FIRST SECTION

DECISION

Application no. 65312/10 Juliusz TARNOWSKI and others against Poland and 3 other applications (see list appended)

The European Court of Human Rights (First Section), sitting on 22 May 2018 as a Committee composed of:

Aleš Pejchal, President, Krzysztof Wojtyczek, Armen Harutyunyan, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above applications lodged on the various dates indicated in the appended table ,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix.

A. The circumstances of the case

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

1. Background

3. On 6 September 1944 the Polish Committee of National Liberation ( Polski Komitet Wyzwolenia Narodowego ) issued the Decree on agrarian reform ( dekret o reformie rolnej ). The decree provided that properties of an agricultural nature, owned or co-owned by natural or legal persons, with an area exceeding 100 hectares (ha) in total or 50 ha of agricultural land, would be allocated for agrarian reform (section 2(1)(e)). It further prescribed that such properties would be transferred to the State Treasury immediately and without any compensation.

4. On 12 December 1944 the Polish Committee of National Liberation issued the Decree on the nationalisation of certain forests ( dekret oprzejęciu niektórych lasów na własność Skarbu Państwa ). The decree provided that forests and forest land, owned or co-owned by natural and legal persons, with an area exceeding 25 ha, would be transferred to the State Treasury.

2. Application no. 65312/00

5. The applicants ’ grandfather was the owner of an estate in Końskie which included a large area of forest land. In 1949 the forest land was taken over by the State Treasury pursuant to the Decree on the nationalisation of certain forests (“the Decree”).

6. On 25 September 2008 the applicants, in their capacity as legal successors of their grandfather, lodged an application with the Minister of the State Treasury seeking indemnification in respect of the nationalised forest land. They relied on section 7 of the Act of 6 July 2001 on the preservation of the national character of the country ’ s strategic natural resources ( ustawa o zachowaniu narodowego charakteru strategicznych zasob ó w naturalnych kraju – “the 2001 Act”).

7. On 22 October 2008 the Minister returned their application, having found that their case should have been examined by an ordinary court.

8. The Minister established that the forest land owned by the applicants ’ predecessor had been transferred to the State Treasury on the basis of the Decree. The transfer of ownership to the State Treasury was effected ex lege , that is, without the need for any decision by administrative authorities. The decree was repealed on 1 October 1990. However, its repeal did not produce retrospective legal effects, and accordingly the State Treasury remained the owner of the nationalised property. The Minister noted that there was no law investing the administrative authorities with jurisdiction as regards claims relating to nationalisation of forests on the basis of the repealed decree.

9. The Minister further noted that the legislatur e had not made section 7 of the 2001 Act sufficiently specific for it to be considered a basis for the institution of administrative proceedings. It did not follow from this provision which administrative authority would be competent to conduct such proceedings and which rules would be applicable to determine the amount of indemnity. Section 7 of the 2001 Act contained solely a general norm establishing a claim by natural persons (or their successors) on account of the loss of ownership of, inter alia , forest lands. This provision contained a norm referring to separate provisions; however those provisions have not yet been enacted. In view of the foregoing, the Minister held that the applicants ’ claim relating to nationalisation of forest land did not have the characteristics of an administrative case, and therefore could not have been decided by an administrative authority.

10. On 25 November 2008 the Min ister upheld his decision of 22 October 2008 in response to the applicants ’ request to reconsider it. Th e applicants lodged an appeal with the administrative court. They alleged that the Minister had wrongly held that their application should have been examined by an ordinary court. They also claimed that the Minister had breached section 7 of the 2001 Act by having erroneously found that the administrative proceedings had not been appropriate for the examination of the applicants ’ application.

11. On 8 May 2009 the Warsaw Regional Administrative Court set aside the Minister ’ s decision. It held that the Minister had erred in finding that an application for indemnity based on section 7 of the 2001 Act should have been examined by ordinary courts, since there was no law investing the courts with jurisdiction in these matters.

12. The applicants and the Minister of the State Treasury lodged cassation appeals. The applicants alleged, inter alia , that the lower court had wrongly interpreted section 7 of the 2001 Act as a declaratory provision. In their view, this provision conferred on them a claim for indemnity against the State which had to be examined in the administrative proceedings. They also alleged a breach of Article 1 of Protocol No. 1 in that they had been deprived of their legitimate expectation to receive indemnity for nationalised forests.

