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TOMCZAK v. POLAND

Doc ref: 41031/98 • ECHR ID: 001-4625

Document date: May 25, 1999

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TOMCZAK v. POLAND

Doc ref: 41031/98 • ECHR ID: 001-4625

Document date: May 25, 1999

Cited paragraphs only

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41031/98

by Janina TOMCZAK

against Poland

The European Court of Human Rights ( Fourth Section) sitting on 25 May 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr A. Pastor Ridruejo ,

Mr L. Caflisch ,

Mr J. Makarczyk ,

Mr V. Butkevych ,

Mr J. Hedigan ,

Mrs S. Botoucharova , Judges ,

with Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 June 1997 by Janina TOMCZAK  against Poland and registered on 29 April 1998 under file no. 41031/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish national, born in 1919 and living in Skarboszewo .

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

A. Particular circumstances of the case

In 1959 the municipality, by way of an administrative decision, nationalised the farm belonging to the applicant’s father. On an unspecified later date the applicant’s father died and she obtained a judicial decision confirming that she had inherited his property.

In 1992 the Minister of Agriculture refused to allow the applicant's motion to have this decision annulled, considering that it was in conformity with the nationalisation laws applicable at the time when the decision had been issued.

The applicant lodged an appeal with the Supreme Administrative Court.

On 12 October 1992 the Supreme Administrative Court set the Minister’s decision aside.

On 30 April 1993 the Konin Regional Office declared the 1959 decision null and void, finding that it was in breach of substantive law as regards the criteria for nationalisation of agricultural property.

In October 1993 the farm was restored to the applicant.

Subsequently the applicant lodged a civil action against the State Treasury with the Konin Regional Court, claiming compensation for lost profits resulting from the fact that from 1959 to 1993 she could not use the farm and, consequently, did not realise profits therefrom.

On 22 July 1996 the court dismissed the applicant’s action. It had regard to Article 160 § 1 of the Code of Administrative Procedure, which provided for the liability of the State Treasury for actual damage caused by an administrative decision annulled on the ground of unlawfulness. The court observed that under the case-law of the Supreme Court this provision constituted the exclusive legal basis of State liability for damages caused by an administrative decision which was annulled on one of the grounds provided for in Article 156 of the Code. Thus, the provisions of Article 361 § 2 of the Civil Code, which provided for full compensation for damage, including actual damage and lost profits, were not applicable to the applicant’s case. Consequently, having regard to the fact that the damage claimed by the applicant was clearly covered by the notion of lost profits, the applicant’s claim had to be dismissed.

The applicant lodged an appeal against this decision, claiming that the judgment under appeal was in breach of substantive civil law in that the court had failed to apply Article 361 § 1 of the Civil Code.

On 24 October 1996 the Pozna ń Court of Appeal dismissed the applicant’s appeal. The court reiterated the analysis of the legal basis of the State Treasury’s liability for damage caused by an administrative decision which was subsequently quashed. The court further observed that it had been the intention of the legislator to limit the scope of the liability of the State to actual damage and that the lower court, when dismissing the applicant’s claim for lost profits, had correctly applied the relevant provisions of the Code of Administrative Procedure.

The applicant lodged a cassation appeal against this judgment, claiming that the Court of Appeal had wrongly interpreted Article 160 of the Code of Administrative Procedure.

On 6 March 1997 the Supreme Court dismissed the applicant’s cassation in appeal. It observed that under Article 160 § 1 of the Code of Administrative procedure, a person who suffered damage as a result of an annulled administrative decision could claim compensation for actual damage in administrative proceedings. It was only after a final administrative decision in this respect was given that a party could lodge an action with a court. Where such an action had been lodged before the administrative decision was given, the civil court should have rejected it on those grounds. In the present case, the lower courts had accepted that the applicant pursued her compensation claim in two separate fora , civil and administrative. It was not in dispute that the administrative proceedings were pending. As to the civil proceedings, the lower court had correctly concluded that, on account of Article 160 of the Code of Administrative Procedure as interpreted by the Supreme Court in its resolution of 26 January 1989, the applicant was not entitled to compensation for lost profits. Therefore, despite the fact that the courts could have rejected the applicant’s action for failure to exhaust the administrative procedure provided for in this provision for pursuing her compensation claim, the judgments under examination were in compliance with the law.

The Supreme Court finally held that the absence of an administrative decision concerning the applicant’s compensation claim made it impossible for a civil court to carry out its task under Article 160 of the Code of Administrative Procedure, i.e. to determine whether the compensation awarded to the applicant constituted a suitable redress for the damage which the nationalisation might have caused her.

