European Court of Human Rights

FOURTH SECTION

DECISION

PILOT-JUDGMENT PROCEDURE

Application no. 28558/95
by Z.H.
against Poland

The European Court of Human Rights (Fourth Section), sitting on 23 September 2008 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 24 April 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the decision to apply the pilot-judgment procedure and to adjourn its consideration of applications deriving from the same systemic problem identified in the case of Broniowski v. Poland (no. 31443/96),

Having regard to the decisions to strike the applications Wolkenberg and Others v. Poland (no. 50003/99) and Witkowska-Toboła v. Poland (no. 11208/02) out of the Court's list of cases,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Z.H., was a Polish national who was born in 1916 and lived in Kołobrzeg.

On 14 December 2006 the applicant's niece, Ms Elżbieta Kuś, informed the Court's Registry that the applicant had died on 9 July 2005 and that, according to his will, she was his only heir. She stated that she wished to continue the proceedings before the Court in her late uncle's stead.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

A.  The circumstances of the case

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

1.  Background

Before the Second World War the applicant owned real property in the eastern provinces of pre-war Poland, the so-called “Borderlands” (Kresy). Those regions included large areas of present-day Belarus and Ukraine and territories around Vilnius in what is now Lithuania. In September 1939 the regions were invaded by the USSR.

Following the end of the war, when the Polish eastern border was redrawn westwards and fixed along the Bug River, the Borderlands acquired the name of the “territories beyond the Bug River” (ziemie zabużańskie).

On an unspecified date following 9 September 1944 the applicant, like some 1,240,000 other Polish citizens who were at various dates from 1944 to 1953 subject to repatriation from the territories beyond the Bug River, was repatriated to Poland under the provisions of the so-called “Republican Agreements” (umowy republikańskie).

A more detailed account of the historical background and the relevant provisions of the Republican Agreements and other related treaties and laws can be found in the Court's judgment in the pilot case of Broniowski v. Poland (see, in particular, Broniowski v. Poland [GC], no. 31443/96, ECHR 2004-V, §§ 10-12 and 39-45).

2.  The applicant's attempts to recover compensation

On 26 August 1947 the State Repatriation Office in Poznań issued a certificate attesting that the applicant had owned real property in the territories beyond the Bug River.

On 10 December 1984 the applicant acquired compensatory property from the State, the value of which was estimated at 750,120 old Polish zlotys (PLZ). The value of the original property amounted to PLZ 2,366,215 at that time.

The applicant's subsequent attempts to recover the remainder of the compensation from the State were unsuccessful. The only possibility of enforcing the claim was to participate in competitive bids for the sale of State property. However, the State authorities throughout Poland officially acknowledged the acute shortage of State-owned land designated for the realisation of the Bug River claims.

This fact and the fact that at the material time it was the authorities' common practice to desist from organising auctions for Bug River claimants or to openly deny them the opportunity to enforce their entitlement through the statutory bidding procedure was established by the Court in the Broniowski judgment (see Broniowski, cited above, §§ 48-61, 69-87 and 168-176).

In a letter of 14 December 2006 the late applicant's niece informed the Court that she intended to initiate proceedings under the Law on the realisation of the right to compensation for property left beyond the present borders of the Polish State (Ustawa o realizacji prawa do rekompensaty z tytułu pozostawienia nieruchomości poza obecnymi granicami państwa polskiego) (“the July 2005 Act”) in order to recover the remainder of the compensation for the Bug River property.

B.  Relevant domestic law and practice

A detailed description of the relevant domestic law and practice concerning the Bug River property is set out in the judgments delivered by the Court in the pilot case of Broniowski v. Poland (see Broniowski v. Poland (merits), cited above §§ 39-120; and Broniowski v. Poland (friendly settlement), cited above, §§ 14-30) and the decisions given in the cases of Wolkenberg and Others v. Poland and Witkowska-Toboła v. Poland, cited above, §§ 24-25 and §§ 28-29 respectively.

The operation of the compensation scheme introduced by the July 2005 Act is described in the Court's decisions given in the cases of Wolkenberg and Others v. Poland (dec.) no. 50003/99, 4 December 2007, §§ 18-23 and Witkowska-Toboła v. Poland (dec.) no. 11208/02, 4 December 2007, §§ 22 27.

COMPLAINT

The applicant in essence complained about the State's continued failure to secure the full implementation of his right to compensation for the Bug River property. He alleged a violation of Article 1 of Protocol No. 1 to the Convention.

THE LAW

A.  The standing of the late applicant's niece

The applicant, Mr Z.H., died after he had lodged his application with the Convention institutions. His niece and only heir confirmed to the Court that she wished to continue the Convention proceedings in his stead. The Court, having regard to its established case-law on the matter, concludes that she has standing to pursue the application in his stead.

B.  Application of the pilot-judgment procedure

The present case, like some 190 similar cases currently on the Court's docket, had been examined in accordance with the pilot-judgment procedure following the judgment given by the Court in the Broniowski case (see Broniowski (merits), cited above §§ 189 et seq.). The applicant's complaint originated in the same structural shortcoming found to have been at the root of the Court's finding of a violation of Article 1 of Protocol No. 1 in the pilot case and defined as “a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the failure to set up an effective mechanism to implement the “right to credit” of Bug River claimants” which “ha[d] affected and remain[ed] capable of affecting a large number of persons” (ibid., see also the third operative provision of the judgment).

In that connection, and having regard to the number of persons potentially affected by the systemic violation of the Convention, the Court directed that “the respondent State must, through appropriate legal measures and administrative practice, secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu, in accordance with the principles of protection of property rights under Article 1 of Protocol No. 1” (ibid. § 194 and the fourth operative provision of the judgment).

C.  Application of Article 37 of the Convention

Article 37 of the Convention reads, in so far as relevant, as follows:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

...

(b)  the matter has been resolved; ...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2.  The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

1.  The parties' submissions

(a)  The Government

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

(b)  The applicant

The applicant's niece did not respond to the Government's observations.

2.  The Court's assessment

In the cases of Wolkenberg and Others v. Poland and Witkowska Toboła v. Poland the Court, having regard to the general compatibility of the compensation scheme introduced by the July 2005 Act with the principles of protection of property rights, in particular with the principles relating to compensation and to the effective functioning of that Act in practice, as well as to the availability of domestic remedies enabling Bug River claimants to recover compensation for any past material or non-material prejudice suffered as a result of the previous defective operation of the domestic legislation, was satisfied that the issue giving rise to the Bug River cases had been resolved for the purposes of Article 37 § 1 of the Convention.

The Court held that the procedures under the July 2005 Act had provided the applicants and other Bug River claimants with relief at domestic level which made its further examination of their applications and of other similar applications no longer justified. In consequence and finding no special circumstances regarding respect for human rights that would require the continued examination of the cases by virtue of Article 37 § 1 in fine, the Court decided to strike the applications out of its list of cases (see Wolkenberg and Others v. Poland, cited above, §§ 60-77; and Witkowska Toboła v. Poland, cited above, §§ 62-79).

Having regard to the circumstances of the present case and to the fact that the applicant partly satisfied his claim before the entry into force of the July 2005 Act and, if the claim has not been satisfied to the full extent defined by that Act, it is still open to his heir to recover the remainder of the compensation, the Court finds no reason justifying its departure from the conclusion reached in the above-mentioned cases. Accordingly, the application should be struck out of the Court's list of cases.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Lawrence Early Nicolas Bratza
Registrar President