13. On 17 June 2010 the Supreme Administrative Court set aside the lower court ’ s judgment following the Minister ’ s cassation appeal (case no. I OSK 1120/09). It further dismissed the applicants ’ cassation appeal. In consequence, the Minister ’ s decision was held to be correct.

14. The Supreme Administrative Court found that the 2001 Act did not contain substantive legal regulations permitting to establish the competence of administrative authorities to examine applications based on section 7 of the 2001 Act. The scope of this provision was limited to stipulating that the relevant claims would be satisfied in the form of indemnities paid from the State budget and for the remainder it referred to the separate provisions. Section 7 of the 2001 Act did not contain substantive rules regarding determination of those claims and did not specify the authority competent to grant indemnity. In consequence, the character of this provision barred the possibility of examination of the applicants ’ case in the administrative proceedings. Having regard to the above, the Supreme Administrative Court dismissed the applicants ’ arguments to the effect that section 7 of the 2001 had constituted a basis of their right to indemnity.

15. The Supreme Administrative Court further held that the lower court had erred in finding that an ordinary court had no jurisdiction in the case. In doing so, the lower court had disregarded Article 45 § 1 of the Constitution guaranteeing the right to a court. It was well established in the case-law of the highest courts that the notion of a “case” within the meaning of Article 45 of the Constitution had an autonomous meaning and included also cases which were not civil, administrative or criminal. The Supreme Administrative Court further referred to the presumption – resulting from Articles 177 and 77 § 2 of the Constitution – in favour of the jurisdiction of the ordinary courts in all cases, with the exception of cases which were statutorily allocated to the jurisdiction of other courts. In view of the above considerations, the Supreme Administrative Court held that the lower court had erroneously contested the Minister ’ s decision, failing to take account of the said presumption.

16. With regard to the applicants ’ argument based on Article 1 of Protocol No. 1 to the Convention, the Supreme Administrative Court found that the lower court had not closed the possibility for the applicants to seek protection of their interests, since it decided to return their application, and therefore did not make a substantive ruling in the case.

3. Application no. 52793/11

17. The applicants ’ father was the owner of the forest estate “ Dobra Suskie ” and a forest estate in Ślemień. In 1946 the estates were taken over by the State Treasury pursuant to the Decree.

18. On 14 October 2008, relying on section 7 of the 2001 Act, the applicants lodged an application with the Minister of the State Treasury seeking indemnification in respect of the nationalised forest land.

19. On 20 October 2008 the Minister returned their application, having found that their case should have been exa mined by an ordinary court. The reasoning of his decision was the same as in the case regarding the application no. 65312/10 (see paragraph 9 above).

20. The applicants lodged a request to reconsider the decision of 20 October 2008. On 25 November 2008 the Minister upheld his earlier decision. The applicants lodged an appeal with the administrative court. They contested the Minister ’ s finding that their application should have been examined by an ordinary court.

21. On 22 April 2009 the Warsaw Regional Administrative Court set aside the Minister ’ s decision. It noted that the applicants ’ application, based on section 7 of the 2001 Act, had been incorrectly interpreted as a claim concerning the taking away of the forest under the Decree. Having analysed this provision, the court found that the Minister had incorrectly held that the applicants ’ case did not have the characteristics of an administrative case, but of a civil case.

22. The applicants and the Minister lodged cassation appeals.

23. On 17 June 2010 the Supreme Administrative Court set aside the lower court ’ s judgment following the Minister ’ s cassation appeal (case no. I OSK 1119/09). It further dismissed the applicants ’ cassation appeal.

24. The Supreme Administrative Court held that section 7 of the 2001 Act did not contain substantive legal regulations permitting to establish the competence of administrative authorities to examine applications for indemnity, relying on similar arguments to those relied on in the case regarding application no. 65312/10 (see paragraph 14 above).

4. Application no. 68157/10

25. The applicants ’ grandfather was the owner of an estate which included a large area of forest land in Jaszczurowa-Mucharz. In 1945 the forest land was taken over by the State Treasury pursuant to the Decree.

26. On 5 January 2009, relying on section 7 of the 2001 Act, the applicants lodged an application with the Minister of the State Treasury seeking indemnification in respect of the nationalised forest land.

27. On 5 February 2009 the Minister returned their application. The reasoning of his decision was similar to that given in the case regarding application no. 65312/10 (see paragraph 9 above). The applicants lodged a request to reconsider the decision of 5 February 2009. On 18 March 2009 the Minister upheld his earlier decision. The applicants lodged an appeal with the administrative court.

28. On 7 July 2009 the Warsaw Regional Administrative Court set aside the Minister ’ s decision. The Minister lodged a cassation appeal.

29. On 28 July 2010 the Supreme Administrative Court set aside the lower court ’ s judgment (case no. I OSK 1348/09). It relied on similar arguments to those relied on in the case concerning application no. 65312/10 (see paragraph 14 above).

5. Application no. 75846/11

30. The applicants ’ father was the owner of the estate “Ordynacja Zamojska”, which included a large area of forest land. In 1945 the estate was taken over by the State Treasury pursuant to the Decree on agrarian reform.

31. On 20 April 2010 the applicants, relying on section 7 of the 2001 Act, lodged an application with the Minister of the State Treasury seeking indemnification in respect of the nationalised forest land.

32. On 25 May 2010 the Minister returned their application, having found that he did not have competence to examine the application at issue. The applicants lodged a request to reconsider that decision. On 22 June 2010 the Minister upheld his earlier decision. The applicants lodged an appeal with the administrative court.

33. On 29 November 2010 the Warsaw Regional Administrative Court dismissed their appeal. The court found that section 7 of the 2001 Act did not constitute a basis for decision by an administrative authority with regard to satisfying claims referred to in this provision. Section 7 of the 2001 Act did not contain substantive and jurisdiction rules permitting to assert subjective rights in the proceedings before administrative authorities.

34. The court also referred to the presumption in favour of jurisdiction of ordinary courts resulting from Articles 45 § 1 and Article 177 in conjunction with Article 77 § 2 of the Constitution. The court found that an administrative authority could return an application on the ground that it fell within the jurisdiction of an ordinary cou rt not only when it concerned a civil case stricto sensu , but also when a claim concerned a “case” within the meaning of Article 45 § 1 of the Constitution. Accordingly, the court found that since the applicants ’ application for indemnity had features of a case in that constitutional sense, the Minister had correctly held that an ordinary court had jurisdiction.

35. The applicants lodged a cassation appeal. They alleged, inter alia , that the court had erroneously interpreted section 7 of the 2001 Act and breached their legitimate expectation under Article 1 of Protocol No. 1 to the Convention of receiving indemnity.

36. On 4 October 2011 the Supreme Administrative Court dismissed their cassation appeal (case no. I OSK 245/11). It relied on similar arguments to those relied on in the case concerning application no. 65312/10 (see paragraph 14 above).

37. With regard to the applicants ’ argument based on Article 1 of Protocol No. 1, the Supreme Administrative Court noted that the administrative proceedings were not the only way of seeking protection of their interests, since the applicants could have instituted proceedings before the ordinary courts.

B. Relevant domestic law and practice

1. Constitutional provisions

38. The relevant provisions of the Constitution read as follows:

Article 45 § 1

“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”

Article 77 § 2

“Statutes shall not bar the recourse by any person to the courts in pursuit of claims alleging infringement of freedoms or rights.”

Article 177

“The ordinary courts shall implement the administration of justice concerning all matters save for those statutorily reserved for other courts.”

2. Act of 6 July 2001 on the preservation of the national character of the country ’ s strategic natural resources (“the 2001 Act”)

39. The 2001 Act originated from a civic bi ll submitted to Parliament on 4 October 1999 by a group of 129,000 citizen s. The Sejm passed it on 6 July 2001. It entered into force on 11 September 2001 and comprises eight sections.

40. The relevant part of section 1 provides:

“The country ’ s strategic natural resources include:

...

(3) State forests,

....”

40. Section 7 of the 2001 Act provides:

“Claims of natural persons, former owners or their successors, in respect of loss of ownership of the resources listed in section 1, shall be satisfied in the form of indemnities ( rekompensaty ) paid from the State budget on the basis of separate provisions.”

3. The Supreme Administrative Court ’ s case-law

41. In a number of cases, the interested persons applied to the Minister of the State Treasury to be indemnified in respect of the loss of forests, relying on section 7 of the 2001 Act. The Minister refused to consider their applications and those decisions were subsequently challenged before the administrative courts.

42. The Supreme Administrative Court held, in a number of judgments, that claims under section 7 of the 2001 Act could not be pursued in administrative proceedings. It held, inter alia , that no subjective right, capable of being pursued in administrative proceedings, could be derived from section 7 of the 2001 Act. Furthermore, the court held that section 7 of the 2001 Act was a declaratory provision and did not establish a legal relationship (cf. judgments of 6 May 2010, case no. I OSK 935/09; of 6 August 2010, case no. I OSK 1377/09; o f 17 March 2011, case no. I OSK 718/10).

COMPLAINTS

43. The applicants complained under Article 6 § 1 of the Convention that the flawed decisions of the Supreme Administrative Court and the ensuing return of their applications for indemnity had deprived them of their right to have their case examined by a court. They also alleged that their right to a fair trial had been violated in the proceedings before the administrative courts.

44. The applicants complained under Article 1 of Protocol No. 1 that the authorities had refused to entertain their application for indemnity, while the domestic law had conferred on them the right to it.

THE LAW

A. Joinder of the applications

45. Given their similar factual and legal background, the Court decides that the present applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

B. Complaint under Article 6 § 1

46. The applicants complained under Article 6 § 1 of the Convention that the flawed decisions of the Supreme Administrative Court and the ensuing return of their applications for indemnity had deprived them of their right to have their case examined by a court. They als o alleged that their right to a fair trial had been violated in the proceedings before the administrative courts. Article 6 § 1 reads, in so far as relevant:

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

47. The applicants argued that Article 6 § 1 under its civil head was applicable to the proceedings in issue. They maintained that section 7 of the 2001 Act had conferred on them the right to indemnity for nationalised forests and that that right was a “civil right” for the purposes of Article 6 § 1.

48. The applicants further complained that the authorities had refused to examine their applications for indemnity in the administrative proceedings as a result of an erroneous interpretation of section 7 of the 2001 Act. In the applicants ’ view, that incorrect interpretation would result in their case never being examined on the merits. They argued that the ordinary (civil) courts would be barred from hearing an administrative case in a situation where an administrative authority had erroneously held that it did not have jurisdiction in a case. This would amount to a breach of their right of access to a court.

49. The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether that right is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, for example, Károly Nagy v. Hungary [GC], no. 56665/09, §§ 60-63, ECHR 2017 for the restatement of general principles).

50. The Court must establish whether the applicants had a “right” which could, at least on arguable grounds, be said to be recognised under domestic law. In assessing this question, the Court will take as a starting point the provisions of the domestic law and their interpretation by the domestic courts.

51. The applicants submitted that they had had a right to indemnity for nationalised forests under section 7 of the 2001 Act which, in their view, was sufficiently recognised as to engage Article 6 of the Convention. They also submitted that their claims for indemnity were to be decided by the administrative authorities.

52. However, the Supreme Administrative Court, having analysed the case from the angle of the jurisdiction of the administrative authorities, consistently rejected the applicants ’ assertion to the effect that section 7 of the 2001 Act constituted a basis for their right to indemnity. It noted that the scope of section 7 was limited to stipulating that the relevant claims would be satisfied in the form of indemnities paid from the State budget and, for the remainder, referred to the separate provisions which have not been enacted. The Supreme Administrative Court further found that section 7 of the 2001 Act did not contain substantive rules regarding determination of the claims for indemnity and did not specify the authority competent to grant it (see paragraph 14 above). In consequence, the claims of this kind could not have been examined in the administrative proceedings, but were to be examined by ordinary (civil) courts in accordance with the presumption in favour of the latter ’ s jurisdiction (see paragraphs 15 and 34 above).

53. The Court finds that the applicants ’ assertion that section 7 of the 2001 Act had conferred on them a claim for indemnity against the State was consistently refuted by the Supreme Administrative Court. In the present case, the Court cannot discern any reasons to differ from the conclusions reached by the Supreme Administrative Court or to consider them arbitrary or manifestly unreasonable.

54. Consequently, the Court finds that the applicants had no “right” which could be said, at least on arguable grounds, to be recognised under domestic law. It follows that Article 6 does not apply to the proceedings instituted by the applicants.

