Mensenrechtenhof: minzame schikking tussen Polen en 80.000 grondeigenaren die hun bezit na Tweede Wereldoorlog kwijtraakten (en)
The European Court of Human Rights has today notified in writing its Grand Chamber friendly settlement judgment in the case Broniowski v. Poland (application no. 31443/96), which concerns claims for compensation for property forcibly abandoned between 1944 and 1953 in the eastern provinces of pre-war Poland, the so-called "Bug River claims" (roszczenia zabużańskie).
Under the terms of the friendly settlement agreement, the applicant is to be paid 213,000 Polish zlotys (PLN) (equivalent to approximately 54,300 euros (EUR)) for pecuniary and non-pecuniary damage and PLN 24,000 (approximately EUR 6,100) for costs and expenses.
The judgment concerns not only the individual applicant's claims, however, but also those of nearly 80,000 other people in the same situation. It is the first time that one of the Court's judgments has set out general as well as individual remedial measures.
The Polish Government - which, in July 2005, passed a new law setting the ceiling for compensation for Bug River property at 20% of its original value - has undertaken the following:
to implement as rapidly as possible all the necessary measures in terms of domestic law and practice to secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu;
to intensify their endeavours to make the new Bug River legislation effective and to improve the practical operation of the mechanism designed to provide the Bug River claimants with compensation;
to ensure that the relevant State agencies do not hinder the Bug River claimants in enforcing their "right to credit";
to make available to the remaining Bug River claimants some form of redress for any material or non-material damage caused to them by the defective operation of the Bug River legislative scheme.
(The judgment is available on the Court's Internet site in English and French: www.echr.coe.int).
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1.Principal facts
The applicant, Jerzy Broniowski, is a Polish national, born in 1944 and living in Wieliczka (Poland).
The case concerned the alleged failure to satisfy the applicant's entitlement to compensation for property (a house and land) in Lwów (now Lviv, in the Ukraine) which belonged to his grandmother when the area was still part of Poland, before the Second World War. That entitlement was first bequeathed to the applicant's mother and, after her death in 1989, to the applicant.
The applicant's grandmother along with many others who had been living in the Eastern provinces of pre-war Poland (which included large areas of present-day Belarus, Ukraine and territories around Vilnius in what is now Lithuania) was repatriated after Poland's eastern border had been redrawn along the Bug River (whose central course formed part of the Curzon line), in the aftermath of the Second World War. The area was known as the "Borderlands" ("Kresy") and also, "territories beyond the Bug River" ("ziemie zabużańskie").
Following the so-called "republican agreements" between the Polish Committee of National Liberation and the governments of the former Soviet Republics of Lithuania, Belarus and Ukraine, Poland undertook to compensate those who had been "repatriated" from the "territories beyond the Bug River" and had had to abandon their properties. From 1944 to 1953 around 1,240,000 people were "repatriated" under the provisions of the republican agreements.
Since 1946, Polish law has entitled those repatriated in such circumstances to compensation in kind; they have been entitled to buy land from the State and have the value of the abandoned property offset against the fee for the so-called "perpetual use" of this land or against the price of the compensatory property or land.
However, following the entry into force of the Local Government Act of 10 May 1990 and the enactment of further laws reducing the pool of State property available to the Bug River claimants - in particular, by excluding the possibility of enforcing their claims against State agricultural and military property - the State Treasury has been unable to fulfil its obligation to meet the compensation claims because it has had insufficient land to meet the demand. In addition, Bug River claimants have frequently been either excluded from auctions of State property or have had their participation subjected to various conditions.
According to the Government, the anticipated total number of those entitled to compensation is nearly 80,000.
On 19 December 2002 the Polish Constitutional Court declared the provisions that excluded the possibility of enforcing the Bug River claims against State agricultural and military property unconstitutional. However, following that judgment, the State agencies administering State agricultural and military property suspended all auctions, considering that further legislation was required to deal with the implementation of the judgment.
On 30 January 2004, when the Law of 12 December 2003 entered into force, the Polish State's obligations towards the applicant, and all other Bug River claimants who had ever obtained any compensatory property under the previous legislation, was deemed to have been discharged. Claimants who had never received any such compensation were awarded 15% of their original entitlement, subject to a ceiling of 50,000 PLN.
On 15 December 2004, on an application by a group of members of the Polish Parliament, the Constitutional Court declared unconstitutional certain provisions of the Law of 12 December 2003, among other things, the section fixing the 15% and 50,000 PLN ceiling on claims and the section excluding from the scope of the compensation scheme under that Act anyone who, like the applicant, had received at least some compensation under previous laws.
