Communicated on 15 December 2014

FOURTH SECTION

Application no. 64128/12 Danuta DOBRZAŃSKA and Wiktor DOBRZA Ń SKI against Poland lodged on 20 September 2012

STATEMENT OF FACTS

The applicants, Ms Danuta Dobrzańska and Mr Wiktor Dobrzański , are Polish nationals, who were born in 1928 and 1941 respectively and live in Sosnowiec . They are represented before the Court by Mr Z. Cichoń , a lawyer practising in Cracow .

A. The circumstances of the case

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

1 . The applicants ’ attempts to have the expropriation decision declared null and void and to be granted compensation before the administrative authorities

The applicants are legal successors of former owners of land situated in Niwka , Poland. In 1951 their legal predecessors were obliged to transfer their property to the State Treasury without compensation. The transfer was confirmed by a protocol dated 8 February 1951 issued by the Minister of Mining.

On 19 September 2002, at the applicants ’ request, the Minister of Economy declared that the 1951 protocol had been null and void. This decision entitled the applicants to seek compensation on the basis of the relevant provisions of the Code of Administrative Proceedings.

The applicants requested the Minister of Economy to grant them compensation for lost profits which they could have made had they had the property at their disposal.

On 9 July 2008 the Minister of Economy refused to grant compensation for lost profits finding that the rights to the property in question had been restored to the applicants and that they had not proved that they sustained any further damage. It also found that according to the case-law of the Polish Supreme Court and Constitutional Court the applicants could not seek compensation of expected profits for loss which they had allegedly sustained before the entry into force of the 1997 Constitution.

2. Proceedings before the civil courts

The applicants then sought compensation for loss of expected profits in civil courts. On 18 December 2008 they lodged a claim with the Warsaw Regional Court. They limited their claim to the period from the entry into force of the 1997 Constitution until the day when the property was returned to them.

The first instance court admitted that the Supreme Court ’ s case-law had gone in two opposite directions; the first line of case-law accepted that in situations similar to that of the applicants ’ they could seek both actual loss ( damnum emergens ) and expected profits ( lucrum caessans ) , the second line limited the compensation to actual loss only. The first instance court shared the latter opinion and dismissed the applicant ’ s claim.

The court decided to base its judgment on the latter case-law of the Supreme Court and considered that it could not grant the applicants compensation for loss of expected profits because the right to a full compensation was inserted into the Polish Constitution only on 17 October 1997, when the Constitution entered into force, and the damage in question occurred before that date.

On 22 July 2010 the Warsaw Regional Court dismissed the applicants ’ claim.

The applicants appealed against the first-instance judgment.

After the first-instance judgment, on 31 March 2011, the Supreme Court, sitting as a full bench adopted a resolution (III CZP 112/10) in which it acknowledged that the respective provisions of civil and administrative law had given rise to serious difficulties and to divergent interpretation in judicial practice. It held that in situations similar to that of the applicants ’ if a final decision was given in breach of law before the entry into force of the 1997 Constitution, compensation on the basis of Article 160 of the Code of Administrative proceedings did not contain lucrum caessans even if the loss of expected profits happened after the entry into force of the 1997 Constitution.

On 15 March 2012 the Court of Appeal, examining the applicants ’ appeal, referred to the above mentioned Supreme Court ’ s resolution and held that the compensation for loss of expected profits could only be granted if the wrongful decision was issued after the entry into force of the 1997 Constitution. It further found that the loss in the applicant ’ s case had occurred before that date and, therefore, dismissed the applicant ’ s appeal.

The applicants did not lodge a cassation appeal, since it would not have any prospects of success; the Supreme Court would have to follow the resolution adopted in 2011 by the Supreme Court sitting as a full bench.

B. Relevant domestic law and practice

Article 77 of the Polish Constitution which entered into force on 17 October 1997 provides:

“ 1. Everyone shall have the right to compensation for any harm done to him by any action of an organ of pu blic authority contrary to law.

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

Compensation for damage caused by unlawful administrative decisions

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, as applicable to the applicants ’ case, read in its relevant part:

“A person who has suffered loss on account of the issuing of a decision in a manner contrary to Article 156 § 1 or on account of the annulment of such a decision shall have a claim for compensation for actual damage, u nless he has been responsible for the circumstances mentioned in this provision.”

COMPLAINT S

The applicants complain under Article 1 of Protocol No. 1 to the Convention. They claim that as a result of divergent case-law of the Polish Supreme Court they had been deprived of compensation for the loss which they sustained after the entry into force of the Polish 1997 Constitution. They further complain that, as a result of the Supreme Court ’ s case-law which created a disproportionate protection of the State Treasury against claims by private individuals, they had to bear an excessive burden and the existing legal provisions guaranteeing right to compensation became non effective and illusory.

QUESTION TO THE PARTIES

Has there been an interference with the applicants ’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? If yes, has the interference complied with the requirements of this provision? Reference is made to the fact that the loss of use of the property was occasioned by reasons of a non-return on the basis of an act in the past that had been already declared null and void. Reference is also made to inconsistency in the case-law of the Supreme Court and legal uncertainty which the applicants had to face.