AS TO THE ADMISSIBILITY OF
by Zygmunt SOKOŁOWSKI
The European Court of Human Rights (Fourth Section), sitting on 7 July 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 19 October 2004,
Having deliberated, decides as follows:
The applicant, Mr Zygmunt Sokołowski, is a Polish national who was born in 1929 and lives in Poznan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant’s parents owned a large metallurgical factory in Nowy Tomyśl. Following the outbreak of the Second World War, in the autumn of 1939 the property was taken over by the German occupying administration. The applicant’s entire family were evicted from their home, which was in the same town, put in a transit camp for a period and in December 1939 re settled to the Generalgouvernement, the eastern part of Poland under a special regime of German occupying administration. During the war the factory operated under a trustee appointed by the German administration (“Treuhaender”). When the applicant’s family returned in 1945, they found only the bare walls. All equipment had been stolen.
After the war, in 1945, the Polish authorities instructed the applicant’s father to make a list of the damage that had been done to his property by the German occupying forces. He submitted the list to the local authorities in 1946. He estimated the amount of damage at 298,290 zlotys (PLZ).
Until 1953 Germany paid war reparations to Poland on the basis of international agreements. The applicant’s parents did not, however, receive any compensation. In 1953 Poland had renounced its right to obtain further reparations from the then German Democratic Republic (see below, Relevant domestic and international law).
In May 1999 the applicant requested the State Treasury, represented by the Wielkopolski Governor, to pay him compensation for damage caused in the part of the property owned by his mother as a result of the acts of the occupying German administration. On 11 February 2001 the Minister of Internal Affairs refused. The applicant appealed to the Supreme Administrative Court.
By a judgment of 29 March 2001 that court dismissed the applicant’s appeal. It noted that it was not in dispute that the applicant’s mother’s property had been damaged by the German occupying administration, but considered that it had to examine whether the applicant’s claim was of such a character as to be determined by way of an administrative decision. It observed that it was true that Poland had obtained war reparations from Germany on the basis of international agreements and that these were intended to cover both damage sustained by the State and various forms of damage suffered by individuals. However, it held that neither the domestic nor international law provided for a substantive individual compensation claim on the part of former owners or their successors in title which could be determined by way of an administrative decision.
In September 2001 the applicant submitted a compensation claim against the Ministry of State Treasury to the Warsaw–Śródmieście District Court concerning the part of the property owned by his father.
By a judgment of 27 January 2003 the District Court dismissed that claim. In so far as the applicant had argued that his claim was based on liability in tort under Article 415 of the Civil Code, the court considered that the damage which his predecessor in title had sustained had originated from the acts of the German occupying administration. Hence, no civil obligations based on the law of tort could have arisen between the applicant and the State Treasury. Moreover, while it was true that the State had participated after the Second World War in international agreements concerning the war reparations to be paid to Poland, and that Germany had paid them in part, no international legal agreements had ever been concluded which would have imposed on the State an obligation to transfer to individuals the funds which it had received in war reparations from Germany.
Likewise, no such obligation had been imposed on the State by the domestic law. It was true that in 1944 the Polish authorities had created a Ministry of War Reparations (Resort Odszkodowań Wojennych), but its competence had been limited to establishing the war damage caused in Poland by the German occupying administration and making relevant estimates with a view to obtaining reparations. Similarly, the Reconstruction Plan Act 1947 (Ustawa o Planie Odbudowy Gospodarczej) did not impose on relevant institutions an obligation to issue ordinances regulating compensation due to individuals. Consequently, the domestic law did not contain any regulation under which the applicant could claim compensation from the Polish State in respect of damage caused to individuals by the German occupying authorities during the war.
The applicant appealed. He disagreed with the assertion that his claim had been based on legal provisions governing civil liability for tortious acts. He submitted that the first-instance court had breached the provisions of the Civil Code in so far as Article 417 thereof specifically established that the State had a civil liability for the acts of its agents. He further referred to Article 77 of the Constitution, which stated that everyone had the right to compensation for damage caused by the unlawful acts or omissions of public authorities. He submitted that, in his case, the State had failed in its obligation to issue legal regulations, in the form of an ordinance, entitling individuals to make substantive compensation claims in respect of war damage they had suffered. The obligation, in his view, originated from the Reconstruction Plan Act. He also referred to Article 1 of Protocol No. 1 to the Convention.
The applicant further argued that the State had obtained reparations from Germany which, contrary to the opinion expressed in the proceedings by the State-Treasury representatives, were intended to cover both the State and individual damage. He referred to the judgment of the Supreme Administrative Court of 29 March 2001. In his submission, therefore, the State should have been obliged to pay him compensation from the funds it had received for that purpose. Under the rule of law a citizen could not legitimately be required to bear the adverse effects of the State’s failure to legislate. The Reconstruction Plan Act had entrusted responsibility for its execution to the Minister. The ordinary meaning of the phrase “entrusts the execution” had to be seen as imposing on the Minister an obligation to issue relevant ordinances which would make it possible for individuals to obtain compensation funded by war reparations.