The administrative proceedings, in which the applicant claimed compensation for damage caused by the 1959 nationalisation decision in that the settlement on the farm had been demolished, are pending.

B. Relevant domestic law

Article 155 of the Code of Administrative Procedure permits the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest, if this is not prohibited by specific legal provisions. In particular, pursuant to Article 156, a final administrative decision is subject to annulment if it has been issued by an authority which had no jurisdiction, or if it is without a legal basis or contrary to the applicable laws.

Article 160 of the Code of Administrative Procedure enables persons who have sustained damage as a result of a final administrative decision which was declared null and void pursuant, inter alia , to Article 156, or as a result of such decision having been annulled, to submit a compensation claim to the administrative authority which annulled this decision, and this within three years from the date on which the decision on annulment became final. An administrative decision in respect of the compensation claim can be appealed against in a civil court.

Under Article 361 of the Book Three of the Civil Code - Obligations, a person is liable for the normal consequences of his or her act, or failure to act, which caused damage to others. Within such limits, compensation for damage suffered comprises, if applicable laws do not provide otherwise, actual damage and lost profits.

COMPLAINT

The applicant complains, invoking Article 1 of Protocol No. 1 to the Convention, that the refusal to allow her compensation claim for profits lost as a result of the 1959 nationalisation, amounts to a breach of this provision of the Convention.

THE LAW

The applicant complains, invoking Article 1 of Protocol No. 1 to the Convention that the refusal to award her compensation for lost profits from the State Treasury amounts to a breach of this provision of the Convention.

Article 1 reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court recalls that an interference with peaceful enjoyment of possessions must strike a “fair balance” between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights (see, among other authorities, the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 26, § 69). Compensation terms under the relevant legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it does not impose a disproportionate burden on the applicant. That Article does not, however, guarantee a right to full compensation in all circumstances, since legitimate objectives of “public interest” may call for less than reimbursement of the full market value (see the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, pp. 34-35, §§ 70-71; the Papachelas v. Greece judgment of 25 March 1999, § 49, to be published in the Court’s Reports of Decisions and Judgments ).

In the present case the applicant alleges an interference with her property in that from 1959 until October 1993 the applicant’s predecessor in title and, later, the applicant, could not use her farm as a result of a nationalisation decision which was declared null and void on 30 April 1993. Poland ratified Protocol No. 1 to the Convention on 10 October 1994. Therefore the Court is not competent ratione temporis to examine the compatibility of this interference with Article 1 and, in any event, the applicant does not complain about the nationalisation as such. However, under domestic law the applicant was clearly entitled to claim compensation for damage caused by the administrative decision nationalising her father’s property. The national court gave a final judicial decision in this respect on 6 March 1997, i.e. after the ratification of Protocol No. 1 by Poland.  Consequently, the Court is competent ratione temporis to examine the applicant’s complaints relating to the outcome of these proceedings, insofar as the applicant argues that it amounted to a breach of Article 1 of Protocol No. 1.

However, the Court is not required to decide whether or not the facts submitted by the applicant in support of her complaint disclose any appearance of a violation of the Convention as Article 35 of the Convention provides that the Court "may only deal with a matter after all domestic remedies have been exhausted".

The Court observes that in the present case the applicant had at her disposal, in order to claim compensation, a special procedure provided for in Article 160 of the Code of Administrative Procedure. This provision enables persons who have sustained damage as a result of an annulled final administrative decision, to submit a compensation claim to the administrative authority, which quashed this decision. An administrative decision in respect of such compensation claim can be appealed against in a civil court.

The applicant instituted proceedings before a civil court claiming compensation for lost profits. She also instituted administrative proceedings in which she claimed compensation for buildings which had been located on the plot in 1959 and which had later been destroyed. The applicant has not shown that a final administrative decision in this respect has been given. The Court also observes that after an administrative decision in these proceedings is given, the applicant retains the possibility of further pursuing her compensation claim in respect of the actual damage suffered before a civil court by lodging an appeal against this decision. The Court thus observes that no final decision of national authorities has been given, which would establish the liability of the State Treasury in respect of the damage that the nationalisation decision could have caused, fixing the sum of compensation to be paid to the applicant.

The Court considers that in the absence of such a decision, it is not possible to assess whether, in the light of the circumstances of the case, the compensation for damage allegedly sustained bears a reasonable relation to the amount of this damage. Consequently, it is impossible at this stage to assess the compatibility of the domestic decisions complained of with the requirements laid down in Article 1 of Protocol No. 1.

It follows that the application must be rejected for non-exhaustion of domestic remedies under Article 35 § 4 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President

© European Union, https://eur-lex.europa.eu, 1998 - 2025

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