FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38180/02 by Stefan PACIEJ against Poland

The European Court of Human Rights (Fourth Section), sitting on 24 November 2009 as a Chamber composed of:

Nicolas Bratza , President, Lech Garlicki , Giovanni Bonello , Ljiljana Mijović , David Thór Björgvinsson , Ledi Bianku , Mihai Poalelungi , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 14 October 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Stefan Paciej, is a Polish national who was born in 1927 and lives in Luba ń . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of t he Ministry of Foreign Affairs.

A. The circumstances of the case

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

On 4 December 2000 the applicant applied to the Polish-German Reconciliation Foundation (“the Foundation”) for payment of a benefit on account of his deportation and forced labour during the Second World War. He submitted that from April 1942 to December 1943 he had been a forced labourer on a farm in Gerlachshain. In December 1943 he had been relocated to Königstein (near Dresden ) where he had been required to work as a forced labourer for the company Grün&Bilfinger AG. He alleged that in Königstein he had been imprisoned in a penal camp ( obóz karny ).

Th e applicant ’ s request was made under the scheme for slave and forced labourers (“the second compensation scheme”) established under the Joint Statement of 17 July 2000, the German Law of 2 August 2000 on the Creation of the “Remembrance, Responsibility and Future” Foundation (“the German Foundation Act ; GFA ”) and the subsequent Agreement of 16 February 2001 between the Remembrance, Responsibility and Future Foundation (“the German Foundation”) and the Polish-German Reconciliation Founda tion .

On 11 September 2001 the Foundation ’ s Verification Commission found that the applicant was eligible for payment of a benefit , his persecution falling under the 4 th category which included persons who had been deported to Germany and subjected to forced labour in agriculture.

On 1 October 2001 the applicant appealed against the decision of 11 September 2001. He claimed that he had performed forced labour both in agriculture and later during his internment in the penal camp, and that the Verification Commission had failed to grant him compensation on account of the latter persecution. He submitted that by doing so the Foundation breached the relevant rules which required it to grant benefit to a claimant on account of a more favourable category of eligibility. The applicant produced three items of documentary evidence in support of his claims:

a/ a statement by a daughter of a German farmer where he used to work that in December 1943 he had been transported to a camp;

b/ a certificate of work for the company Grün&Bilfinger AG which attested, according to the applicant, that he had been interned in a camp;

c/ a certificate issued by the Polish Red Cross in June 1945 that the applicant had returned from a camp in Dresden .

On 18 April 2002 the Appeal Commission changed the decision of 11 September 2001. It held that the applicant ’ s persecution came under the 3 rd category of eligibility, i.e. persons who had been deported to Germany and subjected to forced labour in industry. Consequently, the applicant was awarded DEM 4,000. The Appeal Commission informed the applicant that his request for consideration of his internment in the penal camp as falling under the 2 nd category of eligibility could not be granted. It stated that the only persons who came under the 2 nd category of eligibility were the detainees of those camps which were included on the list approved by the German Foundation. However, the applicant ’ s camp was not included on that list.

On 17 July 2002 the applicant appealed against the latter decision. He contested the fact that the Appeal Commission had not taken into account his forced labour during his internment in the penal camp.

On 27 September 2002 the Appeal Commission informed the applicant that his appeal could not be allowed. As regards the applicant ’ s submissions to the effect that his internment in a labour camp ( obóz pracy ) should have been classified as persecution falling under the 2 nd category of persecution, it referred to its findings in the decision of 18 April 2002. The applicant was further informed that his certificate of work ( Arbeitsleistungsbescheinigung ) attested that he had worked for the company Grün&Bilfinger AG, but did not confirm that he had been detained in a penal camp.

The Government submitted that the applicant had been subjected to forced labour for the Grün&Bilfinger AG company in Königstein and had stayed in a camp for forced labourers. However, that camp had not been a penal camp and did not appear on the list of “other places of confinement” adopted by the German Foundation.

B. Relevant domestic law and practice

1 . Compensation scheme for slave and forced labourers (second compensation scheme)

From 1998 to 2000 international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by Nazi Germany. The government of Poland was one of the parties to these negotiations. They were prompted by a number of lawsuits against certain German companies before the courts in the United States in which compensation was sought on account of forced labour during the Second World War. The German companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace. The negotiations concluded on 17 July 2000 with the adoption of a Joint Statement which was signed by all the parties to the negotiations, including the government of Poland .

The parties to the Joint Statement ack nowledged the intention of the G overnment of Germany and of the German companies concerned to accept moral and historic responsibility arising from the use of slave and forced labourers and from other injustices committed during the National Socialist era and the Second World War. They affirmed their consensus of 17 December 1999 on the establishment of the Remembrance, Responsibility and Future Foundation, which was to be a means of providing funds for victims from central and eastern Europe, most of whom had benefited little from prior German compensation and restitution programmes. The parties to the Joint Statement further agreed to base their decisions regarding the distribution of funds on the eligibility criteria set out in the German Foundation Act.

According to the Joint Statement, the G overnment of Germany and the German companies concerned undertook to contribute DEM 5 thousand million to the Remembrance, Responsibility and Future Foundation. The Joint Statement stipulated that the governments of the participating central and eastern European States, including Poland , and the government of Israel agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace.

Subsequently, on 2 August 2000 the German parliament enacted the Law on the creation of the Remembrance, Responsibility and Future Foundation ( Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft” ) . It came into force on 12 August 2000 . However, the disbursement of payments only started on 30 May 2001, once the relevant guarantees had been secured by the German companies concerned with regard to the dismissal of the lawsuits filed against them in the United States courts. The disbursement of payments terminated at the end of 2006.

The relevant parts of the Law on the creation of the Remembrance, Responsibility and Future Foundation provide:

“Preamble

Recognising

that the National Socialist State inflicted severe injustice on slave labourers and forced labourers, through deportation, internment and exploitation, which in some cases extended to destruction through labour, and through a large number of other human - rights violations,

that German companies which participated in the National Socialist injustice bear a historic responsibility and must accept it,

that the companies which have come together in the Foundation Initiative of German Industry [ Stiftungsinitiative der deutschen Wirtschaft ] have acknowledged this responsibility,

that the injustice committed and the human suffering it caused cannot be truly compensated by financial payments,

that the Law comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime,

the German Bundestag acknowledges political and moral responsibility for the victims of National Socialism. The Bundestag also intends to keep alive the memory of the injustice inflicted on the victims for coming generations. ( ... )

Section 1 – Establishment and headquarters

(1) A legally recognised Foundation with the name ‘ Remembrance, Responsibility and Future ’ shall be established under public law. ( ... )

Section 2 – Purpose of the Foundation

(1) The purpose of the Foundation is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from the National Socialist period. ( ... )

Section 10 – Distribution of resources through partner organisations

(1) The approval and disbursement of one-off payments to those persons eligible under section 11 will be carried out through partner organisations. The Foundation is neither authorised nor obligated in this regard. The board of trustees may opt for another mode of payment. ( ... )

Section 11 – Eligible persons

(1) Eligible under this Law are:

1. persons who were held in a concentration camp as defined in section 42(2) of the German Indemnification Act [ Bundesentschädigungsgesetz ] or in another place of confinement outside the territory of what is now the Republic of Austria or a ghetto under comparable conditions and were subjected to forced labour;

2. persons who were deported from their homelands into the territory of the German Reich within the borders of 1937 or to a German-occupied area, subjected to forced labour in a commercial enterprise or for public authorities there, and held under conditions other than those mentioned in paragraph 1, or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions; ( ... )

(2) Eligibility shall be demonstrated by the applicant by submission of documentation. The partner organisation shall take into account relevant evidence. If no relevant evidence is available, the claimant ’ s eligibility may be s ubstantiated in some other way.

S ection 1 2 – Definitions

(1) Specific characteristics of other places of confinement referred to in Section 11, Paragraph 1, Number 1 are inhumane conditions of detention, insufficient nutrition and lack of medical care. (...)”

2. List of concentration camps

Section 42 § 2 of the German Indemnification Act ( Bundesentschädigungsgesetz ) provided that the German Government would issue a decree containing a list of concentration camps within the meaning of the Act. The German Government issued the decree in 1967 with an annex listing concentration camps. It was twice amended, most recently in 1982.

3. List of “other places of confinement”

The German Foundation adopted the list of “other places of confinement” which contained, inter alia , penal camps. Persons detained in one of the camps included on the list were considered to come under the 2 nd category of eligibility. The list was binding on all partner organisations, including the Polish Foundation.

4 . Implementation of the second compensation scheme by Poland

On 10 August 2000 the Polish government submitted to Parliament a bill on the exemption from tax and duties of payments received in connection with Nazi persecution. In the explanatory memorandum to the bill , the government stated that payment of benefits in respect of forced labour for the Nazi regime had been agreed in the course of negotiations involving the respective governments, German companies and the victims. They further stated that, as a result of the agreement with the Germans, Poland would receive more than DEM 1.8 thousand million. On 21 September 2000 the Polish parliament enacted the Law on exemption of payments received in connection with Nazi persecution from tax and duties. That Law also exempted the Polish-German Reconciliation Foundation from taxes due on funds received by the Foundation for the distribution of payments. The Law came into force on 17 November 2000.

On 16 February 2001 an agreement was concluded between the Remembrance, Responsibility and Future Foundation and the Polish ‑ German Reconciliation Foundation (“the partnership agreement”) . Under its terms the Polish ‑ German Reconciliation Foundation was to act as a partner organisation of the German Foundation, with a view to securing prompt disbursement of compensation payments to slave and forced labourers (paragraph 1 of the agreement). Both parties agreed to implement fully the provisions of the G FA and declared that their agreement was in compliance with the Joint Statement of 17 July 2000.

The above agreement further stipulated that the Polish Foundation, as a partner organisation, was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of Poland on 16 February 1999 (paragraph 2). The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way (paragraph 5.1). A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of compensation awarded before an independent appeal body established within the partner organisation (paragraph 5.5). Under paragraph 6.3 of the agreement, decisions taken by the appeal body were final and could not be challenged before a court (paragraph 3).

The Agreement of 16 February 2001 was accompanied by three annexes. Annex no. 3 contained a declaration by the Polish government with regard to responsibility for the disbursement of compensation payments. The relevant parts provide:

“Since 1998 the government of the Republic of Poland has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed by Nazi Germany. In the negotiations, the government has played a significant role on behalf of the representatives of the victims. Due to the government ’ s efforts, former slave and forced labour ers will receive in total DEM 1. 812 thousand million, which constitutes a very positive outcome to the negotiations.

The government of the Republic of Poland will endeavour to ensure that the payments from the Remembrance, Responsibility and Future Foundation, handled by the Polish-German Reconciliation Foundation with the participation of Polish financial institutions, will be processed properly. To that end the Polish authorities will take steps with regard to the Polish-German Reconciliation Foundation within their founding and supervisory competences.”

The statutes of the Polish-German Reconciliation Foundation were amended on the initiative of its founder, namely the Minister of the State Treasury, with a view to implementing the provisions of the G FA and the Agreement of 16 February 2001; those amendments were subsequently registered by the Warsaw District Court on 26 June 2001.

The amended statutes stipulated that the Foundation was to disburse compensation payments to the victims specified in section 11 of the G FA from the funds contributed by the German Foundation on the basis of the same Act (paragraphs 6.2 and 9.2). It further specified that the Foundation ’ s decisions in individual cases were to be taken on the basis of internal regulations. A decision in an individual case could be appealed against; however, a decision taken after an appeal had been considered was final and no appeal lay against it (paragraphs 6.4 and 6.5).

Pursuant to paragraph 20 of the amended statutes , the Verification Commission was to determine individual claims for assistance filed by victims of Nazi persecution. Decisions taken by the Verification Commission could be appealed against to the Appeal Commission.