By a judgment of 13 May 2003 the Warsaw Regional Court dismissed the applicant’s appeal. It observed, firstly, that the first-instance court had failed to examine whether the Reconstruction Plan Act 1947 was still in force. It held that that Law had been enacted with the specific purpose of re organising the economy through planning techniques. It had therefore lapsed at the end of 1948 following the implementation of the plan it had created and could not, therefore, serve as a source of any individual rights and obligations. Moreover, section 100 of the Act on which the applicant had relied, could not be regarded as authorisation for issuing the ordinance, as such statutory authorisation had to comply with precise conditions that were set out in Article 92 of the Constitution. Hence, the fact that no ordinance had been issued on the basis of that section could not be construed as a failure to act giving rise to the State’s liability in tort under Article 417 of the Civil Code.
In any event, the transitional provisions of that Code, which had entered into force on 1 January 1965, had clearly provided that the legal consequences of civil obligations arising out of events that had occurred prior to that date had to be assessed in the light of the statutory provisions in force at the time the events took place. Hence, the civil liability of the State could not be examined in the light of Article 417 of the Civil Code, but only in the light of the Code of Obligations, which had been enacted in 1933. However, the Code of Obligations did not specifically regulate the State’s liability in tort. Civil liability in tort was governed only by general provisions and could arise only when it could be shown that the tortfeasor had acted unlawfully or had failed to act when required to do so. In the absence of any obligation on the State to legislate on individual compensation claims, it could not be said that the State had acted unlawfully and should have been held liable.
The reparations which Poland had obtained from Germany constituted a debt of the latter towards the Polish State. No individual right vis-à-vis the State Treasury had been generated by the payment of reparations to the Polish Government.
The Regional Court further accepted the reasoning of the lower court concerning the legal character of the provisions of the Reconstruction Plan Act. It reiterated that no individual right to compensation could be derived from it.
The applicant lodged a cassation appeal with the Supreme Court, essentially reiterating his earlier arguments.
By a judgment of 15 October 2003 the Supreme Court dismissed his cassation appeal.
It observed that the applicant had asserted that his claim was based essentially on the State’s failure to enact ordinances providing for a detailed compensation mechanism for damage caused by the German occupying administration. However, no liability in tort could have arisen on the part of the State, as it had been under no obligation to introduce such legislation. Neither Article 417 of the Civil Code nor the provisions of the Code of Obligations of 1933 provided that mere inaction - provided it was not unlawful – could give rise to the State’s liability in tort. Section 100 of the Reconstruction Plan Act, contrary to the applicant’s assertion, did not impose any such obligation on the State.
Nor could the court accept that the applicant’s claim could be based directly on the Constitution. For the State’s liability to arise towards an individual a statutory legal basis was necessary. Moreover, under the case-law of the Constitutional Court, Article 417 governing State liability could be applied only to events that occurred after the Constitution entered into force in 1997. In conclusion, the findings of the lower courts that the State’s conduct could not be qualified as unlawful were correct and had to be upheld.
B. Relevant domestic and international law
1. The Potsdam Agreement of 2 August 1945
The Potsdam Agreement – an agreement on policy for the occupying and reconstruction of Germany after the Second World War and the German surrender of 8 May 1945 – was adopted by the three Heads of Government of the United States of America, the United Kingdom and the Union of Soviet Socialist Republics (“the Three Powers”) and set out, inter alia, the principles governing the payment of war reparations by Germany (Chapter III, “Reparations from Germany”).
2. War reparations for Poland
The issue of war reparations for Poland, which in accordance with the Potsdam Agreement were to be settled by the USSR from its share, was resolved by a bilateral treaty between the USSR and Poland: the Agreement of 16 August 1945 between the Polish Provisional Government of National Unity and the Government of the USSR on compensation for financial losses sustained during the German occupying administration (umowa między Tymczasowym Rządem Jedności Narodowej RP a Rządem ZSRR o wynagrodzeniu szkód finansowych wyrządzonych przez okupację niemiecką).
In 1953 Poland expressly renounced further reparations in an agreement with the Democratic Republic of Germany (East Germany) and again in the Warsaw Treaty of 1970 with the Federal Republic of Germany (West Germany).
3. The Reconstruction Plan Act 1947
The Reconstruction Plan Act was adopted on 2 July 1947. Its Section 1 read:
“A National Economy Plan 1947 – 1949 (Reconstruction Plan) is hereby established.”
