eligibility conditions had been
specified in the GFA, while at the same time the examination of
the relevant applications was to be carried out by the
partner organisations, including the Polish Foundation. The Court
considers that for all practical purposes, decisions to qualify
applicants as coming under a particular eligibility category and
to grant payments in respect of the claimants who resided in
Poland were taken by the Polish Foundation (see Woś v. Poland
(dec.), no. 22860/02, § 66, ECHR 2005 IV; Jakowicz
v. Poland (dec.), no. 16778/02, § 76 in fine, 13
October 2009). The Court notes that the German Foundation carried out
random checks of the decisions taken by the Polish Foundation, but in
its view this does not alter the conclusion that the Polish
Foundation played the main role in the process. In any event, there
is no evidence that the decisions in respect of the applicant's
claims were reviewed or altered by the German Foundation.
- In
the Woś judgment the Court held that the Convention
imposes no general obligation on the Contracting States to
provide redress for wrongs inflicted in the past under the general
cover of State authority (see also, mutatis mutandis,
Kopecký v. Slovakia [GC], no. 44912/98, § 38,
ECHR 2004 IX). This principle applies to the Federal
Republic of Germany in respect of wrongs or damage caused by the
German Reich (see Associazione Nazionale Reduci Dalla
Prigionia dall'Internamento e dalla Guerra di Liberazione
(A.N.R.P.) v. Germany (dec.), no. 45563/04, 4 September
2007; and Ernewein and Others v. Germany (dec.), no. 14849/08,
2 May 2009) but it is even more relevant for third States, like
Poland, who bear no responsibility in connection with wrongs
inflicted by a foreign occupying force or another State
(see, mutatis mutandis, Broniowski v. Poland [GC], no.
31443/96, § 124, ECHR 2004 V; Maltzan and Others
v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and
10260/02, § 77, ECHR 2005 V).
- However,
the Court recalls that if a compensation scheme were
to be established, the substantive regulations which
determined the eligibility conditions for any compensation would in
principle fall outside the Court's jurisdiction, unless the relevant
conditions were manifestly arbitrary or blatantly inconsistent with
the fundamental principles of the Convention (see Woś v.
Poland, cited above, § 72). In other words, when a State
decides to compensate the past wrongs for which it bore
no responsibility, it enjoys a significant discretion (grand
pouvoir d'appréciation) in determining the beneficiaries
and the modalities of any compensation scheme and, in principle, no
challenge to the eligibility conditions as such may be allowed (see
Maltzan and Others, cited above, § 77; Epstein
and Others v. Belgium (dec.), no. 9717/05, ECHR 2008 ...
(extracts)).
- The
Court observes that the compensation scheme established under the GFA
concerned claims of forced labourers and other victims of Nazi
Germany (see section 2 of the GFA on the purpose of the German
Foundation). As those claims date back essentially to the Second
World War there could be no question of the Polish State's
responsibility for the wrongs committed during that period. It is
clear that the Polish State have no obligations of any kind to
redress the wrongs inflicted by another State as its citizens were
victims and not perpetrators (see Woś v. Poland (dec.),
cited above, § 85).
- In
the context of the present case, the Court underlines that the
substantive eligibility conditions under the second scheme were
defined in the GFA and had to be applied as such by the partner
organisations, including the Polish Foundation. It follows that while
processing the applications the Polish Foundation was bound to follow
the substantive criteria as specified in the GFA and had no power
either to review its reasonableness or to unilaterally modify or
extend them. Thus, the Polish Foundation and, a fortiori, the
Polish State cannot bear responsibility in cases where an
applicant, due to the scope of the substantive eligibility conditions
as such, was not included in the group of persons entitled to certain
benefits. The Court emphasises that the Polish Foundation exercised
only a certain measure of discretion when assessing the facts
of individual cases and the evidence submitted by the claimants.
Its assessment of those elements was decisive for the outcome
of the proceedings before the Foundation. The Court
considers that the responsibility of the Polish State may be engaged
exclusively as regards those cases where the dispute concerns the
application of the eligibility conditions to the facts of individual
cases in the area falling within the Foundation's margin of
discretion. Accordingly, in each case it is necessary to determine
whether a claimant challenges the eligibility conditions or the
assessment of facts and evidence by the Polish Foundation and whether
that assessment remained within the Polish Foundation's margin of
discretion.