5 . C ase-law of the Polish courts

In 1997 the Ombudsman referred to the Supreme Court a question of law ( pytanie prawne ), as to whether decisions given by the organs of the Foundation could be appealed to the Supreme Administrative Court and, if not, whether they could be subjected to judicial review in civil proceedings. On 31 March 1998 the Supreme Court adopted resolution no. III ZP 44/97, holding that, since administrative functions could only be delegated by statute, which was not the case with regard to the Polish-German Reconciliation Foundation, its decisions did not meet the requirements of an administrative decision and thus could not be appealed to the Supreme Administrative Court. However, the Supreme Court refused to give a definite answer as to whether the Foundation ’ s decisions could be subject to judicial review in civil proceedings. It nevertheless observed that entitlement to receive a benefit from the Foundation did not fall within the scope of civil law, and thus could not be raised before a civil court. In exceptional cases, such as where the claimant ’ s eligibility had been established but the benefit was n ot paid, a claim could arise under civil law.

In Resolution no. OPS 3/01 of 3 December 2001 , the Supreme Administrative Court upheld the earlier case-law to the effect that it did not have jurisdiction to review the decisions of the Foundation and observed that:

“The Polish-German Reconciliation Foundation, which awards benefits to the victims of Nazi persecutions using the financial resources allocated to it by foreign entities, does not perform functions in the area of public administration. Thus, the source of the entitlement to receive an award from the Foundation does not stem from actions of the public administration.”

It further observed:

“ There is no doubt that the Agreement of 16 October 1991, concluded between the Polish and German Governments, which was not ratified, as well as subsequent acts [starting with the Joint Statement and the German Foundation Act] concerning grants of financial assistance by the Foundation on account of Nazi persecution do not fulfil the criteria which would make it possible to classify them as sources of binding Polish law. No administrative-law relation arises between a claimant and the Foundation on the basis of the aforementioned acts, and consequently the Foundation is not an organ of public administration established by law to determine cases in the sphere of public administration.”

6. The Supreme Court ’ s R esolution of 27 June 2007, no. III CZP 152/06

On 27 June 2007 the Supreme Court adopted R esolution no. III CZP 152/06 in response to a question of law put forward by the Ombudsman. It revisited its earlier case-law on the interpretation of the notion of a “civil case” laid out in Article 2 of the Code of the Civil Procedure in relation to claims against the Foundation. The Supreme Court held that:

“The [civil] courts have jurisdiction in the case where a claimant – due to an unfavourable decision by the “Polish-German Reconciliation” Foundation – is seeking a payment [from the Foundation] in respect of Nazi persecution.”

In the reasons for its R esolution the Supreme Court found, inter alia , that:

“ The procedure concerning examination of claims under the first and the second German fund ... may not be currently instituted. The relevant funds were allocated and the disbursement of payments has been finally concluded. (...)

There is no doubt that the current state of affairs resulting from the relevant case-law , under which th os e persons interested in challenging before a court the Foundation ’ s refusal to grant them a suitable payment are deprived of such a possibility, cannot be accepted in the light of the binding constitutional and Convention standards. Article 184 § 1 in conjunction with Article 177 of the Constitution establishes a presumption in favour of jurisdiction of the ordinary courts which indicates – at least indirectly – that a possible jurisdiction of the administrative courts should be based on a specific statutory rule. (...)

The need for extensive interpretation of the individual ’ s access to a court, or in other words , the right to bring an action (the right to a court) follows also from Article 6 § 1 of the Convention and Article 14 § 1 of the International Covenant on Civil and Political Rights , which stipulate that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations. It may be assumed from the established case-law of the European Court of Human Rights that Article 6 § 1 of the Convention guarantees to everyone the inalienable right to submit for a judicial determination any claims concerning civil rights and obligations. ... Obviously, the right to a court does not denote the right to “win” a case, but it signifies that the filed claim should be examined by a court and determined on the merits (judgment of the Supreme Court of 3 January 2007, no. IV CSK 312/06, unpublished).

The results of interpretation of Articles 1 and 2 of the Code of Civil Procedure thus require us to acknowledge that the [civil] court has jurisdiction whe re a case has the features of a civil case in the substantive sense and where no particular provision delegates its examination and determination to a different organ tha n an ordinary court. The [civil] court also has jurisdiction whe re a case has the features of a civil case only in the formal sense.”

