Interim Resolution ResDH(2005)58

concerning the judgment of the European Court of Human Rights of 22 June 2004 (Grand Chamber) in the case of Broniowski against P oland

(Adopted by the Committee of Ministers on 5 July 2005 at the 933rd meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms as amended by P rotocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights (“the Court”) of 22 June 2004 in the case of Broniowski against P oland transmitted on the same date to the Committee of Ministers in accordance with Article 46 of the Convention;

Recalling that the case originated in an application (No. 31443/96) against P oland , lodged with the European Commission of Human Rights on 12 March 1996 under former Article 25 of the Co n vention by Mr Jerzy Broniowski , a P olish national, and that the Court, seised of the case under Article 5, paragraph 2, of P rotocol No. 11, declared admissible the complaint concerning the authorities ' failure to implement the applicant ' s entitlement to compensation for property abandoned in the territories beyond the Bug River as a result of boundary changes following the Second World War;

Noting that the Court, referring to the Committee of Ministers ' Resolution of 12 May 2004 on judgments revealing an underlying systemic problem (Res(2004)3) and to the Recommendation of the same date on the improvement of domestic remedies (Rec(2004)6), decided to indicate the measures that the P olish State should take, under the supervision of the Committee of Ministers and in accordance with the subsidiary character of the Convention, so as to avoid being seised of a large number of similar cases;

Whereas in its judgment of 22 June 2004 the Court held unanimously, inter alia :

- that there had been a violation of Article 1 of P rotocol No. 1 to the Convention;

- that this violation had originated in a systemic problem connected with the dysfunction of domestic legislation and practice caused by the absence of an effective mechanism to implement the “right to credit” of Bug River claimants;

- that the respondent state must, through appropriate legal measures and administrative practices, secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu, in accordance with the principles of protection of property rights provided by Article 1 of P rotocol No. 1;

- that, as regards the financial award to the applicant for any pecuniary or non-pecuniary damage resulting from the violation found in the present case, the question of the application of Article 41 was not ready for decision and accordingly reserved and postponed for a later stage;

- that the respondent state was to pay the applicant, within three months, 12,000 euros in respect of costs and expenses incurred up to the present stage of the proceedings before the Court, less 2,409 euros received by way of legal aid from the Council of Europe to be converted into the currency of the respondent state at the rate applicable on the date of payment, and that simple interest at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points would be payable on the above amount from the expiry of the above-mentioned three months until settlement;

Recalling that on 6 July 2004 the Court decided that all similar applications (216 at present) – including future applications - should be adjourned pending the outcome of the leading case and the adoption of the measures to be taken at national level;

Stressing the obligation of every state, under Article 46, paragraph 1, of the Convention, to abide by the judgments of the Court;

Recalling that High Contracting P arties are required rapidly to take the necessary measures to this end, inter alia by preventing new violations of the Convention similar to those found in the Court ' s judgments;

Recalling that the adoption of such measures is particularly pressing in cases where a judgment which points to structural or general deficiencies in national law or practice has been delivered, and a large number of applications to the Court concerning the same problem are pending or likely to be lodged;

Drawing attention in this connection to the Committee ' s Recommendations and Declaration of 12 May 2004 aimed at ensuring the long-term effectiveness of the European Court of Human Rights and improving the execution of its judgments (see, in particular, Res(2004)3 and Rec(2004)6, cited above);

Stressing that the need to adopt the necessary measures rapidly in the present case is of particular concern in view of the fact that persons concerned by the situation impugned by the Court are unable to obtain redress either through domestic remedies or from the Court itself, as the latter has decided to adjourn the examination of similar complaints pending the solution of the underlying problem in P oland ;

Having invited P oland to inform it of the measures adopted or being taken in consequence of the judgment in this case;

Having examined the information provided so far by the P olish authorities concerning the measures adopted or planned to abide by the judgment (as it appears in the Appendix to this resolution);

Having satisfied itself that on 9 September 2004, within the time-limit set, the government of the respondent state paid the a p plicant the sum provided for in the judgment of 22 June 2004 in respect of costs and expenses;

Welcoming the fact that on 15 December 2004 the P olish Constitutional Court, basing itself in particular on the Court ' s judgment, declared several provisions of the law of December 2003 contrary to the P olish Constitution with the result that claimants in the applicant ' s situation (those who had been awarded partial compensation) will no longer meet any legal obstacles to obtain at least a proportion of their entitlement on an equal footing with the remaining Bug River claimants;

