(Application no. 38016/07)
3 November 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 Sierpiński 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 13 October 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 applicant sought to have the expropriation decision declared null and void
3. Proceedings in which the applicant sought to have the judgment of the Court of Appeal declared to be contrary to law
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Relevant provisions concerning a cassation complaint
“The cassation complaint may be based on the following grounds:
1) a breach of substantive law caused by 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 complaint 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 complaint;
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 shall entertain the cassation complaint if:
1) there is a significant legal issue in the case,
2) there is a need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law,
3) the proceedings are invalid at law,
4) the complaint is manifestly well-founded.
2. The Supreme Court shall decide to accept or refuse to entertain the cassation complaint during a sitting in camera; the decision shall not require written reasons.
2. The complaint to declare a final and binding ruling to be contrary to law
3. The judgment of the Constitutional Court
4. 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.”
6. The 1945 Decree on real property in Warsaw and the Local Self 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 (...).”
7. Temporary ownership and perpetual use
“A person who has suffered 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 loss, unless he has been responsible for the circumstances mentioned in this provision.”
9. Resolutions of the Supreme Court concerning the capacity to be sued for damages caused by an administrative decision
10. 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 his 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.
11. 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 WITH REGARD TO THE PROCEEDINGS FOR COMPENSATION
“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. Article 1 of Protocol No. 1
a. The parties’ submissions
He alleged that the Court of Appeal unfairly dismissed his claim on the grounds that he had not sued the right legal entity, without giving proper consideration to the case-law invoked by him and despite a favourable judgment of the first-instance court.
The applicant further submitted that the Supreme Court had refused to entertain his cassation complaint although the applicant had indicated that all statutory requirements justifying the examination of the cassation complaint on the merits had been met, in particular that there was a need for interpretation of a significant legal issue causing discrepancies in the courts’ case-law.
b. The Court’s assessment
i. 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).
Furthermore, in its judgment of 10 November 2004 the Regional Court confirmed the applicant’s entitlement and awarded him PLN 604,000. The court found that as a consequence of the unlawful 1967 decision the applicant had lost his property right and thus had suffered loss amounting to the value of that right.
Therefore, in the Court’s view, the applicant could be considered to have a “legitimate expectation” that his claim would be dealt with in accordance with the applicable laws and, consequently, upheld (see Plechanow v. Poland, no. 22279/04, § 84-85, 7 July 2009 with references to Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332, § 31 and S.A. Dangeville v. France, no. 36677/97, § 46-48, ECHR 2002 III).
ii. Compliance with Article 1 of Protocol No. 1
69. 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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION WITH REGARD TO THE ACTION TO HAVE A FINAL JUDGMENT DECLARED CONTRARY TO LAW
1. Applicability of Article 6
Finally, the right must be civil in character (see, for example, Allan Jacobsson v. Sweden (no. 2), 19 February 1998, § 38, Reports 1998-I). In this context, Article 6 § 1 of the Convention is applicable where an action is “pecuniary” in nature and is founded on an alleged infringement of rights which are likewise pecuniary rights, notwithstanding the origin of the dispute (see, for example, Beaumartin v. France, judgment of 24 November 1994, Series A no. 296-B, p. 60-61, § 28).
Consequently, the pecuniary and thus “civil” character of the dispute cannot be denied.
Had the Supreme Court accepted his argument, it could have admitted his complaint and declared the 2005 judgment of the Court of Appeal contrary to law, thus creating for the applicant a legally enforceable claim to obtain compensation for damage suffered in consequence of the judgment. Although the Supreme Court eventually held that the applicant had no locus standi, in effect it determined a civil dispute (cf. Serghides and Christoforou v. Cyprus, (dec.) no. 44730/98, 22 May 2001).
97. The applicant contested the conclusion. He disagreed with the presumption that the Supreme Court’s refusal to entertain a cassation complaint is equivalent to its finding that the impugned judgment was issued in accordance with law. He argued that had the Supreme Court admitted his cassation complaint, he would not have to seek another possibility to challenge the erroneous judgment of the Court of Appeal. By rejecting his complaint under Article 4241 the Supreme Court deprived him of all remedies capable of redressing the alleged violation of his property rights.
However, the limitations applied cannot restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see, inter alia, Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 44, ECHR 2001-VIII). Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, inter alia, Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 44, 12 July 2001, to be published in ECHR 2001-VII).
It is for the Contracting States to decide how they should comply with the obligations arising under the Convention. The Court must satisfy itself that the method chosen by the domestic authorities in a particular case is compatible with the Convention.
Having regard to the abovementioned aim of the relevant legislation, it does not seem per se unreasonable or arbitrary to reject a case which had already been examined by the Supreme Court and which (in that court’s view) had not disclosed any indication of being contrary to law. Otherwise, the Supreme Court would have to call into question its own decision, which would be against the principle of legal certainty.
III. 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
(a) reserves the said question;
(b) invites the Government and the applicant 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 3 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
1 “Dokonując wykładni art. 4241 § 3 k.p.c., w piśmiennictwie wyrażono trafny pogląd, że przez skargę kasacyjna „wniesioną” należy rozumieć skargę „wniesioną skutecznie”, tj. taką, która nie została odrzucona, a Sąd Najwyższy poddał ja co najmniej tzw. przedsądowi (art. 3989) albo rozpoznał po przyjęciu do rozpoznania. (…) Od wyroku Sądu Apelacyjnego zaskarżonego przez powoda rozpoznawaną skargą wniósł on wcześniej skutecznie skargę kasacyjną, której przyjęcia do rozpoznania odmówił jednak Sąd Najwyższy. Zgodnie zatem z powołanym art. 4241 § 3 k.p.c., skarga o stwierdzenie niezgodności z prawem tego wyroku nie jest dopuszczalna.”