Section 3 provided as follows:
“The raising of living standards of the working class above their pre-war levels shall be the essential task of the national economy from 1947 until 1949.”
Section 4 read, inter alia:
“The task referred to above shall be carried out through ... b) war reparations.”
Section 6 read:
“Damage caused by the war shall be repaired in a manner corresponding to plans regarding reconstruction of the national economy; with due regard being had to the creation of basis for its necessary restructuring and growth during the next national planning periods and to preventing further deterioration of national property.”
Section 100 provided:
“The Council of Ministers and the ministers shall be responsible for implementing the provisions of this Act.”
4. Civil liability for tort
Articles 415 et seq. of the Polish Civil Code, which entered into force in 1964, provide for liability in tort. Under this provision, anyone who through his or her fault causes damage to another is required to repair it.
5. State liability for tort
(a) Provisions of the Civil Code applicable from 10 October 1994 to 1 September 2004
Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:
“1. The State Treasury shall be liable for any damage caused by a State official in the performance of his or her duties.”
(b) Provisions of the Civil Code applicable from 1 September 2004
On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (“the 2004 Amendment”) entered into force. The relevant amendments were in essence aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and provision for the State’s tortious liability for failure to enact legislation, a concept known as “legislative omission” (zaniechanie legislacyjne).
Article 4171, in so far as relevant, reads as follows:
“4. If damage has been caused by failure to enact a law [akt normatywny] where there is a statutory duty to do so, the incompatibility of the failure to enact that law shall be established by the court dealing with the claim for damages.”
Under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 applies to all events and legal situations that subsisted before that date.
(c) Constitutional tort
Article 77 § 1 of the 1997 Polish Constitution which entered into force on 17 October 1997, states, in so far as relevant, as follows:
“Everyone shall have the right to compensation for any harm done to him or her by any act of a public authority in breach of the law.”
The applicant complained under Article 1 of Protocol No. 1 to the Convention that he had been deprived of the compensation to which he was entitled under international law in so far as it guaranteed that war reparations would be paid to Poland by Germany. Germany had paid reparations, but nothing had been paid to individual owners of property which had been destroyed by the German occupying administration. The Polish laws, in particular the Reconstruction Plan Act 1947, imposed an obligation on the State to issue ordinances regulating the question of individual entitlement to compensation. The State had failed to comply with that obligation and had consequently obtained unjust enrichment while failing to secure the applicant’s right to the peaceful enjoyment of his possessions.
The applicant further complained under Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1, that he had been discriminated against when compared to the former owners whose situation had been examined by the Court in the Broniowski v. Poland case ([GC], no. 31443/96, ECHR 2004 V). In his submission, although the State had established a legal framework entitling such former owners to compensation, it had failed to do so in respect of persons who, like him, had lost their property as a result of acts of the German occupying administration.
The applicant complained under Article 1 of Protocol No. 1 to the Convention that the Polish authorities had failed to pay him any compensation for damage that had been caused to the property of his predecessors in title by the German occupying authorities.
Article 1 of Protocol No. 1 provision reads:
“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.”
The Court reiterates that Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, inter alia, to control the use of property in accordance with the general interest.
The three rules are not, however, distinct in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (Hutten-Czapska v. Poland [GC], no. 35014/97, § 157, 19 June 2006; see also Scordino v. Italy (no. 1) [GC], no. 36813/97, § 78, ECHR 2006 ...; Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 78, ECHR 2005 ...; and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi (Bosphorus Airways) v. Ireland [GC], no. 45036/98, § 141, ECHR 2005 ...).
According to the Court’s settled case-law, applicants may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to their “possessions” within the meaning of that provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicants can argue that they have at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see, among other authorities, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII; Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII; Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX; Von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 74 (c), ECHR 2005-V; and, more recently, Bata v. the Czech Republic (dec.), no. 43775/05, 24 June 2008).
It is clear that the instant case does not concern the applicant’s “existing possessions” as the property belonging to his parents was taken and partly destroyed by the German occupying authorities during the Second World War. The only issue to be determined by the Court is whether under Polish domestic law the applicant can be said to have had a “legitimate expectation” of obtaining compensation from the Polish State in respect of property which his predecessors in title lost in 1940 (see, Ernewein and Others v. Germany (dec.), no. 14849/08, 12 May 2009).
The Court has previously accepted that legislation in force after the ratification of the Convention and Protocol No. 1 and providing for full or partial restoration of property lost before the Protocol’s entry into force, or compensation in lieu thereof, may be regarded as giving rise to a new property right protected by Article 1 of Protocol No. 1 or a legitimate expectation of obtaining the effective enjoyment of a property right (see, Von Maltzan and Others, cited above, § 74 (d) in fine, citing Broniowski v. Poland [GC], 31443/96, § 125, ECHR 2004-V; Slavov and Others v. Bulgaria (dec.), no. 20612/02, 2 December 2008). The issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1. The Court must therefore examine whether the applicant could be considered to have a claim amounting to a legitimate expectation of obtaining the effective enjoyment of a property right.
