(Application no. 22279/04)
7 July 2009
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 Plechanow v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 16 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. Background to the case
2. Proceedings in which the applicants sought to have the expropriation decision declared null and void
3. Proceedings for compensation under Article 160 of the Code of Administrative Procedure
- the case raised a significant legal issue (i.e. the question to what extent and in respect of which competences the obligations of the national councils had been taken over by communities), and
- the need for an authoritative interpretation of provisions which had been interpreted differently in the courts' case-law (in particular section 36 § 3 of the 1990 Local Government (Introductory Provisions)), and
- the need to clarify the inconsistency of the Court of Appeal's judgment with the case-law invoked by the applicants and the alleged guidance provided by the decision of the Local Government Board of Appeal of 30 November 1999.
According to Article 393 of the Code of Civil Procedure, when the challenged judicial decision does not manifestly breach the law or the proceedings are not invalid in law (§ 2), the Supreme Court may refuse to entertain a cassation appeal if there is no appearance of a significant legal issue in the case, there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts' case-law or the cassation appeal is manifestly ill-founded (§ 1).
In the present case none of the circumstances set out in Article 393 § 2 was present and consequently the Supreme Court, having considered the grounds set out in § 1, found it justified to refuse to entertain the cassation appeal.
4. Proceedings under Article 7 of the 1945 Decree
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Relevant provisions concerning a cassation appeal
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
“§ 1. A cassation appeal should include:
1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only;
2) an indication of the grounds for the cassation appeal;
3) arguments showing that its examination would be justified;
4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.”
“§ 1. The Supreme Court may refuse to entertain the cassation appeal, if:
1) there is no appearance of any significant legal issue in the case,
2) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts' case-law,
3) the appeal is manifestly ill-founded.
§ 2. Paragraph 1 shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law.”
2. The judgment of the Constitutional Court
3. The individual constitutional complaint
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ...
4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”
“1. The Court shall, at a sitting in camera, discontinue the proceedings:
1) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible;
2) in consequence of the withdrawal of the application, question of law or constitutional complaint;
3) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the Tribunal.
2. If these circumstances come to light at the hearing, the Tribunal shall take a decision to discontinue the proceedings.
3. Item 1 (3) of the present Article does not apply if giving a decision on the compatibility with the Constitution of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights.”
5. The 1945 Decree on real property in Warsaw and the Local Government Act of 10 May 1990
“The State Treasury takes over:
3) obligations and receivables of local bodies of state administration (...) resulting from final and binding court rulings and administrative decisions delivered before 27 May 1990 (...).”
“A person who has suffered a loss on account of the issuing of a decision in a manner contrary to Article 156 § 1 or on account of the annulment of such a decision shall have a claim for compensation for actual damage, unless he has been responsible for the circumstances mentioned in this provision.”
7. Resolution and judgments of the Supreme Administrative Court and the Supreme Court concerning the legal capacity to be sued
8. Examples of subsequent jurisprudence of the domestic courts
a. Judgment of the Supreme Court of 25 January 2007, ref no. V CSK 425/06
The Supreme Court quashed the appellate judgment and remitted the case, relying on the above-mentioned resolution of 7 December 2006.
b. Judgment of the Supreme Court of 14 March 2007, ref no. I CSK 247/06
The plaintiffs lodged a civil action for compensation against the State Treasury. The Warsaw Regional Court allowed their claim in part and awarded compensation from the State Treasury.
On 31 January 2006 the Warsaw Court of Appeal amended the first-instance judgment and dismissed the claim against the State Treasury finding that it lacked legal capacity to be sued in the case.
On 14 March 2007 the Supreme Court quashed the appellate judgment and remitted the case, invoking the resolution of 7 December 2006.
9. Resolution and judgment of the Supreme Court concerning the character of the compensation claim
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION AND ARTICLES 6 AND 13 OF THE CONVENTION
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. Compatibility ratione temporis
Therefore, in so far as the applicants' complaints are directed against the acts and omissions of the State in relation to the enforcement of the compensation claim to which they were entitled under Polish law – an entitlement which continued to exist after 10 October 1994 having regard to the above-mentioned 1999 ruling – the Court has temporal jurisdiction to entertain that complaint (cf. Broniowski v. Poland (dec.) [GC], no. 31443/96, §§ 75-76, ECHR 2002-X; Vajagić v. Croatia, no. 30431/03, § 24, 20 July 2006).
2. Compatibility ratione materiae – existence of possessions within the meaning of Article 1 of Protocol No. 1
Where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it (Kopecký v. Slovakia [GC], no. 44912/98, §§ 52, ECHR 2004 IX; Draon v. France [GC], no. 1513/03, § 68, 6 October 2005; Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, 11 January 2007).
Where that has been established, the concept of “legitimate expectation” can come into play, which must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a final judicial decision (see Draon, cited above, § 65, and Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 73, ECHR 2002-VII).
Therefore, in the Court's view, the applicants could be considered to have a “legitimate expectation” that their claim would be dealt with in accordance with the applicable laws and, consequently, upheld (see Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332, § 31; S.A. Dangeville v. France, no. 36677/97, § 46 48, ECHR 2002 III).
3. Compatibility ratione personae
4. Compliance with the six month rule
5. Exhaustion of domestic remedies
1. Article 1 of Protocol No. 1
a. The parties' submissions
They alleged that the domestic courts unfairly dismissed their claim on the grounds that they had not sued the right legal entity, without giving proper consideration to the case-law invoked by them.
The applicants further submitted that the Supreme Court had refused to entertain their cassation appeal although the applicants had indicated that all statutory requirements justifying the examination of the cassation appeal on the merits had been met, in particular there was a need for interpretation of a significant legal issue causing discrepancies in the courts' case-law.
The Government further submitted that neither the Convention nor the Polish Constitution guaranteed a right to have a civil case examined by three judicial instances. Nevertheless, the Government were of the view that the Supreme Court's so called “pre-judgment” practice pursued the legitimate aim of expediting the examination of non-meritorious appeals. They also argued that the applicants had not sufficiently proved the alleged discrepancies in the case-law.
Lastly, they stated that it was not for the Government or the Court to assess whether the cassation appeal had been meritorious or whether the Supreme Court's decision had been sufficiently reasoned.
b. The Court's assessment
i. Existence of possessions within the meaning of Article 1 of Protocol No. 1
ii. Compliance with Article 1 of Protocol No. 1
100. Such positive obligations may entail the taking of measures necessary to protect the right to property, particularly where there is a direct link between the measures an applicant may legitimately expect from the authorities and his effective enjoyment of his possessions, even in cases involving litigation between private entities. This means, in particular, that States are under an obligation to provide a judicial mechanism for settling effectively property disputes and to ensure compliance of those mechanisms with the procedural and material safeguards enshrined in the Convention. This principle applies with all the more force when it is the State itself which is in dispute with an individual.
Accordingly, serious deficiencies in the handling of such disputes may raise an issue under Article 1 of Protocol No. 1.
In that context, it should be stressed that uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is an important factor to be taken into account in assessing the State's conduct (see Broniowski, cited above, § 151).
2. Articles 6 and 13 of Convention
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
2. Holds that there has been a violation of Article 1 of Protocol No 1 to the Convention and dismisses the above-mentioned objection;
(a) reserves the said question;
(b) invites the Government and the applicants to submit, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.
Done in English, and notified in writing on 7 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza