SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42049/98 by  ZWIĄZEK NAUCZYCIELSTWA POLSKIEGO against Poland

The European Court of Human Rights (Second Section), sitting on 9 December 2003 as a Chamber composed of:

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mr L. Garlicki , judges ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 10 December 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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, ZwiÄ…zek Nauczycielstwa Polskiego (the Association of Polish Teachers ), is an association represented by Mr SÅ‚awomir Broniarz . The respondent Government are represented by Mr K. Drzewicki , of the 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.

In 1964 the administrative authorities handed over to the applicant association the management and use of a property, which had been taken over by the State Treasury from a religious association in 1962. The decision concerning that transfer stipulated that, on termination of the use of the property, the applicant association would be entitled to recuperate the outlays incurred in connection with any construction work carried out to the buildings, less the normal costs of upkeep.

On 20 October1992 the Warsaw Property Commission, set up pursuant to the Law on Relations between the State and the Catholic Church in Poland, returned the property to the religious association. The Commission ordered the latter to reimburse the applicant association its outlay of 420,353,658 old zlotys (42,035 new zlotys). That amount was based on a calculation prepared by experts. The applicant association challenged that amount and proposed its own calculation. However, the Property Commission declared its lack of competence as to further claims. Its decision contained a clause to the effect that that decision did not hinder the applicant’s right to make further claims relating to the 1964 decision in accordance with the general provisions of law.

Subsequently, the applicant association filed with the Przemyśl Regional Court ( sąd wojewódzki ) an action in which it claimed from the State Treasury the reimbursement of outstanding outlays, relying on the text of the 1964 decision, in which the administrative authorities had established the applicant’s right to those outlays.

On 15 December 1995 the court awarded the applicant association the amount of 546,133.02 new zlotys. Both parties to the proceedings appealed.

On 13 June 1996 the Rzeszów Court of Appeal ( sąd apelacyjny ) decided to submit to the Supreme Court the question whether the Law on the Relations between the State and the Catholic Church in Poland excluded the possibility to raise claims concerning the use of a property returned to its previous owner on the strength of a decision of a property commission.

On 27 June 1996 the Supreme Court adopted a resolution in which it answered in the positive the Court of Appeal’s question. The Supreme Court found that proceedings before property commissions involve the participation of all parties concerned and the decisions of such commissions concern all claims in respect of the property. Further, the clause in the Commission’s decision at issue relating to the possibility to raise further claims could not be interpreted as an undertaking by the State Treasury to satisfy such claims. The Supreme Court pointed out that, after the Commission’s decision, the State Treasury ceased to own the property.

On 5 December 1996 the Court of Appeal, having regard to the Supreme Court’s resolution, quashed the judgment of the Regional Court and rejected the applicant association’s action. Both parties to the proceedings appealed.

On 20 June 1997 the Supreme Court dismissed both cassation appeals. It noted that the applicant association’s cassation appeal was in fact directed against the resolution of 27 June 1996, whereas that resolution was binding on all the courts dealing with the case.

B. Relevant domestic law

The Law of 17 May 1989 on Relations between the State and the Catholic Church in Poland provides in so far as relevant:

“Section 61. 1. At the request of church legal persons, proceedings shall be instituted (hereinafter called “regulation proceedings”), in regard to the restitution of the ownership of nationalised properties ...

Section 62. 1. The regulation proceedings are conducted by the Property Commission ... composed of representatives designated in equal numbers by the Office for Religions ( Urząd do Spraw Wyznań ) and the Secretariat for the Conference of the Episcopate of Poland ( Sekretariat Konferencji Episkopatu Polski ).

2. Apart from the applicant, all State and church entities concerned are participants in the regulation proceedings. ...

5. The Commission examines cases in adjudicating groups, composed of members designated by the Office for Religions and the Secretariat for the Conference of the Episcopate of Poland, two members from each, as well as representatives of organs superior to the participants to the proceedings, one of each. ...