The Court has acknowledged that there is a difference between a hope of compensation, however understandable that hope might be, and a legitimate expectation, which must be of a nature more concrete than a mere hope and be based on a legal provision or a judicial decision, or, at the very least, have a solid basis in law (see, mutatis mutandis, Gratzinger and Gratzingerova, cited above, § 73, ECHR 2002-VII, and von Maltzan and Others, cited above, § 112; Poznanski and Others v. Germany (dec.), no. 25101/05; Associazione Nazionale Reduci dalla Prigonia dall’internamento e dalla Guerra di liberazione and Others v. Germany (dec.), no. 45563/04).
In the present case the applicant first lodged an appeal with the Supreme Administrative Court against the decision of the Minister of Internal Affairs refusing to pay him compensation in the absence of any legal basis for such a payment. In its judgment of 29 March 2001 that court confirmed that Poland had obtained war reparations from Germany on the basis of international agreements. However, it held that neither domestic nor international law provided for a substantive individual compensation claim on the part of the former owners or their successors in title.
Subsequently, the applicant sought compensation in civil proceedings. In its judgment of 27 January 2003 the Warsaw-Śródmieście District Court stated that the damage had originated from the acts of the German occupying administration so that no civil obligation in tort could have arisen between the applicant and the Polish Treasury. The District Court further noted that no international legal agreements had ever been concluded which required the Polish State to transfer to individuals funds received in war reparations from Germany. Likewise, no such obligation had been imposed on the State by the domestic law.
The conclusions of the first-instance court were subsequently shared by the Warsaw Regional Court. In particular, in its judgment of 13 May 2001 it held that the Reconstruction Plan Act 1947 could not serve as a source of any individual rights. It further held that it had not imposed on the State an obligation to regulate the issue of compensation by way of ministerial ordinances. Hence, the fact that no such ordinance had been issued could not be construed as a failure to act giving rise to the State’s tortious liability. It also examined the case in the light of the provisions on liability in tort which had been enacted in 1933 and held that no State liability towards the applicant could have arisen under those provisions either.
The Supreme Court upheld the reasoning of the lower courts. It also observed that the State had no liability under the provisions of the Constitution either.
In the light of the conclusions reached by the domestic courts, the Court observes that the applicant’s claim for compensation was not based on any statutory provisions or a judicial decision. The aim of the Reconstruction Plan Act 1947 was to provide a solution to a particular situation originating in the damage which the war had caused to the national economy. The legal force of that Act lapsed once that aim had been implemented. Therefore, the Court accepts the conclusions of the domestic courts that it could not be interpreted as establishing claims or entitlements of a continuing character. Furthermore, the domestic court’s interpretation of the law does not appear to have been arbitrary or manifestly unreasonable. In view of the Court’s limited jurisdiction to interpret domestic law, it cannot substitute its view for that expressed by the Polish courts, including the Supreme Court and the Supreme Administrative Court.
As regards the applicant’s reliance on international law, the Court notes that he has not referred to any concrete provisions of international law. In these circumstances, the Court is unable to identify any legal basis for the applicant’s claim. It further reiterates, in the light of Article 1 of the Convention, that it does not have jurisdiction to decide claims allegedly arising from international law (see Bata v. the Czech Republic, cited above).
In so far as the applicant relies on the case of Broniowski v. Poland, cited above, the Court points out that in that case the Court examined in detail the scope and content of the applicant’s rights originating in the provisions of various statutes and ordinances as interpreted by the domestic courts. It was satisfied that the applicant in that case had a proprietary interest recognised under Polish law which was eligible for protection under Article 1 of Protocol No. 1 (Broniowski v Poland (dec.) [GC], referred to above, § 101). The present case differs in that no such substantive interest is discernible in either domestic or international law.
It follows that the complaint under Article 1 of Protocol No. 1 to the Convention is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
In respect of his complaint that he has been discriminated against in the exercise of his rights under Article 1 of Protocol No. 1 to the Convention, the applicant relied on Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Having regard to the fact that Article 14 of the Convention is not autonomous and to the conclusion that Article 1 of Protocol No. 1 is not applicable, the Court considers that Article 14 cannot apply in the instant case (see Gratzinger and Gratzingerova, cited above § 76; Polacek and Polackova v the Czech Republic (dec.), no. 38645/97, § 69, 10 July 2002; Jantner, cited above §§ 40 and 41; and Von Maltzan and Others, cited above, §§ 116 and 117).
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza