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FOURTH
SECTION
CASE OF SZAL v. POLAND
(Application
no. 41285/02)
JUDGMENT
STRASBOURG
18 May 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 Szal 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,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 27 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41285/02) 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, Ms
Stefania Szal (“the applicant”), on 7 November 2002.
- The
applicant, who had been granted legal aid, was represented by Ms B.
Słupska-Uczkiewicz, a lawyer practising in Wrocław. 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 14 December 2006 the President of the Fourth Section
decided to communicate the complaint concerning alleged lack of
access to court 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
1. Proceedings before the Polish-German Reconciliation
Foundation
- The
applicant was born in 1925 and lives in Przemyśl.
- During
the Second World War the applicant was subjected to forced labour on
a farm owned by a German family B. in Leutz (currently Lucień in
Poland).
- On
an unspecified date she submitted a request for compensation to the
Polish-German Reconciliation Foundation.
- On
17 April 2002 the Polish-German Reconciliation Foundation awarded the
applicant financial assistance in the amount of EUR 1,124.84. It
considered that the applicant’s persecution fell under the 4th
category. This category comprised persons who had been deported to
Germany and subjected to forced labour. The amount was to be paid in
two instalments, the first one in the sum of PLN 2,823 to be
paid from 24 April to 8 May 2002.
- On
29 July 2004 the Foundation gave a decision confirming payment of the
second instalment, in the amount of PLN 1,247, to be paid from
6 August to 20 August 2004.
- On
25 October 2004 the Director of Veterans’ Office gave a
decision by which he confirmed that the applicant complied with the
conditions set out in the applicable domestic law for obtaining the
status of a veteran on the strength of her imprisonment in the
concentration camp Gross-Rosen in January and February 1945.
- On
27 October 2005 the Przemyśl Regional Court gave a judgment by
which it confirmed that the applicant satisfied the requirements
which the applicable laws attached to the grant of war veteran status
and that she was permanently and totally unable to work. It further
stated that the applicant’s health made it impossible for her
to live independently. The court referred to medical reports prepared
for the purposes of the proceedings and to a unanimous medical
opinion given by a medical panel of the Social Insurance Authority
which had also confirmed that the applicant’s disability had
been caused by her stay in the German concentration camp during the
Second World War.
- On
22 June 2006 the Foundation refused to award further payment to the
applicant for her internment in the concentration camp, finding that
the available evidence, in particular written statements submitted by
witnesses, was insufficient proof that the applicant had been
imprisoned there. The applicant appealed.
- The
Foundation, by a decision of 4 July 2006, refused to allow her
appeal, reiterating the arguments on which it had relied in its
first instance decision.
2. Proceedings before civil courts
- On
25 July 2002 the Oleśnica District Court rejected the
applicant’s statement of claim under Article 189 of the Code of
Civil Procedure by which she had requested recognition (ustalenie)
that she had been working as a forced labourer in Leutzen during the
war, at a farm belonging to family B. The court had regard to a
resolution of the Supreme Court of 5 October 2001 (III CZP
46/01), by which the latter court had held that civil courts lacked
jurisdiction to examine any claims concerning forced labour during
the Second World War and that it could not be accepted that such
jurisdiction could be based on Article 189 of the Civil Code.
- The
applicant appealed. By a decision of 14 August 2002 the Wroclaw
Regional Court upheld the contested decision, fully sharing the
conclusions of the first-instance court. On an unspecified later date
the Regional Court refused to grant her legal aid for the purposes of
lodging a cassation appeal with the Supreme Court.
- On
5 February 2008 the Warsaw District Court dismissed the applicant’s
action by which she claimed PLN 70,000 from the State Treasury as
compensation for the State’s failure to legislate in order to
provide for social insurance entitlements to persons who during the
Second World War had been subjected to forced labour and persecution
in various factual contexts. The court observed that the applicant
was entitled to various social insurance payments arising out of her
bad health; in particular, she received a war veteran’s benefit
and a disability benefit granted to her under the universally
applicable provisions of social insurance laws. Moreover, no national
or international regulations obliged the Polish State to enact
legislation addressing specifically the compensation rights of
persons who had suffered during the Second World War and providing
for special entitlements for them.
- On
12 March 2009 the Warsaw Court of Appeal upheld this judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant law and practice concerning the Polish-German Reconciliation
Foundation is set out in the Court’s judgment in the case of
Kadłuczka v. Poland,
no. 31438/06, §§ 19-45, 2 February
2010.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- Relying
on Articles 1 and 6 of the Convention, the applicant complained that
she had been deprived of a fair trial in the proceedings before the
Foundation’s bodies. The Court considers that her complaint
concerns the lack of access to a court in respect of her 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. Applicability of Article 6 § 1
1. The parties’ submissions
- The
Government argued that Article 6 § 1 of the Convention was not
applicable to proceedings before the Polish Foundation in respect of
the second compensation scheme. The applicant received payment from
the Foundation on the basis of criteria which had been laid down in
German law. They submitted that there had been no “dispute”
over a “right” which had been recognised under the Polish
or German law. Nevertheless, the Government claimed that 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 contested the Government’s argument and argued that
the rights concerned were clearly of a civil character, within the
autonomous meaning of that term which should be given to it under the
established case law of the Court.
