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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> E.G v Poland - 50425/99 [2008] ECHR 971 (23 September 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/971.html Cite as: [2008] ECHR 971

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FOURTH SECTION

DECISION

PILOT-JUDGMENT PROCEDURE

Application no. 50425/99
by E.G.

against Poland

and 175 other Bug River applications

The European Court of Human Rights (Fourth Section), sitting on 23 September 2008 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä, judges,
and Lawrence Early, Section Registrar,

Having regard to application no. 50425/99 lodged by E.G. on 16 December 1998 and to the remaining 175 applications listed in the annex to this decision,

Having regard to the decision to apply the pilot-judgment procedure and to adjourn its consideration of applications deriving from the same systemic problem identified in the case of Broniowski v. Poland (no. 31443/96),

Having regard to the decisions to strike the applications Wolkenberg and Others v. Poland (no. 50003/99) and Witkowska-Toboła v. Poland (no. 11208/02) out of the Court's list of cases,

Having deliberated, decides as follows:

THE FACTS

1.  The main applicant, Mr E.G. (“the applicant”), is a Polish national who was born in 1937 and lives in Chełm.

The names and personal details of the remaining 175 applicants (“the applicants”) and the facts pertaining to their cases are presented in the attached statements setting out the particular circumstances of each case.

A.  Historical background to Bug River cases before the Court

4.  On an unspecified date following 9 September 1944 the applicants and their families, like some 1,240,000 other Polish citizens who were at various dates from 1944 to 1953 subject to repatriation from the territories beyond the Bug River, were repatriated to Poland under the provisions of the so-called “Republican Agreements” (umowy republikańskie).

5.  A more detailed account of the historical background and the relevant provisions of the Republican Agreements and other related treaties and laws can be found in the Court's judgment in the pilot case of Broniowski v. Poland (see, in particular, Broniowski v. Poland (merits) [GC], no. 31443/96, ECHR 2004-V, §§ 10-12 and 39-45).

B.  Particular circumstances of case no. 50425/99

6.  The facts of the case, as submitted by the applicant, may be summarised as follows.

7.  On 21 November 1989 the applicant asked the Przemyśl District Office (Urząd Rejonowy) to enable him to acquire State property in compensation for the property abandoned in the territories beyond the Bug River.

8.  On 31 May 1990 the Chełm District Court (Sąd Rejonowy) gave a declaratory judgment stating that the applicant's parents had owned real property in the territories beyond the Bug River.

9.  On 27 December 1990 the authorities informed him that the realisation of his claim depended on the adoption of future measures by Parliament in respect of Bug River claims.

10.  On 7 November 1991 the Chełm District Court gave a decision declaring that the applicant had acquired the entire estate left by his mother.

11.  On an unspecified date the applicant lodged a claim for compensation for the Bug River property against the State Treasury (Skarb Państwa). He asked the first-instance court for an exemption from court fees due for proceeding with his claim but his request was refused. On 10 September 2002 the Lublin Court of Appeal (Sąd Apelacyjny) dismissed the applicant's appeal against the first-instance decision in view of the manifest lack of any legal basis for the claim. The applicant desisted from pursuing his action.

12.  The applicant's subsequent attempts to acquire State property were unsuccessful. The only possibility of enforcing the claim was to participate in competitive bids for the sale of State property. However, the State authorities throughout Poland officially acknowledged the acute shortage of State-owned land designated for the realisation of the Bug River claims.

This fact and the fact that at the material time it was the authorities' common practice to desist from organising auctions for Bug River claimants or to openly deny them the opportunity to enforce their entitlement through the statutory bidding procedure was established by the Court in the Broniowski judgment (see Broniowski, cited above, §§ 48-61, 69-87 and 168-176).

13.  On 3 February 2006 the applicant initiated proceedings under the Law on the realisation of the right to compensation for property left beyond the present borders of the Polish State (Ustawa o realizacji prawa do rekompensaty z tytułu pozostawienia nieruchomości poza obecnymi granicami państwa polskiego) (“the July 2005 Act”) in order to obtain compensation for the Bug River property.