Section 63. 1. The regulation may consist of:

1) the restitution of the ownership of properties ... to church legal persons,

2) the grant of an alternative property ...

3) the award of compensation ...”

COMPLAINT

The applicant association complained under Articles 6 § 1 and 13 of the Convention that it could not pursue its claims before the civil courts.

THE LAW

The applicant association complained about the alleged lack of access to a court, relying on Articles 6 § 1 and 13 of the Convention, the relevant parts of which provide as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The applicant’s victim status

The Government were of the view that the applicant association could no longer claim to be a victim of a violation of its rights guaranteed by Article 6 § 1 of the Convention, because it had been reimbursed its outlays by the Property Commission. They noted that the reimbursement had been granted despite the fact that the Law on Relations between the State and the Catholic Church in Poland did not provide for bilateral settlements between the original owner of the property and its user.

They considered that, by accepting the decision of the Commission, the applicant had waived its right to raise any further claims against the current owner of the property at issue. It filed an action against the State Treasury instead, although the latter had ceased to own that property.

The applicant disagreed, submitting that the Property Commission had awarded it only part of its outlays, whereas it could not make any further claims.

The Court considers it unnecessary to examine whether the Government’s contention that the applicant waived its right to raise further claims against the original owner, the religious association, is true because, in any event, the applicant complained about the inability to make claims against the State Treasury.

The Court is not persuaded that, after having been awarded the reimbursement of outlays by the Property Commission, the applicant association received adequate redress for the alleged violation of the Convention. The Court recalls that the applicant’s complaint relates to the fact that it was prevented from pursuing its claims in respect of outstanding outlays.

Accordingly, the Court rejects the Government’s argument and finds that the applicant association may still claim to be a victim of a violation of Article 6 § 1 of the Convention in respect of its access to a court.

B. Exhaustion of domestic remedies

The Government submitted that the applicant association had not exhausted all available domestic remedies. In particular, it did not file an action against the current owner of the property. The Government made reference to the provisions of the Civil Code, on which the applicant could base its claim.

The applicant noted that the Law on Relations between the State and the Catholic Church in Poland did not provide for an appeal against decisions of the Property Commission. Nor did it provide for bilateral settlements between the original owner of the property and its user. The applicant association therefore considered that the only way of making its claims was by means of a civil action against the State Treasury.

The Court agrees with the applicant that, given the lack of any contractual bonds between it and religious association, the applicant could not be expected to direct its claims against the original owner. In any event, the applicant’s complaint concerns the allegation of a denial of a fair hearing in the applicant’s case against the State Treasury and therefore the remedy referred to by the Government is of no relevance to the present application.

The Court thus rejects the Government’s objection and finds that the applicant association exhausted all effective domestic remedies, within the meaning of Article 35 § 1 of the Convention.

C. Substantive requirements of the admissibility of the application

The Government were of the opinion that the applicant association had been able to enjoy all the guarantees of a fair hearing. Its case was examined by courts at three judicial levels and it could participate in the proceedings on an equal footing with the opposing party. The Government agreed that the applicant’s right of access to a court had been restricted.

They pointed out, however, that the ruling of the Supreme Court had prevented the applicant from filing an action only against the State Treasury. The Government noted that the law on the basis of which the applicant had gained rights to the property in question was no longer in force. They stated that the limitation of the State Treasury’s liability in cases similar to that of the applicant had the legitimate aim of protecting the State from claims relating to its actions taken decades before and under an entirely different legal system.

The applicant association observed that, contrary to the Government’s statement, its case had not been examined by courts at three judicial levels, since only the first-instance court had examined the merits of the case. The applicant considered that the very essence of its right of access to a court had been impaired.

It recalled that the Supreme Court had ruled out the possibility of making any claims “also between the user and the State Treasury” and pointed out that the word “also” made it clear that any court action was excluded, regardless of whether it was directed against the State Treasury or the current owner of the property concerned.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President