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, Związek Nauczycielstwa Polskiego v. Poland,
no. 42049/98, § 28, ECHR 2004 IX). 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, referred to above, 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’appreciation) 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 has 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 German Foundation Act and had to be applied as such by
the partner organisations, including the Polish Foundation. It
follows that when processing 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 notes that the
applicant claimed payment from the Foundation referring to her
imprisonment in a German concentration camp Gross-Rosen in January
and February 1945. In order to substantiate her claim the applicant
submitted written statements made by witnesses. However, the
Foundation refused to award payment to her, considering that the
available evidence was insufficient for a finding that she had indeed
been imprisoned in that camp.
- The
essence of the applicant’s claim is that the Polish Foundation
wrongly considered that she had failed to show that she had been a
prisoner of the concentration camp and, consequently, 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 her
claim and the resultant flawed application of the eligibility
conditions to her 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 Foundation refused the applicant’s claims
while exercising its discretion as to the assessment of relevant
facts which had a direct bearing on the determination of her
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
a dispute arose between the applicant and the Foundation as regards
the application of the eligibility conditions to her 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 claiming to have been
imprisoned by the German occupational authorities. In contrast, the
Associazione Nazionale Reduci case dealt with claims of
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 the
Associazione Nazionale Reduci decision). 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 a 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 Polish 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 her
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.
B. Exhaustion of remedies
1. The parties’ submissions
- The
Government argued that the applicant had failed to exhaust relevant
domestic remedies as she had never challenged the Foundation’s
decisions in a domestic court. She could have requested to have her
claims determined in civil proceedings relying on Article 189 of
the Code of Civil Procedure which provides that a plaintiff may
demand a judicial declaration as to the existence or non-existence of
a legal relationship or of a right if he or she has a legal interest
therein. Her claims were related to property rights and the Polish
Foundation operated under private law. Her claim was therefore of a
civil character.
The
Government invoked the decision of the Poznań Court of Appeal of
14 January 2005 (see paragraph 21 above) in order to refute the
applicant’s assertion that judicial review of the Foundation’s
decisions had been excluded. That court had 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 she filed her 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,
the applicant could have availed herself of a constitutional
complaint. In her 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.
- The
applicant argued that consistent case-law of the Polish courts
indicated that no judicial review was available at the material time
against decisions of the Foundation. In any event, the applicant had
tried to have recourse to the civil law remedy referred to by the
Government, but her claim based on Article 189 of the Civil Code was
rejected by the courts. Moreover, the appellate court refused to
grant her legal aid for the purposes of lodging a cassation appeal
against a decision of the second-instance court, despite the fact
that legal representation was mandatory and that the applicant could
not afford to pay the legal fees. The applicant concluded that she
had taken all possible steps in order to have the merits of her claim
submitted to a judicial examination, but to no avail.
2. The Court’s assessment
43. The
purpose of Article 35 § 1, which sets out the rule on exhaustion
of domestic remedies, is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged
against them before those allegations are submitted to the Court
(see, among other authorities, Selmouni
v. France
[GC], no. 25803/94, § 74, ECHR 1999 V). The rule
in Article 35 § 1 is based on the assumption,
reflected in Article 13 (with which it has a close affinity),
that there is an effective domestic remedy available in
respect of the alleged breach of an individual’s Convention
rights (see Kudła v. Poland [GC], no. 30210/96,
§ 152, ECHR 2000 XI).
- Nevertheless,
the only remedies which Article 35 of the Convention requires to
be exhausted are those that relate to the breaches alleged and at the
same time are available and sufficient. The existence of such
remedies must be sufficiently certain not only in theory but also in
practice, failing which they will lack the requisite accessibility
and effectiveness (see, inter alia, Scordino v. Italy
(no. 1) [GC], no. 36813/97, § 142, ECHR
2006 ...).
- In
so far as the Government rely on the possibility of pursuing the
applicant’s claim before a civil court on the basis of
Article 189 of the Code of Civil Procedure, the Court observed
that she availed herself of that possibility. However, the courts
refused to determine the merits of such claim, referring to the
earlier case-law of the Supreme Court. In this connection, the Court
notes that that court, in its Resolution of 27 June 2007, given
by a panel of seven judges, stated firmly that, prior to its
Resolution, interested persons had been deprived of the possibility
of challenging the Foundation’s decisions in a court. The
Supreme Court found that the prevailing trend in the case-law of the
civil courts was for exclusion of judicial review in respect of those
decisions. The Court notes that it was only that authoritative
decision of the Supreme Court 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.
