Resolution CM/ResDH(2013)67 Wo Å› , Kad Å‚ uczka, Krosta, Kostka, Belka, Czekie Å„ and Szal against Poland Execution of the judgment of the European Court of Human Rights

(Application No. 22860/02, judgment of 08/06/2006, final on 08/09/2006

Application No. 31438/06, judgment of 02/02/2010, final on 02/05/2010

Application No. 36137/04, judgment of 02/02/2010, final on 02/05/2010

Application No. 29334/06, judgment of 16/02/2010, final on 16/05/2010

Application No. 20870/04, judgment of 18/05/2010, final on 18/08/2010

Application No. 25168/05, judgment of 18/05/2010, final on 18/08/2010

Application No. 41285/02, judgment of 18/05/2010, final on 18/08/2010)

(Adopted by the Committee of Ministers on 30 April 2013 at the 1169th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in the above cases and to the violations established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)188E );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

A ction report [1]

Information about the measures to comply with the judgments in the

WoÅ› against Poland group of cases

Case description

WoÅ›, Application No. 22860/02, judgment of 08/06/2006, final on 08/09/2006

Kadłuczka, Application No. 31438/06, judgment of 02/02/2010, final on 02/05/2010

Krosta, Application No. 36137/04, judgment of 02/02/2010, final on 02/05/2010

Kostka, Application No. 29334/06, judgment of 16/02/2010, final on 16/05/2010

Belka, Application No. 20870/04, judgment of 18/05/2010, final on 18/08/2010

Czekień, Application No. 25168/05, judgment of 18/05/2010, final on 18/08/2010

Szal, Application No. 41285/02, judgment of 18/05/2010, final on 18/08/2010

These cases concern a violation of the applicants ’ right of access to a court (violation of Article 6§1) due to the lack of judicial review of decisions of the Polish-German Reconciliation Foundation made on the claims to compensate victims of Nazi persecution, slave and forced labour, under two compensation schemes, established in 1991 and 2000 respectively.

The first compensation scheme was set up under an agreement of 16/10/1991 between Poland and the Federal Republic of Germany. Under the scheme, in November 1991, the Polish Government set up the Foundation (the Polish-German Reconciliation Foundation), the remit of which was to compensate victims of Nazi persecution from funds paid by the Government of the Federal Republic of Germany. The second compensation scheme was established by a joint statement of 17/07/2000 between a number of countries, including Poland, the Federal Republic of Germany, the United States and Israel with the aim to compensate victims of slave and forced labour. The Polish-German Reconciliation Foundation distributed compensation payments to slave and forced labourers.

In this group of cases the applicants were trying to challenge decisions taken by the Foundation`s bodies. The Supreme Administrative Court ruled that the administrative courts did not have jurisdiction to review such decisions. Moreover, under the Supreme Court ’ s case law, as it stood at the material time, the right to awards by the Foundation was not a civil law matter and the domestic courts of general jurisdiction were not competent to deal with entitlement claims either.

The European Court held that the Foundation ’ s actions, in respect of both compensation schemes, engaged the responsibility of the Polish State and that the right to apply to the Foundation for compensation was a civil right for the purposes of Article 6§1 of the Convention. However, it held that the Foundation ’ s decision ‑ making bodies, the Verification Commission and Appeal Verification Commission, could not be regarded as tribunals for purposes of Article 6§1 in view, in particular, of the fact that their members were appointed and dismissed by the Foundation ’ s Management Board and Supervisory Board respectively. In consequence, by ruling out all judicial review of these boards ’ decisions in individual cases, the domestic courts had left the applicants with no possibility of having them reviewed by a tribunal, as required by Article 6§1 of the Convention.

The European Court awarded applicants with just satisfaction in respect of non-material damage (no just satisfaction granted in cases Krosta and Kadłuczka).

The European Court confirmed that prior to 27/06/2007 (resolution of the Supreme Court, see below in description of general measures) the availability of judicial review in respect of the Foundation ’ s decisions had not been established.

After the Supreme Court ’ s resolution of 27/06/2007, the applicants were able to challenge decisions of the Polish-German Reconciliation Foundation before courts of general competence. The application of the resolution enabling the applicants to apply for judicial review of the Foundation ’ s decisions before courts of general competence was confirmed in practice, in the case initiated by the public prosecutor on behalf of one of the applicants (Walentyna Belka), challenging a refusal to award her financial compensation under the second compensation scheme (see general measures below for more detail).

In these circumstances, no other individual measure appears necessary.

The Supreme Court, in its resolution of 27/06/2007, answering a question on point of law from the Polish Ombudsman in the Case No. III CZP 152/06, held that the courts of general competence have jurisdiction in the case where a claimant – due to an unfavourable decision by the Polish-German Reconciliation Foundation – was seeking a payment from the Foundation in respect of Nazi persecution. The Supreme Court revisited the existing practice and held that claims against the Polish Foundation in respect of Nazi persecution were civil claims in formal sense.

This position was further confirmed by the Polish Constitutional Tribunal, in its decision of 14 November 2007. The Constitutional Tribunal, ruling on inadmissibility of the application filed by one of the applicants – Mr StanisÅ‚aw Kostka, found that he had not obtained a “final decision” within the meaning of Article 79 of the Constitution, since he had mistakenly seized the administrative courts and not the courts of general competence to pursue his appeal against a decision of the “Polish ‑ German Reconciliation” Foundation.

The financial assistance from funds contributed by the Government of the Federal Republic of Germany on the basis of the agreement of 16 October 1991 were awarded until June 2002. By Resolution No. 11/2002 of 7 June 2002, the Supervisory Board of the Foundation concluded payments under the first compensation scheme, the funds from the German Government having been exhausted. As of 30 September 2006, the so ‑ called second compensation scheme, established under joint statement of 17 July 2000, ceased its operation.

Woś judgment was translated and published on the website of the Ministry of Justice, it was also disseminated to the presidents of the courts of appeal. It was also published in the Bulletin published by the Warsaw Information Office of the Council of Europe (no. 2006/III) with commentary “The binding force of the judgment in the Woś case for domestic courts”.

In these circumstances, no other general measure appears necessary .

The government considers that further individual measures are not necessary in the present case and that the general measures adopted, in particular legislative changes, publication and dissemination of the judgment of the European Court of Human Rights will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention in respect to the breach of Article 6 § 1 of the Convention.

[1] Information submitted by the Polish authorities on 20 February 2013.