On 2 March 2005 the Government submitted a bill to Parliament proposing that the maximum compensation available to Bug River claimants should be 15% of the value of the original Bug River property and that the "right to credit" could be realised either, as previously, through an auction procedure, or, through cash payment to be distributed from a special compensation fund. The first reading of the Bill took place on 15 April 2005, following which the matter was referred to the Parliamentary Commission for the State Treasury. During discussions that took place in May and June 2005 the ceiling of 15% was criticised by many deputies and it was suggested that, in order to secure compliance with the European Court of Human Right's principal judgment in the case, the level of compensation should be increased. On 8 July 2005 the Sejm (first house of the Polish Parliament) passed the July 2005 Act, which set the statutory ceiling for compensation for Bug River property at 20%. The law will enter into force on 7 October 2005.
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2.Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 12 March 1996 and transmitted to the European Court of Human Rights on 1 November 1998. On 26 March 2002 the Chamber of the Court dealing with the case relinquished jurisdiction in favour of the Grand Chamber1.
A Grand Chamber hearing was held on 23 October 2002 and on 19 December 2002 the case was declared admissible. The Grand Chamber delivered its principal judgment on 22 June 2004, finding that: there had been a violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights; that the violation had originated in a systemic problem connected with the malfunctioning of Polish legislation and practice caused by the failure to set up an effective mechanism to implement the "right to credit" of Bug River claimants; and, through appropriate legal measures and administrative practices, that Poland was to secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu. The Court also found that the question of an award in respect of any pecuniary or non-pecuniary damage was not ready for decision at that time. The applicant was awarded EUR 12,000 for costs and expenses.
On 7 March 2005 the Polish Government asked the Registrar for assistance in negotiations between the parties, aimed at reaching a friendly settlement of the case. Following instructions by the President of the Grand Chamber, representatives of the Registry held meetings with the parties in Warsaw on 23 and 24 June 2005 and again on 5 and 6 September 2005, following which the parties signed a friendly-settlement agreement.
Judgment was given by the Grand Chamber of 17 judges, composed as follows:
Luzius Wildhaber (Swiss), President,
Jean-Paul Costa (French),
Georg Ress (German),
Nicolas Bratza (British),
Elisabeth Palm (Swedish),
Lucius Caflisch (Swiss)2,
Viera Strá_nická (Slovakian)
Volodymyr Butkevych (Ukrainian),
Bostjan M. Zupančič (Slovenian),
John Hedigan (Irish),
Matti Pellonpää (Finnish),
András Baka (Hungarian),
Rait Maruste (Estonian),
Mindia Ugrekhelidze (Georgian),
Stanislav Pavlovschi (Moldovan),
Lech Garlicki (Polish),
Hanne Sophie Greve (Norwegian), judges,
and also Paul Mahoney, Registrar.
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3.The Court's Decision3
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1.Implications of a "pilot-judgment procedure"
The Court noted that the friendly settlement in the applicant's case had been reached after the Court delivered its principal judgment, in which it held that the violation of the applicant's Convention right originated in a widespread, systemic problem as a consequence of which a whole class of people had been adversely affected. The judgment had made clear that general measures at national level were called for in execution of the judgment and that those measures had to take into account the many people affected and remedy the systemic defect underlying the Court's finding of a violation. It also observed that they should include a scheme offering to those affected redress for the Convention violation. It stressed that once such a defect has been identified, it fell to the national authorities, under the supervision of the Council of Europe's executive body, the Committee of Ministers, to take, retroactively if appropriate, the necessary remedial measures in accordance with the subsidiary character of the Convention.
This kind of adjudicative approach by the Court to systemic or structural problems in the national legal order has been described as a "pilot-judgment procedure". In this case, its object was to facilitate the most speedy and effective resolution of a dysfunction affecting the protection of the right of property in the national - Polish - legal order. One of the relevant factors considered by the Court was the growing threat to the Convention system and to the Court's ability to handle its ever-increasing caseload that resulted from large numbers of repetitive cases deriving from, among other things, the same structural or systemic problem. The pilot-judgment procedure was primarily designed to assist the States which had ratified the Convention in resolving such problems at national level, thereby securing to those concerned the rights and freedoms as required by Article 1 of the Convention, offering to them more rapid redress and, at the same time, easing the burden on the Court which would otherwise have to take to judgment large numbers of applications similar in substance. In the pilot judgment in Mr Broniowski's application, the Court, after finding a violation, had also adjourned its consideration of applications deriving from the same general cause "pending the implementation of the relevant general measures".