- Turning
to the circumstances of the present case, the Court recalls that the
applicant is entitled to pursue the present application in respect
of the claims asserted on behalf of his daughter since the
Polish Foundation regarded him as an entitled person (see paragraph
47 above). The Court notes that the applicant claimed that his
daughter had been born on 30 April 1945 and thus was entitled to
receive benefits under the so-called openness clause on account of
her birth during the period in which her parents were subjected to
forced labour in Germany. The applicant submitted that upon his
return he had registered his daughter as being born in Poland
on 13 May 1945 for fear of possible negative
consequences of disclosing the true date. In order to substantiate
the claim the applicant relied on two written statements provided by
his fellow forced labourers. However, the Polish Foundation held that
the documents in the file (the daughter's identity card) confirmed
that she had been born on 13 May 1945 in Poland. It found that there
were no documents in support of the applicant's assertion that his
daughter had been born on 30 April 1945 in Germany and accordingly
dismissed the claim.
- The
essence of the applicant's claim is that the Polish Foundation
wrongly considered that his daughter had not been born on 30 April
1945, i.e. during the period of his forced labour, and consequently
she was not eligible for benefits. In the present case the thrust of
the applicant's complaint is directed against the Polish Foundation's
erroneous assessment of the facts underlying his daughter's claim and
the resultant flawed application of the eligibility conditions to the
case (compare and contrast Jakowicz v. Poland (dec.), cited
above, § 80). In the case of Jakowicz the Foundation
dismissed the applicant's claims, which went beyond the scope of the
substantive eligibility conditions and as such were outside the
Foundation's remit. By contrast, in the present case the Polish
Foundation refused the applicant's claims while exercising its
discretion as to the assessment of the relevant facts
which had a direct bearing on the determination of the applicant's
eligibility status. Thus, the present case can be distinguished from
the Jakowicz case on the ground that it concerned a dispute
as to the assessment of relevant facts and not a challenge to the
substantive eligibility conditions. Accordingly, the Court finds that
the dispute arose between the applicant and the Polish Foundation as
regards the application of the eligibility conditions to his case.
- The
Court has next to determine whether the right to receive payment from
the Polish Foundation on account of forced labour or other form of
persecution was recognised, at least on arguable grounds, under
domestic law. The Court recalls that in the case of Associazione
Nazionale Reduci Dalla Prigionia dall'Internamento e dalla Guerra di
Liberazione (cited above), concerning the second compensation
scheme, it examined the complaints of former Italian POWs about the
exclusion of judicial review in respect of decisions rendered by
the International Organization for Migration (one of the partner
organisations). The Court found that as the applicants (former POWs)
had been clearly excluded from benefits under the German Foundation
Act they could not claim to have had a right to compensation. On
that ground, it distinguished the case from Woś and held
that Article 6 was not applicable to the facts of that case.
- The
Court considers that the present case is, in turn, distinguishable
from the Associazione Nazionale Reduci decision, in that it
concerns the arguable claim of a person born during the period of her
parents' deportation and forced labour in Germany whose request was
dismissed for failure to establish that she in fact had been born
during the relevant period. In contrast, the Associazione
Nazionale Reduci case dealt with persons who had been expressly
excluded from the ambit of the second compensation scheme on account
of their undisputed POW status, and thus no question of a right
to compensation could arise.
- The
Court notes that international public law does not establish
individual claims for compensation for forced labour (see
Associazione Nazionale Reduci decision which referred to the
judgment of the Federal Constitutional Court of 28 June 2004). Such
claims could be established exclusively through domestic law, and in
such a case the legislator enjoys a wide margin of discretion,
as noted above. In this respect the Court observes that the
conditions and procedures with which a claimant had to comply
before a payment could be awarded by the Polish Foundation were first
agreed in the course of multilateral negotiations, then laid out
in the GFA and subsequently transposed into the regulations
binding on the Foundation via the Partnership Agreement of
16 February 2001 and any subsequent agreements concluded in the
framework of the so-called openness clause. The Polish Foundation's
statutes were subsequently amended with a view to implementing the
provisions of the GFA and the Agreement of 16 February 2001.
Thus, the Foundation's regulations stipulated the conditions which
had to be fulfilled by a person seeking benefits. It is noteworthy
that the Supreme Court in its Resolution of 27 June 2007
found that the basis of the rights of a person seeking payment from
the Polish Foundation were the Foundation's statutes, the rules of
the Verification Commission and the relevant provisions of the GFA.
The Court is mindful of the particular character of the legal regime
governing the second compensation scheme which defined the categories
of eligible claimants. Nevertheless, it finds that the Polish
Foundation's regulations could be considered to create a right for a
claimant arguably fulfilling the relevant eligibility conditions to
claim compensation from the Foundation (see, mutatis mutandis,
Woś v. Poland (dec.), cited above, § 83).
- The
Court notes that the payments at issue were voluntary in the sense
that the States were free to establish the scheme and to determine
the scope of its beneficiaries. However, once such general scheme has
been adopted and once a claimant could be reasonably considered to
have complied with the eligibility conditions stipulated in the GFA
and in the Foundation's regulations, he or she had a right to be
awarded payment by the Foundation (see Rolf Gustafson v.
Sweden, 1 July 1997, § 40, Reports 1997 IV and Woś
v. Poland, cited above, § 75). The Court points out that
in the somewhat similar area of social security and welfare
benefits, many domestic legal systems provide for those benefits to
be paid - subject to the fulfilment of the conditions of eligibility
- as of right (see Stec and Others v. the United Kingdom
(dec.) [GC], nos. 65731/01 and 65900/01, ECHR 2005 X, §
51). In conclusion, the Court finds that the Foundation's bodies had
thus to determine a dispute concerning a right asserted by the
applicant.
- As
to the “civil” character of the right asserted by the
applicant, the Court reiterates that the concept of “civil
rights and obligations” is not to be interpreted
solely by reference to the respondent State's domestic law. Article 6
§ 1 of the Convention applies irrespective of the status of the
parties, the character of the legislation which governs how the
dispute is to be determined and the character of the
authority which is invested with jurisdiction in the matter (see,
among other authorities, Georgiadis v. Greece, 29 May
1997, § 34, Reports 1997-III).
- The
Court reiterates that in the Woś judgment, which
concerned similar claims under the first compensation scheme, it held
that those claims could be considered “civil” within the
meaning of Article 6 § 1 (see Woś v. Poland,
cited above, § 76). In reaching that conclusion, the Court had
regard, inter alia, to the similarities between the
compensation claims asserted before the Foundation and disputes over
entitlement to social security and welfare benefits, which generally
fall within the scope of Article 6 (see Mennitto v. Italy
[GC], no. 33804/96, § 28, ECHR 2000 X; Tsfayo v. the
United Kingdom, no. 60860/00, § 39, 14 November 2006).
- Further,
the Court notes that the Supreme Court in its resolution of 27
June 2007, referring extensively to the Woś judgment,
found that a claim against the Foundation was to be considered a
“civil” claim in a formal sense for the
purposes of establishing court jurisdiction. The Court consequently
finds that the applicant's right to claim compensation from the
Foundation on account of his forced labour could be considered
“civil” for the purposes of Article 6 § 1 of the
Convention. For the above reasons the Court finds that the right to
compensation asserted by the applicant under the second compensation
scheme is a civil right within the meaning of Article 6 § 1 of
the Convention and that this provision is applicable to the
proceedings before the Foundation in the applicant's case.
D. Exhaustion of domestic remedies
1. The parties' submissions
- The
Government argued that the applicant had failed to exhaust relevant
domestic remedies as he had never challenged the Foundation's
decisions in a domestic court. The applicant could have requested to
have the claims lodged on behalf of his daughter determined in the
civil proceedings relying on Article 189 of the Code of Civil
Procedure, having regard to the fact that the claims were related to
the property rights and that the Polish Foundation operated under
private law. The Government invoked the decision of the Poznań
Court of Appeal of 14 January 2005, no. I ACz 3043/04
in order to refute the applicant's assertion that judicial review of
the Foundation's decisions had been excluded. The Court of Appeal
held that a decision determining whether the Foundation had been
obligated to pay benefits to a claimant was a decision on the merits
of a claim and should be examined by the court as such.
Accordingly, in the Government's view, the Court of Appeal's decision
confirmed that the determination of the right to receive payment from
the Foundation could have been pursued under Article 189 of the Code
of Civil Procedure.