14.  On 28 November 2006 the Governor of Opole (Wojewoda) refused to admit evidence from a valuation report produced by the applicant since that document did not comply with the requirements laid down in the July 2005 Act. The applicant was also asked to rectify other procedural shortcomings and, in particular, to produce documentary evidence concerning his and his late parents' places of residence. The applicant appealed against the Governor's order but the appeal was rejected as inadmissible in law on 16 April 2007.

15.  On 6 December 2007 the applicant submitted a fresh valuation report. On 16 January 2008 the Governor again asked the applicant to produce documents concerning the places of residence. The proceedings are pending.

C.  Relevant domestic law and practice in respect of Bug River claims

16.  A detailed description of the relevant domestic law and practice concerning the Bug River property is set out in the judgments delivered by the Court in the pilot case of Broniowski v. Poland (see Broniowski v. Poland (merits), cited above §§ 39-120; and Broniowski v. Poland (friendly settlement) [GC], no. 31443/96, §§ 14-30, ECHR 2005-IX.

17.  The operation of the compensation scheme introduced by the July 2005 Act is described in the Court's decisions given in the cases of Wolkenberg and Others v. Poland (dec.) no. 50003/99, 4 December 2007, §§ 18-23, ECHR 2007-...; and Witkowska-Toboła v. Poland (dec.) no. 11208/02, 4 December 2007, §§ 22 27.

COMPLAINT

18.  In all the cases the applicants in essence complained about the State's continued failure to secure the implementation of their right to compensation for the Bug River property in the period before the entry into force of the July 2005 Act and about the subsequent reduction of their compensatory entitlement to 20% of the original property's current value. They alleged a violation of Article 1 of Protocol No. 1 to the Convention.

THE LAW

A.  Application of the pilot-judgment procedure

19.  The present case, like some other 190 similar cases currently pending before the Court at various stages of the procedure, had been examined in accordance with the pilot-judgment procedure following the judgment given by the Court in the Broniowski case (see Broniowski (merits), cited above §§ 189 et seq.). The applicant's complaint originated in the same structural shortcoming found to have been at the root of the Court's finding of a violation of Article 1 of Protocol No. 1 in the pilot case and defined as “a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the failure to set up an effective mechanism to implement the “right to credit” of Bug River claimants” which “ha[d] affected and remain[ed] capable of affecting a large number of persons” (ibid., see also the third operative provision of the judgment).

20.  In that connection, and having regard to the number of persons potentially affected by the systemic violation of the Convention, the Court directed that “the respondent State must, through appropriate legal measures and administrative practice, 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, in accordance with the principles of protection of property rights under Article 1 of Protocol No. 1” (ibid. § 194 and the fourth operative provision of the judgment).

B.  Application of Article 37 of the Convention

21.  Article 37 of the Convention reads, in so far as relevant, as follows:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

...

(b)  the matter has been resolved; ...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2.  The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

22.  In the cases of Wolkenberg and Others v. Poland and Witkowska Toboła v. Poland the Court, having regard to the general compatibility of the compensation scheme introduced by the July 2005 Act with the principles of protection of property rights, in particular with the principles relating to compensation and to the effective functioning of that Act in practice, as well as to the availability of domestic remedies enabling Bug River claimants to recover compensation for any past material or non material prejudice suffered as a result of the previous defective operation of the domestic legislation, was satisfied that the issue giving rise to the Bug River cases had been resolved for the purposes of Article 37 § 1 of the Convention.

23.  The Court held that the procedures under the July 2005 Act had provided the applicants and other Bug River claimants with relief at domestic level which made its further examination of their applications and of other similar applications no longer justified. In consequence and finding no special circumstances regarding respect for human rights that would require the continued examination of the cases by virtue of Article 37 § 1 in fine, the Court decided to strike the applications out of its list of cases (see Wolkenberg and Others v. Poland, cited above, §§ 60-77; and Witkowska Toboła v. Poland, cited above, §§ 62-79).

24.  Having regard to the circumstances of the present cases and to the fact that it is open to most applicants to avail themselves of the compensation scheme introduced by the July 2005 Act and that in the remaining cases the applicants have already satisfied their compensatory entitlement to the full extent defined by that Act, the Court finds no reason justifying a departure from the conclusion reached in the above-mentioned cases. Accordingly, the 176 applications under consideration should be struck out of the Court's list of cases.

