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URL: http://www.bailii.org/eu/cases/ECHR/2009/1759.html
Cite as: [2009] ECHR 1759

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Final Resolution CM/ResDH(2009)89¹

Execution of the judgments of the European Court of Human Rights

Broniowski against Poland

(Application No. 31443/96, judgment of 22 June 2004 – Grand Chamber and

judgment of 28 September 2005 – Friendly settlement, Article 41)

The Committee of Ministers, under the terms of Article 46, paragraph 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the final judgments transmitted by the Court to the Committee;

Recalling that the violation of the Convention found by the Court in this case concerns the absence of an effective mechanism to realise the applicant’s entitlement – reaffirmed and incorporated into Polish law in 1985 and subsequently in 1997 - to receive compensation for property abandoned as a result of boundary changes following the Second World War (violation of Article 1 of Protocol No. 1) (see details in the Appendix);

Recalling that the Court, endorsing the Polish judicial authorities’ assessment, concluded that the facts of the case disclosed the existence, within the Polish legal system, of a systemic defect as a consequence of which a whole class of individuals had been denied the peaceful enjoyment of their possessions, and found that the deficiencies in national law and practice identified in the applicant’s individual case could give rise to numerous subsequent well-founded applications in future;

Recalling also that in the light of this situation, having regard to the Committee of Ministers Resolution of 12 May 2004 on judgments revealing an underlying systemic problem (Res(2004)3) and the Committee’s Recommendation on the improvement of domestic remedies (Rec(2004)6) of the same date, the Court for the first time indicated in the operative part of its judgment of 22 June 2004 the type of general measures that the respondent state should take, under the supervision of the Committee of Ministers and in accordance with the principle of subsidiarity, so as to prevent a large number of similar cases from being brought before the Court;

Having satisfied itself that, within the time-limit set, the respondent state had paid the applicant the just satisfaction provided for in the judgments (see details in the Appendix);

Recalling that on 5 July 2005, the Committee adopted an interim resolution ResDH(2005)58 in this case, in which, inter alia, it recalled that the adoption of the necessary execution measures was particularly pressing in cases where a judgment pointing to systemic or general deficiencies in national law or practice had been delivered, and a large number of new applications to the Court concerning the same problem were pending or likely to be brought before the Court;

Recalling that the Committee underlined that the need to adopt the necessary measures was of particular concern since persons affected by the situation impugned by the Court were unable to obtain redress either through domestic remedies or from the Court itself, as it had decided to adjourn the examination of similar complaints pending the solution of the underlying problem in Poland;

Having welcomed in its interim resolution the execution measures already taken, particularly in that several legislative provisions challenged by the judgment had been declared unconstitutional, and having called upon the Polish authorities to intensify their efforts rapidly to finalise the legislative reform under way, to create the necessary conditions for its effective implementation and to produce a comprehensive plan of action including a time-table on how they planned to ensure this implementation;

Having decided to continue to give priority to the examination of this case until the judgment on the merits was fully executed;

Having noted the positive developments that have occurred following that interim resolution;

Noting in addition that from 4 December 2007 onwards the Court began to strike applications in similar cases out of its list of cases and that on 23 September 2008 it decided to terminate the “pilot judgment procedure”, holding that the level of compensation (20% of the original value of the property) finally established by the new Act of July 2005 on realisation of the right to compensation for property abandoned beyond the present borders of the Republic of Poland (further referred to as “the July 2005 Act”) discharged Poland’s obligations under Article 1 of Protocol No. 1 and that the compensation procedures put in place were operating effectively;

Noting that no further implementing measure is required in this case,

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has fulfilled its functions under Article 46, paragraph 2 of the Convention in the instant case and

DECIDES to conclude its examination.

Appendix to Final Resolution CM/ResDH(2009)89

Information on the measures taken to comply with the judgments in the case of

Broniowski against Poland

Introductory case summary

The case relates to the violation of the applicant’s right to peaceful enjoyment of his possessions (violation of Article 1 of Protocol No. 1), in that he had been unable to assert his entitlement to compensation for property abandoned in the territories beyond the Bug River (the Eastern provinces of pre-war Poland) in the aftermath of the Second World War.

By adopting both the 1985 and the 1997 Land Administration Acts, the Polish state reaffirmed and incorporated into domestic law the obligation to compensate the “Bug River claimants”, it had contracted by virtue of international treaties concluded in 1944 (viz. the agreements concluded between the Polish Committee of National Liberation and the former Soviet Socialist Republics of Ukraine, Belarus and Lithuania). However, the Polish authorities, by imposing successive limitations on the exercise of the applicant’s right to compensation and by resorting to practices which made that right unenforceable in concrete terms, rendered it illusory and destroyed its very essence.

Moreover, the right was extinguished by legislation passed in December 2003 under which claimants in the applicant’s position who had been awarded partial compensation, albeit negligible (2% of the value of the property, in the applicant’s case) lost their entitlement to additional compensation. On the contrary, those who had not yet received compensation were awarded an amount representing 15% of what they were able to claim.