- The
Government contended that, in any case, the applicant should have
availed herself of a constitutional complaint. The Court notes that
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). In the applicant’s
case, no final decision of a judicial authority was given, as the
applicant did not obtain legal aid for the purposes of pursuing her
case further by way of a cassation appeal.
More
importantly, the Court points out that it has held 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, among other
authorities, 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 was
ultimately 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.
C. 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.
D. 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. 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. 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 provided for by
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 the
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 the
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 role of the
Polish authorities was limited to assessing whether the Polish
Foundation operated in conformity with the law.
- The
Government concluded that the Foundation’s Appeal Commission
could not be considered a judicial body, and in any event Article 6 §
1 was not applicable to the proceedings before the 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
applicant submitted that she had been deprived of access to a court
which jurisdiction to review the decision given by the Polish
Foundation in her case. She emphasised that a judicial declaration
establishing facts which under the relevant provisions gave rise to
entitlement to payments provided for by the Polish and German
statutes was the only possibility open to her, and to persons in
similar situations, victims of various forms of persecution by the
German authorities during the Second World War, to prove that they
had satisfied the requirements to be granted compensation. However,
the courts refused to make such a declaration.
Moreover,
the Polish State, by participating in international agreements
concluded within the framework of the so called second
compensation scheme, at issue in the present case, had taken upon
itself the responsibility for the subsequent acts and failures of the
Foundation. The fact that the Polish State had been acting through
the Foundation, which was a private law institution, was insufficient
to absolve it from its responsibility.
- The
applicant stressed that the Foundation, when making its decision, had
disregarded the findings of fact made by the Przemyśl Regional
Court as to the applicant’s war veteran status and as to the
causal link between the persecution to which she had been subjected
during the Second World War and her disability. The outcome of the
case had hinged exclusively on the assessment of the evidence
submitted to the Foundation in support of her claim. The Foundation
had made its own assessment of the evidence which was unreasonable,
wholly arbitrary and ran counter to the findings of fact made in the
decision of the Polish administration by which veteran status had
been conferred on the applicant.
- The
applicant referred to the Court’s judgment in the case of Woś
v. Poland, no. 22860/02 and concluded that in view of
the similarities between the shortcomings which the Court criticised
in that case and the circumstances of the present case, it was
obvious that the applicant’s right of access to a court had
also been breached.
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 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.
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 situation obtaining 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 19 –
23 above).
- 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.
- 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
her 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained that the courts had wrongly assessed the
evidence and, as a result, had failed to establish correctly the
facts of the civil cases in which she had been a plaintiff and had
given erroneous judgments.
- The
Court reiterates that, while Article 6 of the Convention guarantees
the right to a fair hearing, it does not lay down any rules on the
admissibility of evidence or the way it should be assessed, which
like the establishment of facts are therefore primarily matters for
regulation by national law and the national courts (see Schenk
v. Switzerland, 12 July 1988, §§ 45-46,
Series A no. 140, and García Ruiz v. Spain
[GC], no. 30544/96, ECHR 1999-I, § 28).
- It
follows that this part of the application is manifestly ill founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
III. 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 just satisfaction for both pecuniary and
non pecuniary damage in the amount of EUR 50,000.
- The
Government submitted that the amount claimed by the applicant was
excessive.
- The
Court is of the view that it has not been duly substantiated that the
applicant sustained pecuniary damage as a result of the violation of
her right of access to court. However, the Court accepts that the
applicant has suffered non-pecuniary damage which is not sufficiently
compensated by the finding of a violation. Making its assessment on
an equitable basis and having regard to the circumstances of the
case, the Court awards the applicant EUR 5,000 under this head.
B. Costs and expenses
- The
applicant, who received legal aid from the Council of Europe in
connection with the presentation of her case, also claimed a total of
EUR 3,842 to be paid to her lawyer who had prepared observations
on the admissibility and merits of the case. She failed to produce
documents or invoices to confirm that the amount claimed had been
paid to the representative.
- The
Government indicated that the applicant had not shown that the
expenses claimed for legal representation had actually been incurred.
- The
Court may make an award in respect of costs and expenses in so far as
they were actually and necessarily incurred (see Bottazzi v. Italy
[GC], no. 34884/97, § 30, ECHR 1999 V). Given
that the applicant failed to submit evidence to justify costs and
expenses related to the legal representation, it makes no award under
this head over and above the sum of EUR 850 paid by way of grant
of legal aid.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the lack of
judicial review of the decisions given by the Foundation admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Polish zlotys at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 18 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