C.  Consequences for the application of the pilot-judgment procedure

25.  The issue giving rise to the Bug River cases has been resolved for the purposes of Article 37 § 1 of the Convention and both the level of compensation available and the procedures under the July 2005 provided Bug River claimants with relief at domestic level. For that reason, as the Court has already held, its further examination of similar cases is no longer justified (see paragraphs 22-23 above, with further references). Having regard to the object and purpose of the pilot-judgment procedure (see Broniowski (merits), cited above §§ 193-194; Broniowski (friendly settlement, cited above, § 35; Hutten-Czapska v. Poland (merits) [GC], no. 35014/97, §§ 231-234, ECHR 2006-VIII; Wolkenberg and Others, cited above, §§ 34-36) the Court would wish to consider the consequences of the above findings in the context of the continued application of this procedure.

26.  It notes that after the adoption of the strike-out decisions in the cases of Wolkenberg and Others and Witkowska-Toboła it has already delivered some 110 further individual summary decisions. The present “global” decision includes 176 Bug River cases concerning identical, repetitive complaints. Further applications are being lodged with the Court every month. As a result, the Court is being continually called upon to rule in cases where the Convention issue has been resolved at domestic level.

27.  In this context, the Court would recall that the pilot-judgment procedure is primarily designed to assist the Contracting States in fulfilling their role in the Convention system by resolving systemic or structural problems at national level, thereby securing to the persons concerned their Convention rights and freedoms as required by Article 1 of the Convention, offering to them more rapid redress but also, at the same time, making it unnecessary for the Court to adjudicate on large numbers of applications similar in substance which it would otherwise have to take to judgment (see Broniowski (friendly settlement),§ 35; and Wolkenberg and Others, cited above, § 34).

It is also to be recalled that the Court's principal task under the Convention is, as defined by Article 19 of the Convention, “to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”. A requirement to deliver, continually, individual decisions in cases where there is no longer any live Convention issue cannot be said to be compatible with this task. Nor does this judicial exercise contribute usefully or in any meaningful way to the strengthening of human rights protection under the Convention; indeed, it cannot be excluded that in the future the Court may wish to redefine its role in this respect and decline to examine such cases.

28.  Nor can it be ruled out that there may be cases before the Court where, after the Court has identified a systemic problem in its judgment, the respondent State delays the implementation of general measures beyond a reasonable time (see Broniowski (merits), cited above, § 198) and leaves the problem unresolved, thus generating repetitive Convention violations for a future indefinite time. In such circumstances, the Court will have no choice but to examine and take to judgment the remaining applications pending before it in order to trigger the execution process before the Committee of Ministers and to ensure the observance of the Convention at domestic level.

29.  However, although the general context of the pilot-judgment procedure plays an important role in the examination of the Broniowski follow-up cases, in which the Court used this procedural tool for the first time, its assessment and conclusions are confined to their specific circumstances. In particular, it is to be noted that the Court – after two final pilot judgments, one on the merits and one approving a friendly settlement comprising the State's commitments to implement the necessary general measures rapidly – in its own subsequent ruling established that “the matter has been resolved” (see Wolkenberg and Others, ibid. §§ 75-77 and paragraph 23 above). It also found satisfactory domestic measures for offering Bug River claimants redress making up for an award under Article 41 (ibid. §§ 75-76).

While it still remains for the Committee of Ministers to supervise, in accordance with Article 46 of the Convention, the execution of the Broniowski merits and friendly-settlement judgments and the discharge by the Polish State of its obligation to ensure the continued effective operation of the Bug River legislation, the Court's task under Article 19 of the Convention has been fulfilled. In these circumstances, the continued application of the pilot-judgment procedure is no longer justified. Consequently, the Court closes the pilot-judgment procedure applied in the Broniowski judgment of 22 June 2004 in respect of Bug River cases.

This ruling is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, the present applications to the list of cases or to deal substantively with subsequent cases if the circumstances, in particular the future functioning of the compensation scheme under the July 2005 Act, so justify (see Wolkenberg and Others, cited above, § 77 in fine).

For these reasons, the Court unanimously

Lawrence Early Nicolas Bratza
Registrar President

Annex

175 Bug River cases

List of applications