COMPLAINT

The applicant complain ed under Article s 13 and 34 of the Convention that , despite his requests, he had not been informed about the authority which could review the Foundation ’ s decisions. He also contested the Foundation ’ s assessment of facts in his case. The Court considers that the applicant ’ s complaint concerns the lack of access to a court in respect of his claims raised before the Polish Foundation and falls to be examined under Article 6 § 1 of the Convention, the relevant parts of which provide:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...”

THE LAW

The Government argued that Article 6 of the Convention could exceptionally be applicable to the proceedings before the Polish Foundation in respect of the second compensation scheme. However, the proceedings in the applicant ’ s case did not concern the determination of his civil rights and obligations and, as such, they fell outside the scope of Article 6. The applicant failed to prove that he had come under a particular category of persecution, namely that he had been a detainee of a penal camp and his claim amounted to a challenge to the general rules governing the second compensation scheme.

The Government submitted that, pursuant to the Joint Statement and the GFA, the German Foundation made an ex gratia payment of DM 1.812 billion to the Polish Foundation for distribution amongst particularly wronged victims of National Socialism. The Government emphasised that German payments to Polish victims had always been made on an ex gratia basis. Germany felt moral responsibility, but nonetheless emphasised that the question of reparation had been closed and that claims of this type could not be pursued before the courts. The Government stressed that they had had no exclusive or decisive influence in the multilateral negotiations which led to the adoption of the Joint Statement and the enactment of the GFA. The former document provided a general political and financial framework, while the latter was an act of domestic German law containing basic provisions on the newly-established German Foundation and specific regulations concerning the division of fund s and questions of eligibility.

The Government maintained that the wording of the GFA excluded any legal claims in respect of the benefits provided under it and emphasised the moral and voluntary nature of the German payments to the victims of National Socialist persecution. In particular, the preamble to the Act stated that the German Bundestag “assumed moral and political responsibility for the victims of national socialism”. Section 2.1 of the GFA stipulated that the aim of the German Foundation was to provide funds to its partner organisations (not to States) for the payment of benefits ( Leistungen ), not compensation, in respect of Nazi persecution. Section 9.1 of the GFA referred to persons eligible for benefits ( Leistungsberechtigte ).

The Partnership Agreement obliged the Polish Foundation to implement fully the provisions of the GFA and to follow the resolutions of the German Foundation ’ s bodies. The Government emphasised that t he role of the Polish Foundation had been to act as the intermediary body in the process of granting financial assistance from the German funds in accordance with the rules specified in the GFA. They further submitted that the German Foundation made payments through its partner organisations, but subject to the control of the German Foundation. In their opinion, it was only the German Party that could provide the Court with appropriate information about the eligibility conditions adopted in the German Foundation Act and the rules of interpretation of the Act.

The Government maintained that the German Foundation could have distributed the financial assistance on its own. However, having regard to the practical aspects of the process (knowledge of the victims and linguistic competence), it was decided to charge the Polish Foundation with making the payments. The Polish State was not under any legal obligation and did not have authority to make payments, did not receive funds from the German Party and had no obligation or authority to organise a payment system. Furthermore, the Polish Foundation was not in hierarchical subordination to the Polish Government, which in turn could not issue binding instructions as to the Foundation ’ s activities. The Polish Government could in no way take over the responsibility for making payments, even had they wished to do so, because the German Party had not agreed to such terms. It was not the Polish State which entrusted the management of German funds to the Polish Foundation; this had been done by the German Foundation, acting under the GFA. On the other hand, the Government admitted that they exercised some control over the Foundation ; however, they had no power to impose or change specific decisions and eligibility conditions.

The GFA provided for the right to submit an application – through the Polish Foundation – for a one-off ex gratia benefit of a humanitarian nature. However, it was not Polish law or the Polish Foundation ’ s statutes that had constituted the basis for the payment of benefits and the submission of applications. The criteria for the payment of benefits defined in the GFA implied that compliance with those criteria led automatically to the award of a benefit. In those cases the partner organisations had no discretionary powers. However, in the context of the imprecise legal concepts linked with the eligibility criteria, the Polish Foundation and the German Foundation had a so-called “ latitude de jugement ” .

The Government submitted that the applicant ’ s claim that he should have been granted a higher amount and be classified as a deta inee of the penal camp, had been purely subjective. It h ad no basis in Polish or German law and was not substantiated. The Government further maintained that the applicant could no longer claim to be a “victim” within the meaning of Article 34 of the Convention since he had received financial assistance of an ex gratia nature from the Polish Foundation , in line with the eligibility conditions stipulated in the G FA . The Government further argued that the applicant had failed to exhaust relevant domestic remedies in respect of his claims against the Foundation.

The applicant maintained his application and argued that he had been detained in a German camp.

T he Court has to determine whether Article 6 § 1 of the Convention is applicable to the present case. It recalls th at in the case of WoÅ› v. Poland ( WoÅ› v. Poland , no. 22860/02, ECHR 2006 ‑ VII ) it examined a similar complaint in respect of the first compensation scheme , set up on the basis of the bilateral Polish-German agreement of 16 October 1991 and found Article 6 § 1 applicable to the proceedings before the Polish-German Reconciliation Foundation.

In contrast, t he present case concerns the second compensation scheme , which was established following multilateral negotiations with a view to provid ing compensation to slave and forced labourers and other victims of the National Socialist period , primarily from central and eastern Europe. The agreement reached in the negotiations, in particular in respect of the categories of persons who were eligible and the establishment of the German Foundation as a means of providing funds to victims, was subsequently incorporated in the German Foundation Act of 2 August 2000. Section 10 of the Act stipulated that partner organisations, including the Polish Foundation , were entrusted with eva luation of claims and disbursement of payment to eligible claimants. The same provision stipulated that the German Foundation was neither authorised nor obligated in respect of the approval and disbursement of payments by the partner organisations. The particular feature of the second compensation scheme was that the eligibility conditions had been specified in the G FA and the regulations implementing it , while at the same time the examination of the relevant applications was to be carried out by the partner organisations, including the Polish Foundation. The Court considers that for all practical purposes, decisions to qualify applicants as coming under a particular eligibility category and to grant payments in respect of the claimants who resided in Poland were taken by the Polish Foundation ( see Wo Å› v. Poland (dec.), no. 22860/02 , § 66 , ECHR 2005 ‑ IV ) . The Court notes that the German Foundation carried out random checks of the decisions taken by the Polish Foundation, but in its view this does not alter the conclusion that the Polish Foundation played the main role in the process ( Jakowicz v. Poland (dec.), no. 16778/02, § 76, 13 October 2009). In any event, there is no evidence that the decisions in respect of the applicant ’ s claims were reviewed or altered by the German Foundation.

In the WoÅ› judgment the Court held that the Convention imposes no general obligation on the Contracting States to provide redress for wrongs inflicted in the past under the general cover of State authority (see, mutatis mutandis , Kopecký v. Slovakia [GC], no. 44912/98, § 38, ECHR 2004 ‑ IX ). This principle applies to the Federal Republic of Germany in respect of wrongs or damage caused by the German Reich (see Associazione Nazionale Reduci Dalla Prigionia dall ’ Internamento e dalla Guerra di Liberazione (A.N.R.P.) v. Germany ( dec.), no. 45563/04 , 4 September 2007 ; and Ernewein and Others v. Germany (dec.), no. 14849/08 , 2 May 2009) but it is even more relevant for third States, like Poland, who bear no responsibility in connection with wrongs inflicted by a foreign occupying force or another State (see, mutatis mutandis , Broniowski v. Poland [GC], no. 31443/96, § 124 , ECHR 2004 ‑ V ; Maltzan and Others v. Germany (dec.) [GC], nos. 719 16/01, 71917/01 and 10260/02, § 77, ECHR 2005 ‑ V ).