55. Accordingly, the complaints under Article 6 § 1 are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

C. Complaint under Article 1 of Protocol No. 1

56. The applicants complained under Article 1 of Protocol No. 1 that the authorities had refused to entertain their application for indemnity, while the domestic law had conferred on them the right to it. This provision reads, in so far as relevant:

“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...”

57. The applicants claimed that their right to indemnity for loss of forest lands, created by section 7 of the 2001 Act, could be considered “possessions” within the meaning of Article 1 of Protocol No. 1. In the applicants ’ view, the authorities had been under an obligation to remove all legal and practical obstacles to the realisation of the right to indemnity conferred on the applicants.

58. The Court reiterates the principles established under Article 1 of Protocol No. 1 with regard to restitution cases ( Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 ‑ IX). It observes that the applicants ’ complaint did not concern the nationalisation of their legal predecessors ’ property effected between 1945 and 1949, and thus before the entry into force of Protocol No. 1 with regard to Poland on 10 October 1994. The Court ’ s competence to deal with this application is therefore not ruled out ratione temporis (see, for example, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII).

59. The principal question is that of the applicability of Article 1 of Protocol No. 1, namely whether there was a sufficient basis in domestic law, as interpreted by the domestic courts, for the applicants ’ claim to qualify as an “asset” for the purposes of this provision. The Court refers to its earlier finding with regard to the complaint under Article 6 § 1 that the applicants ’ assertion that section 7 of the 2001 Act had conferred on them a claim for indemnity against the State was consistently rejected by the Supreme Administrative Court. The constant view of the Supreme Administrative Court indicates that the applicants ’ claims for indemnity were unfounded in terms of domestic law.

60. There are no grounds on which the Court can reach a different conclusion as to the lack of basis for the applicants ’ claims in domestic law. Furthermore, seeing that there was a dispute as to the interpretation of section 7 of the 2001 Act, and that the applicants ’ arguments were rejected, the Court finds that the applicants cannot be regarded as having had a legitimate expectation, let alone any rights, with regard to the claims submitted by them in the domestic proceedings (see Kopecký , § 50, cited above).

61. The Court finds that the applicants have not shown that they had claims that were sufficiently established to be enforceable, and they therefore cannot argue that they had “possessions” within the meaning of Article 1 of Protocol No. 1 (see Zamoyski-Brisson and Others v. Poland (dec.), no. 19875/13, 12 September 2017 a leading decision for a similar conclusion in respect of claims under section 7 of the 2001 Act asserted in civil proceedings).

62. It follows that the applicants ’ complaint under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 14 June 2018 .

             Renata Degener AleÅ¡ Pejchal              Deputy Registrar President

APPENDIX

No.

Application no.

Lodged on

Applicant

Date of birth

Place of residence

Represented by

65312/10

26/10/2010

Juliusz TARNOWSKI

21/09/1929

Cracow

Marek TARNOWSKI

26/01/1932

Cracow; the applicant died on 15/03/2013, his wife wishes to pursue the application;

Aleksander TARNOWSKI

17/08/1934

Sopot

P. BOROŃ

52793/11

14/10/2010

W Å‚ adys Å‚ aw TARNOWSKI

01/08/1931

Paris

Anna Maria VEUTHEY

23/04/1934

Sion; the applicant died on 5/07/2013, her children wish to pursue the application;

Adam Zygmunt TARNOWSKI

9/09/1937

Kappara San Gwann, Malta

R ó ż a Maria PUNCH

23/08/1940

Cork, Ireland

Stefan Pawe Å‚ TARNOWSKI

18/03/1946

Toulouse

Rafa Å‚ Zdzis Å‚ aw TARNOWSKI

09/09/1937

Ennordes, France

P. BOROŃ

68157/10

15/11/2010

Maria THETSCHEL-ZGUD

07/02/1943

Cracow

Jerzy CYBULSKI

13/12/1940

Beaconsfield, Canada

P. BOROŃ

75846/11

30/11/2011

Maria PONIŃSKA

30/01/1942

Warsaw

El ż bieta DASZEWSKA

28/11/1939

Warsaw

Gabriela BOGUS Ł AWSKA

12/11/1945

Warsaw

Agnieszka RO Å» NOWSKA

06/09/1960

Warsaw

Marcin ZAMOYSKI

30/10/1947

Zamość

P. BOROŃ