European Court of Human Rights

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You are here: BAILII >> Databases >> European Court of Human Rights >> Kadluczka v Poland - 31438/06 [2010] ECHR 109 (2 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/109.html
Cite as: [2010] ECHR 109

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084

02.02.2010

Press release issued by the Registrar

CHAMBER JUDGMENTS¹

Kadluczka v. Poland (application no. 31438/06)

Krosta v. Poland (application no. 36137/04)

LACK OF JUDICIAL REVIEW OF DECISIONS REFUSING A SECOND WORLD WAR DEPORTEE AND A DEPORTEE’S DAUGHTER COMPENSATION

unanimously

Violations of Article 6 § 1 (right of access to court)

of the European Convention on Human Rights

Principal facts

The applicants, Jan Kadłuczka and Roman Krosta, are Polish nationals who were born in 1931 and 1922, respectively. Mr Kadłuczka lives in Kraków and Mr Krosta in Nowe Brzesko (Poland). During the Second World War both applicants were deported from Poland to Germany where they worked as forced labourers on farms until the liberation in 1945. Mr Krosta worked on the same farm as his wife and they had a daughter in April 1945. After the end of the war, they registered her as having been born in Poland in May 1945 for fear of any negative consequences of her having been born in Germany.

In the period immediately following the Second World War Poland did not conclude a specific agreement with Germany regarding the issue of reparations. However, following international negotiations from 1998 to 2000, a Joint Statement was adopted which established a compensation scheme for those subjected to slave or forced labour by Nazi Germany. The agreement was incorporated in the German Law of 2 August 2000 on the Creation of the “Remembrance, Responsibility and Future” Foundation (the “GFA”). Section 10 of the Act stipulated that partner organisations, including the Polish Foundation, were entrusted with evaluation of claims and disbursement of payment to those eligible.

In June and August 2001, respectively, Mr Kadłuczka and Mr Krosta applied to the Polish-German Reconciliation Foundation for compensation on account of their forced labour during the war.

Mr Kadłuczka, eligible for benefits as he belonged to the category of “relocated persons” who had been forced to work on a German farm, claimed before the Foundation that he had worked on a farm in Wadów which had been under German administration. To substantiate his claim he submitted two certificates issued by the Ruszcza Catholic Parish and the Wadów Agricultural Society as well as the resolution concerning the nationalisation of the farm in Wadów. However, the Foundation’s Verification Commission, holding that those documents did not duly demonstrate that the applicant had worked on a farm under German administration, refused his claim. The Foundation’s Appeal Commission subsequently refused his claim on two more occasions on the same ground.

In July 2004 Mr Krosta was found eligible for benefits and was awarded 1,124.84 euros (EUR). A similar claim made on behalf of his daughter was, however, refused in August 2003. On appeal it was agreed that children born to parents deported to Germany and subjected to forced labour were eligible; however, according to the identity card of the applicant’s daughter, she had not been born in Germany but in Poland.

The applicants did not seek judicial review of those decisions as the prevailing position of the domestic courts at the time was that a claim before either an administrative or civil court was excluded. On 27 June 2007 the Supreme Court revisited that practice by adopting a resolution in which it held that claims against the Polish Foundation in respect of Nazi persecution were civil claims in the formal sense, therefore giving the civil courts jurisdiction to examine such claims.

Complaint, procedure and composition of the Court

The applicants complained in particular that there was no authority which could have reviewed the Polish-German Reconciliation Foundation’s refusal to grant compensation – to Mr Kadłuczka and to Mr Krosta’s daughter – for the applicants’ forced labour during the war. They relied on Article 6 § 1 (right of access to a court).

The applications were lodged with the European Court of Human Rights on 21 July 2006 and 27 August 2004, respectively.

Judgment was given by a Chamber of seven judges, composed as follows:

Nicolas Bratza (the United Kingdom), President,
Lech Garlicki (Poland),
Giovanni Bonello (Malta),
Ljiljana Mijović (Bosnia and Herzegovina),
David Thór Björgvinsson (Iceland),
Ledi Bianku (Albania),
Mihai Poalelungi (Moldova), judges,

and also Fatoş Aracı, Deputy Section Registrar.

Decision of the Court

Article 6 § 1

The essence of both applicants’ complaints was that the Polish Foundation had wrongly assessed the facts underlying their claims resulting in a flawed application of the eligibility conditions to their cases.

The Court reiterated that it was clear that the Polish State had no obligation of any kind to redress the wrongs inflicted during the Second World War by another State; its citizens had been victims and not perpetrators. The compensation at issue had been voluntary in the sense that the States had been free to establish the scheme and to determine the scope of its beneficiaries. However, once such a general scheme had been adopted and claimants could reasonably be considered to have complied with the eligibility conditions stipulated in the GFA and in the Foundation's regulations, he or she had a right to be awarded payment by the Foundation. The Court further pointed out that decisions to grant payments in respect of claimants who resided in Poland had been taken, for all practical purposes, by the Polish Foundation, there having been no evidence to show that the German Foundation had been involved in reviewing decisions in the applicants’ case.

The Court then ascertained that the Polish Foundation's adjudicating bodies – the Verification Commission and the Appeal Commission – could not be considered tribunals conforming to the requirements of Article 6 § 1. For example, the independence of the Foundation's adjudicating bodies had been open to serious doubt, its members having been appointed and dismissed by the Foundation's management board and/or in consultation with the Foundation's supervisory board. Furthermore, the rules governing the operation of the Foundation's adjudicating bodies had been set out in regulations drafted by the management board and adopted by the supervisory board. Indeed, the members of the Verification Commission and the Appeal Commission had not even had tenure. Lastly, as concerned procedural guarantees, the adjudicating commissions had no clear and publicly available rules of procedure and had not held public hearings.

As such then, the decisions of the Foundation's adjudicating bodies should have been subject to review by a judicial body having full jurisdiction. However, the Court noted that, until the Supreme Court's Resolution of 27 June 2007, bringing judicial proceedings would obviously have been futile for the applicants, as such a possibility had arisen only after they had lodged their applications.

The Court therefore concluded unanimously that the exclusion of judicial review in respect of the decisions given by the Foundation in the applicants’ cases had impaired the very essence of their right of access to a court, in violation of Article 6 § 1.

Article 41 (just satisfaction)

No award was made in either case.

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The judgments are available only in English. This press release is a document produced by the Registry. It does not bind the Court. Further information about the Court can be found on the Court’s Internet site (http://www.echr.coe.int)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.