Given the consequences for the applicant of the legislation on property abandoned beyond the Bug River, as applied in practice, the Court concluded that the applicant had been made to bear a disproportionate and excessive burden which could not be justified in terms of the legitimate general community interest pursued by the authorities.

I. Payment of the just satisfaction and individual measures

a) Details of the just satisfaction

Judgment	Pecuniary damage	Non-pecuniary damage	Costs & expenses	Total
Judgment of 22/06/2004	-	-	9591 EUR	9591 EUR
Paid on 09/09/2004
Judgment of 28/09/2005 – friendly settlement	lump sum of 213 000 PLN		24 000 PLN	237 000 PLN
Paid on 12/10/2005

b) Individual measures

The parties concluded a friendly settlement whereby a lump sum of 237,000 PLN (approximately 60,000 EUR) would constitute the final settlement of the case. This sum has been paid. Thus, no additional measures appear necessary.

II. General measures

1. Measures indicated by the Court under the “pilot judgment procedure”

In this case, for the first time, having regard to the resolution of the Committee of Ministers on judgments that reveal an underlying structural problem (Res(2004)3) and its Recommendation on the improvement of domestic remedies (Rec(2004)6), the Court ruled in the operative provisions of the judgment on the general measures required of a respondent state in order to remedy in systemic failing at the root of the violation found. In so doing, the Court decided to indicate to the Polish state the type of measures to adopt, under the supervision of the Committee of Ministers and in accordance with the principle of subsidiarity, in order to prevent a large number of similar cases from being brought before it.

Accordingly, the Court recalled that the violation of Article 1 of Protocol No. 1 originated in a widespread problem affecting a large number of persons (almost 80 000) and which might give rise to numerous subsequent well-founded applications in the future. In the operative provisions of the judgment, the Court pointed out that:

- the violation found resulted from a systemic problem related to the defective operation of domestic law and practice, caused by the failure to set up an effective mechanism to implement the property rights recognised in respect of the Bug River claimants;

- the respondent state must, through appropriate legislative measures and administrative practices, secure the implementation of the property rights in question for the remaining Bug River claimants, or provide them with equivalent redress in lieu, in accordance with the principles of protection of the property rights set out in Article 1 of Protocol No. 1;

The Court further decided to postpone the examination of all similar applications (some 270 applications as of 01/12/2007) pending the outcome of the pilot judgment procedure and the adoption of the required measures at national level.

2. Measures adopted by the Polish authorities

a) Setting up of a new compensation mechanism

Constitutional Court decision of 15 December 2004

On 15 December 2004 the Constitutional Court declared unconstitutional several provisions of the December 2003 Law (on offsetting the value of property abandoned beyond the present borders of the Polish state, in consequence of the war that broke out in 1939, against the purchase price of state property or the fee for the right of perpetual use thereof) which had been challenged in the Grand Chamber’s judgment.

The Constitutional Court’s decision concerned in particular Article 2, paragraph 4 of the Law, according to which claimants in the applicant’s position who had already been awarded partial compensation lost their entitlement to further compensation. The provision limiting the right of claimants to receive compensation above the limit of 50,000 zlotys was also declared contrary to the Constitution (Article 3, paragraph 2).

In accordance with national law, the statutory provisions invalidated by the Constitutional Court’s judgment lost their binding force on the date of the publication of this judgment (27 December 2004), except for Article 3, paragraph 2 which, by virtue of the Constitutional Court’s judgment, remained applicable until 30 April 2005.

Consequently, as from December 2004 claimants in the applicant’s position no longer faced any legal obstacles to securing their entitlement to compensation equal to that prescribed for claimants who had not previously received compensation.

Activities of the Agricultural Property Agency in pursuance of the law of December 2003

Between January and October 2004, the Agency held 30,000 auctions and offered for sale 60,000 hectares of land. During this period, persons entitled to receive property in compensation under the law of December 2003 participated in 60 auctions and concluded 33 purchase contracts with the Agency.

Legislative reform

In early July 2005 the Committee adopted Interim Resolution ResDH(2005) 58, taking stock of the measures adopted at that time and indicating the outstanding questions, particularly with regard to the finalisation of the ongoing legislative reform. Shortly afterwards, Parliament passed the July 2005 Act mentioned above on realisation of the right to compensation for property abandoned beyond the present boarders of the Republic of Poland, which entered into force on 7 October 2005. Pursuant to its Section 13, the compensation for the Bug River property may be secured through two different channels, depending on the claimant’s choice: either, offsetting the indexed value of the original property against the sale price of the state property acquired through an auction procedure, or by receiving a pecuniary benefit, i.e. cash payment secured by the Compensation Fund.

Entitled claimants could lodge requests for compensation until the end of 2008. The legal ceiling for compensation in respect of property abandoned beyond the Bug River was set at 20% of its original value.