- The
Government further underlined that the Supreme Court's Resolution of
27 June 2007 confirmed their earlier submission that judicial review
of the Foundation's decisions had been available to claimants.
Accordingly, all persons seeking benefits from the Foundation could
have contested its decisions before the civil courts. The applicant
should have resorted to that remedy before he filed his case in
Strasbourg. In the Government's view, the said Resolution confirmed
that the right to appeal against the Foundation's decisions stemmed
directly from the Constitution and the Code of Civil Procedure.
- Secondly,
even assuming that his civil suit had been rejected, the applicant
could have availed himself of a constitutional complaint. In his
constitutional complaint the applicant, who maintained that the right
to receive payment from the Foundation was of a civil character,
could have raised the question of compatibility of Articles 1 and 2
of the Code of Civil Procedure with Article 45 of the Constitution.
The Government drew an analogy between the present case and the
situation which obtained in the Constitutional Court's judgment of 10
July 2000 (case no. SK 12/99). In that case, a student whose
claims against a university had been rejected by civil courts for
lack of jurisdiction lodged a constitutional complaint, raising the
question of the compatibility of Articles 1 and 2 of the Code
of Civil Procedure with Article 45 of the Constitution. The
Constitutional Court ruled that Article 1 of the Code of Civil
Procedure, interpreted as not including in the notion of “civil
case” certain pecuniary claims stemming from an administrative
decision, was incompatible with Article 45 of the Constitution.
Furthermore, the Government argued that the decision of the
Constitutional Court of 14 November 2007 in case no. SK 53/06
confirmed that the applicant should have instituted proceedings
against the Foundation before the civil courts.
- The
applicant did not comment.
2. The Court's assessment
- The
Court has first to determine whether the applicant was required to
pursue the claims against the Foundation in a civil court. The
Government, relying on the Poznań Court of Appeal's decision
of 14 January 2005, contended that such possibility had
been open to the applicant. In their view, this assertion was further
confirmed by the Supreme Court's Resolution of 27 June 2007. The
Court observes, however, that the Supreme Court in its authoritative
decision given by a panel of seven judges stated firmly that,
prior to its Resolution, interested persons had been deprived of a
possibility to challenge the Foundation's decisions in a court.
The Supreme Court found that the prevailing trend in the case law of
the civil courts was the exclusion of judicial review in respect
of those decisions. It noted that the Poznań Court of
Appeal's decision of 14 January 2005 and the Szczecin Court
of Appeal's decision of 12 July 2006 took a different
approach. However, those decisions did not affect the Supreme Court's
conclusion as to the earlier lack of availability of judicial
review. The Court notes that it was only the Supreme Court's
Resolution which, having regard, among others, to the Woś
judgment, reinterpreted the notion of a “civil case”
and acknowledged that such claims could be heard by civil courts.
Accordingly the Court finds that prior to 27 June 2007 the
availability of judicial review in respect of the Foundation's
decisions had not been sufficiently established and the applicant
could not be reproached for failing to institute civil proceedings
against the Foundation (see Woś v. Poland, cited above, §
106).
- The
Government lastly contended that, in any case, the applicant should
have availed himself of a constitutional complaint. The Court has
accepted that at the date of the lodging of his application in
Strasbourg, i.e. on 27 August 2004 the applicant was not
required to pursue his claims before the civil courts as – in
view of the settled case-law – such a course of action was
bound to fail. At the same time, in order to file a constitutional
complaint a claimant is obliged to obtain a final decision from a
court or an administrative authority (see Article 79 of the
Constitution). More importantly, the Court points out that a
constitutional complaint could be recognised as an effective
remedy only where the individual decision which allegedly violated
the Convention had been adopted in direct application of an
unconstitutional provision of national legislation
(see Szott-Medyńska v. Poland (dec.), no. 47414/99,
9 October 2003, and Pachla v. Poland (dec.), no. 8812/02, 8
November 2005). However, at the heart of the present case lies the
judicial interpretation of the relevant legislative provisions on
court jurisdiction, which resulted in a finding that neither the
civil nor the administrative courts could hear claims against the
Foundation (see Woś v. Poland, cited above, § 95).
As stated above, that problem of judicial interpretation was
eventually resolved by the Supreme Court's Resolution of 27 June
2007. The Court notes that the issue of whether civil or
administrative courts should hear such claims was also debated by
legal writers.
- The
Court is aware that in exceptional cases the Constitutional Court may
examine a constitutional complaint against a provision of law in the
meaning attributed to it under consistent and long-standing judicial
or administrative practice, provided that such interpretation
has not been contested by legal writers (see, inter alia, the
Constitutional Court's judgment of 31 March 2005, case no. SK 26/02,
§ 5.3, with further references). However, it is not satisfied
that the prerequisites for lodging such a constitutional complaint
were met in the present case. Lastly, the Court notes that the
Constitutional Court's decision of 14 November 2007 in case no. SK
53/06 was given after the present application had been lodged. For
the above reasons the Court considers that a constitutional complaint
cannot be regarded with a sufficient degree of certainty
as an effective remedy in the applicant's case.
- It
follows that the Government's plea of inadmissibility on the ground
of non-exhaustion of domestic remedies must be dismissed.
E. Conclusion as to admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
F. Compliance with Article 6 § 1
1. The parties' submissions
- The
Government argued that the complaint under Article 6 § 1 of the
Convention was manifestly ill-founded. The question of access to a
court had not arisen, since the applicant had never instituted
judicial proceedings at the domestic level. They restated that
Article 6 § 1 was not applicable to the proceedings at
issue and thus the operation of the Foundation's bodies could not be
examined under this provision. They further argued that the
Foundation's organs which dealt with the applicant's case had been
established in accordance with section 19 of the GFA and the
Agreement of 16 February 2001 between the German and the Polish
Foundation. Section 19 of the GFA stipulated that the partner
organisations were to create appeals organs which were
independent and subject to no outside instruction. The Partnership
Agreement contained further detailed regulations in this respect. In
so far as the appeal procedure was concerned the Polish Foundation
operated within the legal framework set out in the GFA and the
Partnership Agreement.
- The
Government underlined that the decisions of the Foundation's
Verification Commission and the Appeal Commission were subject
to scrutiny of the German Foundation. The latter could review
decisions taken by the partner organisation after the appeal
procedure had been concluded. To this end the Polish Foundation had
to allow the German Foundation access to the relevant documents at
any time. If grossly incorrect decisions were discovered during such
inspection, the Polish Foundation had to reopen the procedure and
remedy the issue in a new decision. Furthermore, the German
Foundation could quash decisions of the Polish Foundation and reopen
a case. The Government stressed that the German Foundation could have
ordered an audit of the Polish Foundation. Therefore, it was the
German Foundation which exercised real control over the Polish
Foundation. The Foundation's bodies operated under the accessible
provisions of law determined in the Partnership Agreement and the
rules of procedure of the Appeal Commission were approved by the
German Foundation. The role of the Polish authorities was limited
to assessing whether the Polish Foundation operated in
conformity with the law.
- The
applicant maintained his application but did not submit specific
comments.
2. The Court's assessment
- Article 6 § 1 requires that in the determination
of civil rights and obligations, decisions taken by administrative or
other authorities which do not themselves satisfy the
requirements of that Article be subject to subsequent control by
a judicial body that has full jurisdiction (see Le Compte,
Van Leuven and De Meyere v. Belgium, 23 June 1981, § 51,
Series A no. 43; Woś v. Poland, no. 22860/02, § 92,
ECHR 2006 VII). The Court must therefore first ascertain whether
the Foundation's adjudicating bodies – the Verification
Commission and the Appeal Commission – could be considered as
tribunals conforming to the requirements of Article 6 § 1.
- The
Court notes that the Government stressed the significant role of the
German Foundation in the decision-making process concerning the
claims raised before the Polish Foundation. Even assuming that the
German Foundation could to some extent verify the correctness of the
decisions taken by the Polish Foundation, there is no evidence that
it had been involved in reviewing decisions taken in the applicant's
case. Thus, the Court, having regard to Article 10 of the GFA,
reaffirms that for all practical purposes, decisions to grant
payments in respect of the claimants who resided in Poland were taken
by the Polish Foundation (see Woś v. Poland (dec.),
cited above, § 66; Jakowicz (dec.), cited above,
§ 76 in fine).