However, the Court recalls that if a compensation scheme in respect of such wrongs were to be established, the substantive regulations which determined the eligibility conditions for any compensation would in principle fall outside the Court ’ s jurisdiction, unless the relevant conditions were manifestly arbitrary or blatantly inconsistent with the fundamental principles of the Convention (see Wo Å› v. Poland , cited above, § 72). In other words, when a State decides to compensate the past wrongs for which it bore no responsibility, it enjoys a significant discretion in determining the beneficiaries and the modalities of any compensation scheme and, in principle, no challenge to the eligibility conditions as such may be allowed (see Maltzan and Others , cited above, § 77; Epstein and Others v. Belgium (dec.), no. 971 7/05, ECHR 2008 ‑ ... (extracts)).

The Court observes that the compensation scheme established under the GFA concerned claims of forced labourers and other victims of Na zi Germany (see section 2 of the GFA on the purpose of the German Foundation). As those claims date back essentially to the Second World War there could be no question of the Polish State ’ s responsibility for the wrongs committed during that period. It is clear that the Polish State have no obligations of any kind to redress the wrongs inflicted by another State as its citizens were victims and not perpetrators (see Woś v. Poland (dec.), cited above, § 85; Jakowicz v. Poland (dec.), cited above, § 79).

In the context of the present case, the Court underlines that the substantive eligibility conditions under the second scheme were defined in the GFA and had to be applied as such by the partner organisations, including the Polish Foundation. It follows that while processing the applications the Polish Foundation was bound to follow the substantive criteria as specified in the GFA and had no power either to review its reasonableness or to unilaterally modify or extend them. Thus, the Polish Foundation and, a fortiori , the Polish State cannot bear responsibility in cases where an applicant , due to the scope of the substantive eligibility conditions as such, was not included in the group of persons entitled to certain benefits. The Court emphasises that the Polish Foundation exercised only a certain measure of discretion when assessing the facts of individual cases and the evidence submitted by the claimants. Its assessment of those elements was decisive for the outcome of the proceedings before the Foundation. The Court considers that the responsibility of the Polish State may be engaged exclusively as regards those cases where the dis pute concerns the application of the eligibility conditions to the facts of individual cases in the area falling within the Foundation ’ s margin of discretion. Accordingly, in each case it is necessary to determine whether a claimant challenges the eligibility conditions or the assessment of facts and evidence by the Polish Foundation ( Jakowicz v. Poland (dec.), cited above, § 80).

Turning to the circumstances of the present case, the Court notes that the Foundation originally acknowledged the period of the applicant ’ s deportation and forced labour on the farm which came under the 4 th category of eligibility. On appeal, the Foundation further recognised his forced labour in industry which came under the 3 rd category of eligibility (forced labour in the industrial or public sectors). It appears that the applicant was awarded DEM 4, 0 00 on that account. Nonetheless, t he applicant pursued his claim that during his forced labour for the Grün&Bilfinger AG company in Königstein he had been detained in a penal camp, and he should have been considered to come under the 2 nd category of eligibility. The Foundation dismissed that claim since the pertinent camp was not included on the list of “other places of confinement” which had been approved by the German Foundation.

The essence of the applicant ’ s grievance is that the Foundation wrongly considered that his internment in – what in his view was – the penal camp did not entitle him to receive benefits under the 2 nd category of eligibility. However, the Court observes that the Foundation acknowledged his internment and forced labour in the labour camp but informed him that the 2 nd category of eligibility was destined , inter alia , for detainees of the penal camps which were included on the relevant list of camps adopted by the German Foundation (the list of “other places of confinement”). This list was binding on the Polish Foundation which had no power to review, modify or extend it ( mutatis mutandis , Jakowicz v. Poland (dec.), cited above, § 82).

Accordingly, in the Court ’ s view, the thrust of the applicant ’ s complaint was directed against the classification of the camp where he had been detained. That classification, however, formed part of the substantive eligibility criteria. In other words, he attempted to challenge the substantive regulations which defined the scope of beneficiaries of the second compensation scheme. As such his claim could not have been satisfied by the Polish Foundation which had no discretion as to the substantive aspects of the second compensation scheme. In conclusion, the Court considers that the applicant could not claim to have a right to receive further-reaching benefits from the Foundation.

It follows that Article 6 § 1 of the Convention does not apply to the facts of the present case. It is not necessary to examine the Government ’ s objections concerning non-exhaustion of domestic remedies. The application is thus incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nicolas Bratza Registrar              President