Friendly settlement concluded in the framework of the pilot judgment procedure

In the friendly settlement of 28 September 2005 reached between the parties, the Court addressed not only the applicant’s individual situation but also the general measures adopted for the implementation of the principal judgment. According to the friendly settlement, the government undertook to adopt additional general measures, aimed especially at improving the operation of the new compensation mechanism set up by the legislative reform of 2005. It also acknowledged its obligation to make available to the Bug River claimants a form of compensation for any pecuniary or non-pecuniary damage sustained by them on account of the defective operation of the applicable legislative system prior to the introduction of the new compensation mechanism. The Court observed that the measures adopted at that stage by the government demonstrated the authorities’ tangible commitment to taking measures intended to remedy the systemic defects found.

Measures aimed at ensuring the implementation of the new compensation mechanism

Regulations on the management of the special Compensation Fund were adopted in December 2005 by the Treasury Ministry. In April 2006 an agreement was concluded between that ministry and the Bank of National Property on the conditions of payment of compensation. At the beginning of July 2007, the Compensation Fund had 126,650,000 EUR at its disposal. Furthermore, early in 2008 the data processing system for transfer of information on individual claims from the local registers to the central register kept by the Treasury Ministry to the Bank of National Property paying the compensation, became fully operational.

In August 2007 the Treasury Ministry created a special website to disseminate information on the implementation of the July 2005 Act. According to the information published on this site, up to the end of July 2009 the Bank of National Property had made 19,444 compensation payments to Bug River claimants, corresponding to 825,643,018 PLN (approximately 206,500,000 EUR). Overall, more than 19 000 of the claimants were able to benefit from the new compensation scheme, their total number being estimated by the authorities at 100 000.

Further, following the entry into force of the July 2005 Act, the possibilities for compensation through the auctioning of state-owned land were improved. The stock of land set aside for auctioning was considerably increased, enabling claimants to finalise 1 635 auction sales over the period 2004-2006. The total value of the claims met during that period amounted to 1 600 000 EUR.

b) Specific remedies to obtain compensation

The Polish authorities confirmed in the Broniowski friendly settlement judgment the existence of specific civil law remedies enabling Bug River claimants to seek redress before Polish courts for any pecuniary and/or non-pecuniary damage suffered due to the defective operation of the domestic legislation prior to the introduction of the new compensation mechanism.

The existing case-law of the domestic courts further confirmed the availability of a civil action brought under Article 417 or Article 417¹ of the Civil Code by the Bug River claimants in respect of material damage. In its two judgments delivered in 2004, the Supreme Court found the Polish state authorities to be liable under Article 417 of the Civil Code for pecuniary damage resulting from the non-enforcement of the “right to credit” (“prawo zaliczania”) on account of the defective operation of the Bug River legislation (judgment of 30/06/2004, No. IV CK 491/03 and judgment of 06/10/2004, no. I CK 447/2003).

The Polish authorities further consider that, if Bug River claimants so desire, they may lodge a complaint of non-pecuniary damage before the Polish courts, relying on Article 448 in conjunction with Article 23 of the Civil Code. The authorities have undertaken not to challenge the fact that these provisions constitute an adequate legal basis for bringing such a complaint.

3. The Court’s assessment of the measures adopted in the framework of the pilot judgment procedure

The Polish authorities selected a group of priority cases from among those pending before the Court with a view to testing the new compensation mechanism. In its decisions of 4 December 2007 in two similar cases, the Court found that the maximum level of compensation prescribed by the new law of 2005 met the requirements of the Convention, and that the compensation procedures available to the claimants under that law functioned effectively (decisions in the cases of Wolkenberg and others v. Poland, Application No. 50003/99, and of Witkowska-Tobola v. Poland, Application No. 11208/02). The Court also took note of the specific civil-law remedies enabling Bug River claimants to seek redress before Polish courts for any pecuniary and/or non-pecuniary damage sustained by them due to the structural failings deemed contrary to Article 1 of Protocol No. 1 in the principal judgment. On the basis of these findings, the Court initiated the process of striking identical cases out of its list. It struck out 112 applications between December 2007 and September 2008, and 176 other applications in September 2008. On 23 September 2008 the Court decided to conclude the pilot judgment procedure applied to the “Bug River” cases (cf. decision in the case of E.G. against Poland of 23 September 2008).

The Court pointed out that these were without prejudice to any decision it might take to restore the struck-out applications to the list of cases or to deal substantively with subsequent similar applications in the case when the future functioning of the compensation mechanism introduced by the July 2005 Act so justify (cf. §77 in fine of the aforementioned decision in the case of Wolkenberg and others v. Poland, and §29 in fine of the aforementioned decision E.G. against Poland.).

4. Publication

The Court’s judgment has been published on the Ministry of Justice website www.ms.gov.pl.

III. Conclusions of the respondent state

The government consider that the payment of the amount agreed upon in the friendly settlement reached in this case has fully redressed the consequences for the applicant of the violation of the Convention found by the Court, that the general measures adopted will prevent similar violations, and that Poland has therefore complied with its obligations under Article 46, paragraph 1 of the Convention.