In the context of a friendly settlement reached after the delivery of a pilot judgment on the merits of the case, the notion of "respect of human rights as defined in the Convention and the Protocols thereto" necessarily extended beyond the sole interests of the individual applicant and required the Court to examine the case also from the point view of "relevant general measures".
In view of the systemic or structural character of the shortcoming at the root of the finding of a violation in a pilot judgment, it was evidently desirable for the effective functioning of the Convention system that individual and general redress should go hand in hand. The respondent State had, within its power, to take the necessary general and individual measures at the same time and to proceed to a friendly settlement with the applicant on the basis of an agreement incorporating both categories of measures, thereby strengthening the subsidiary character of the Convention system of human rights protection and facilitating the performance of the respective tasks of the Court and the Committee of Ministers, under Articles 41 and 46 of the Convention. Conversely, any failure by a State to act in such a manner necessarily placed the Convention system under greater strain and undermined its subsidiary character.
In those circumstances, in determining whether it could strike the present application out of its list on the ground that the matter had been resolved and that respect for human rights as defined in the Convention and its Protocols did not require its further examination, it was appropriate for the Court to consider not only to the applicant's individual situation but also measures aimed at resolving the underlying general defect in the Polish legal order identified in the principal judgment as the source of the violation found.
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2.Terms of the friendly settlement agreed by the parties
The Court noted that the friendly settlement reached between Mr Broniowski and the Polish Government addressed the general as well as the individual aspects of the finding of a violation of the right of property under Article 1 of Protocol No. 1 made by the Court in the principal judgment. The parties had recognised the implications, for the purposes of their friendly settlement, of the principal judgment as a pilot judgment.
General measures
Prior to the settlement, Poland introduced the July 2005 Act, to take into account the findings of the Court's principal judgment and the judgment of 15 December 2004 by the Constitutional Court.
The July 2005 Act and the Government's undertakings in their declaration in the friendly settlement were evidently designed to remove the practical and legal obstacles on the exercise of the "right to credit" by Bug River claimants. The declaration, as far as general measures were concerned, related both to the future functioning of the Bug River legislative scheme and redress for any past prejudice suffered by Bug River claimants as a result of the previous defective operation of that scheme.
In particular, the Government had referred to specific civil law remedies in connection with enabling the remaining Bug River claimants to seek compensation before the Polish courts for any material and/or non-material damage caused by the systemic situation found to be in breach of Article 1 of Protocol No. 1 in the principal judgment and thus to claim redress, as would be possible under Article 41, if the Court were to deal with their cases on an individual basis.
On the other hand, the position in Polish law regarding recovery of compensation from State authorities for non-material damage was less clear. In their declaration in the friendly settlement the Polish Government had suggested that compensation in kind for past non-material damage suffered by Bug River claimants, in particular frustration and uncertainty, had already been provided under the July 2005 Act. However, the Government had also undertaken not to contest that Article 448 read in conjunction with Article 23 of the Civil Code would be capable of providing a legal base for a claim in respect of non-material damage should any Bug River claimant wish to bring one before the Polish courts.
In their amending legislation and in their declaration in the friendly settlement, the Polish Government had, in the Court's view, demonstrated an active commitment to take measures intended to remedy the systemic defects found both by the Court in its principal judgment and by the Polish Constitutional Court. While it was for the Committee of Ministers to evaluate those general measures and their implementation as far as the supervision of the execution of the Court's principal judgment was concerned, the Court, in exercising its own competence to decide whether to strike the case out of its list under Articles 37 § 1(b) and 39 following a friendly settlement between the parties, could not but rely on the Government's actual and promised remedial action as a positive factor.
Individual measures
As to the reparation afforded to the individual applicant, Mr Broniowski, the Court noted that the payment to be made to him under the settlement provided him with both accelerated satisfaction of his "right to credit" under the Bug River legislative scheme and compensation for any pecuniary and non-pecuniary damage sustained by him. Also, he remained free to seek and recover compensation over and above the current 20% ceiling on compensation fixed by the July 2005 Act in so far as Polish law allowed that, in the future, there was nothing to prevent a future challenge of that ceiling before either the Polish Constitutional Court or ultimately the European Court of Human Rights.
Conclusion
The Court concluded that it was satisfied that the settlement in the case was based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 of the Convention and Rule 62 § 3 of the Rules of Court) and that the case should therefore be struck out of the list.
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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. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments.
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