Noting that a new draft law has been submitted to the P olish P arliament aiming at improving the conditions for compensation of all Bug River claimants so as to ensure full compliance with the Convention and the Court ' s judgment ;

Noting with concern that, pending the entry into force of this new law, the implementation of Bug River claimants ' rights is to a large extent suspended,

CALLS U P ON the P olish authorities to intensify their efforts rapidly to finalise the legislative reform and create the conditions necessary for its effective implementation;

EX P ECTS to receive from the P olish authorities a comprehensive plan of action including time-table, on how they plan to ensure this implementation so as to guarantee that the claimants ' right to compensatory property does not remain illusory but becomes enforceable;

DECIDES to continue to give priority to the examination of this case until the judgment has been fully executed.

Appendix to Interim Resolution ResDH(2005)58

Information provided by the Government of P oland during the examination of the Broniowski case by the Committee of Ministers

I. The Constitutional Court ' s decision of 15 December 2004

On 15 December 2004 the Constitutional Court declared contrary to the P olish Constitution several provisions of the law of December 2003 ( Law on offsetting the value of property abandoned beyond the present borders of the P olish State against the price of State property or the fee for the right of perpetual use) , challenged in the judgment of the Grand Chamber.

This decision concerns in particular Article 2, paragraph 4 of this Law, according to which claimants in the applicant ' s position who had been awarded partial compensation, lost their entitlement to further compensation. The provision limiting the right to compensation to 50,000 Zlotys has also been declared contrary to the Constitution (Article 3, paragraph 2).

In accordance with national law, the provisions invalidated in the Constitutional Court ' s judgment lost their binding force on 27 December 2004 (the date of the publication of this judgment), except for Article 3, paragraph 2, which remained applicable until 30 April 2005.

Consequently, claimants in the applicant ' s situation will no longer meet any legal obstacles to fulfilling their entitlement to compensation equal to that planned for claimants who had received no compensation before, i.e. 15% of the value of their property.

II. Activities of the Agricultural P roperty Agency in application of the law of December 2003

Between 30 January 2004 and 31 October 2004 the Agency organised 30,000 auctions and offered for sale 60,000 hectares of land. In the relevant period persons entitled to receive compensatory property under the law of December 2003 participated in 60 auctions and concluded 33 purchase contracts with the Agency.

III. Legislative reform

In response to the judgment of the European Court in this case , the P olish authorities initiated a reflection process concerning the necessity of legislative reform. This process subsequently also extended to the judgment of the Constitutional Court of 15 December 2004. The conclusion was that new legislation regulating the implementation of the property right in question should be adopted.

A draft law was drawn up by the competent ministries in consultation with the associations representing Bug River claimants. The text was submitted to P arliament on 3 March 2005 and is expected to be adopted by the end of July 2005.

The provisions of the draft law take into account the considerations of both the European Court and the P olish Constitutional Court. The main aim of this new legislation is to ensure a comprehensive legal framework for the implementation of the entitlement for compensatory property in conformity with the P olish Constitution and the Convention requirements.

It should be noted in particular, that the new draft law provides further possibilities to assert claims concerning property beyond the Bug River in comparison with the December 2003 Act. According to Article 13, paragraph 1-1, claimants ' entitlement to property abandoned beyond the present borders of the P olish state may be offset not only against the price of state property acquired at public auctions or against the fee for perpetual use of such property, but also against the price to be paid for the transformation of the right for perpetual use into a right of property. Furthermore, the claimants may have their entitlement paid from the P rivatisation Fund established under the 1996 Act on P rivatisation and Commerialisation (Article 13, paragraph 1-2).

As regards the amount of the compensation for Bug River claims, the draft law, like the December 2003 Act, also provides that it is limited to up to 15% of the value of the abandoned property. The P olish authorities consider that this specific limitation should remain in the new law as it is based on a thorough analysis of the registered claims and the financial capacity of the P olish state and has been challenged neither by the P olish Constitutional Court nor by the European Court.

IV. P ublication

The European Court ' s judgment has been published on the Internet site of the Ministry of Justice www.ms.gov.pl . The present resolution will also be published on the same Internet site.

V. Conclusion

The P olish government believes that the above measures demonstrate its determination to bring domestic law fully into line with the Convention requirements, as set out in the Court ' s judgment, and to ensure the effective implementation of the Bug River claimants ' right to compensation. The P olish authorities will continue to take all necessary measures to that effect and will keep the Committee of Ministers informed of all new developments, and in particular of the practical implications of the measures adopted.