- According
to the Court's settled case law, a tribunal within the meaning
of that provision must satisfy a series of requirements –
independence, in particular of the executive, impartiality, duration
of its members' terms of office, and guarantees afforded by its
procedure – several of which appear in the text of Article 6 §
1 itself (see Belilos v. Switzerland, 29 April 1988,
§ 64, Series A no. 132; Demicoli v. Malta, 27 August
1991, § 39, Series A no. 210; and Cyprus v. Turkey [GC],
no. 25781/94, § 233, ECHR 2001 IV). In the
present case, as regards structural guarantees, the Court notes that
the members of the Verification Commission and the Appeal Commission
were appointed and dismissed by the Foundation's management
board and, in respect of the latter, in consultation with the
Foundation's supervisory board. The Foundation's statutes also
specified that the rules governing the operation of the Foundation's
adjudicating bodies were to be set out in the regulations drafted by
the management board and adopted by the supervisory board. The
Foundation's governing bodies were in turn appointed and dismissed by
the Government Minister at his or her full discretion (see paragraph
13 above). Furthermore, a degree of control and supervision over the
Foundation was exercised by the Government Minister. Furthermore,
it appears that the members of the Verification Commission and
the Appeal Commission did not have tenure. Thus, the Court considers
that the independence of the Foundation's adjudicating bodies,
despite the Government's arguments to the contrary in respect of the
Appeal Commission, was open to serious doubt. As regards procedural
guarantees, it appears that the adjudicating commissions had no clear
and publicly available rules of procedure (see H v. Belgium,
30 November 1987, § 53, Series A no. 127 B) and did not
hold public hearings. For these reasons, they cannot be regarded as
tribunals within the meaning of Article 6 § 1.
- Therefore,
in order for the obtaining situation to be in compliance with Article
6 § 1, the decisions of the Foundation's adjudicating bodies
should have been subject to review by a judicial body having full
jurisdiction. However, the Court notes that until June 2007 the
domestic courts' prevailing position, as confirmed in the Supreme
Court's Resolution of 27 June 2007, was that judicial review by
either administrative or civil courts in respect of the Foundation's
decisions was excluded (see paragraphs 31-32 and 34 above). At
this juncture, the Court observes that the Government also criticised
the applicant for having failed to institute judicial
proceedings against the Foundation in the civil courts prior to the
adoption of the Supreme Court's Resolution. It notes, however, that
the applicant was not obliged to pursue his claims before the courts,
as such action would obviously have been futile, having regard
to the settled case-law of the domestic courts at the relevant
period.
- The
Court observes that the major change in respect of the availability
of judicial review in civil proceedings came with the Supreme Court's
Resolution of 27 June 2007. The Supreme Court revisited the
existing practice and held that claims against the Polish Foundation
in respect of Nazi persecution were civil claims in the formal
sense. Accordingly, the civil courts had jurisdiction to examine such
claims. The Court very much welcomes such a positive development in
the Supreme Court's case-law which, at least in part, was prompted by
its judgment in the Woś case. However, as noted
above (see paragraph 70 above), the applicant in this case was not
required to attempt to seek judicial review of the Foundation's
decisions since such a possibility arose only near three years after
he had lodged his application.
- Having
regard to the above considerations, the Court considers that the
exclusion of judicial review in respect of the decisions given by the
Foundation in the applicant's case impaired the very essence of the
right of access to a court within the meaning of Article 6 §
1 of the Convention.
- It
follows that there has been a breach of Article 6 § 1 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 150,000 Polish zlotys (PLN) in respect
of non-pecuniary damage on account of his forced labour in
Germany and related suffering.
- The
Government argued that they were not responsible for the wrongs
suffered by the applicant during the Second World War. Furthermore,
in their view the applicant's claims were exorbitant.
- The
Court recalls that it found a violation of Article 6 § 1 as
regards the exclusion of judicial review of the Foundation's
decisions in respect of the claims asserted on behalf of the
applicant's daughter. The part of the application concerning the
applicant's forced labour and the unsatisfactory amount of
compensation granted by the Foundation in that respect was declared
inadmissible. Accordingly, the Court finds that there are no grounds
to make any award in respect of the applicant's claims.
B. Costs and expenses
- The
applicant did not submit claim for costs and expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the lack of
access to a court in respect of the proceedings before the
Polish German Reconciliation Foundation admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 2 February 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
