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FOURTH
SECTION
CASE OF BELKA v. POLAND
(Application
no. 20870/04)
JUDGMENT
STRASBOURG
18 May
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Belka v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 27 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20870/04) against the
Republic of Poland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Polish national,
Ms Walentyna Belka (“the applicant”), on 11 May
2004.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged a breach of Article 6 § 1 of the Convention in
respect of the proceedings before the Polish-German Reconciliation
Foundation.
- On
26 September 2005 the President of the Fourth Section decided to give
notice of the application. It was also decided to examine the merits
of the application at the same time as its admissibility (Article 29
§ 3).
- Third-party
comments were received from the Government of Germany which had
exercised its right to intervene (Article 36 § 1 of
the Convention and Rule 44 § 1 (b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1934 and lives in Kościan.
- During
the Second World War, in 1940, the applicant’s entire family –
her parents and their children – were expelled from their house
and farm in the vicinity of Poznań by German occupying forces.
Subsequently, they were for some time placed in a camp for expelled
persons in Poznań and then shipped off to eastern Poland,
referred to at that time as General Government (“Generalna
Gubernia”), which was occupied by the German authorities.
The applicant and her family were assigned to live on a farm of local
farmers in Szaniawy. At the time of the expulsion, imprisonment and
resettlement the applicant was six years old.
- On
16 June 2001 the applicant submitted a request for financial
assistance from the Polish-German Reconciliation Foundation under the
so-called second compensation scheme (see paragraph 16 below). She
declared that she had been a victim of persecution by the German
occupying authorities during the Second World War. In support of her
claims the applicant submitted the following documents: a form
certifying registration of her stay in Szaniawy during the war, a
certificate of her first communion issued by the rector of the parish
of Trzebieszów, a certificate of her mother’s death in
Szaniawy, statements by three witnesses certifying that the applicant
had been expelled from the Poznań Province to Szaniawy during
the war, the workbook (“Arbeitsbuch”) of her
father’s sister, issued by the German authorities, and a number
of documents from various Polish archives informing the applicant
about difficulties in obtaining documents confirming the persecution
to which she had been subjected.
- In
2002 the Verification Commission of the Polish-German Reconciliation
Foundation, established under the Agreement of 16 October 1991
between the Polish and German Governments and operating on the basis
of its statute, refused to pay financial assistance to the applicant,
considering that persons expelled from their homes and properties by
the German forces of occupation during the war were not entitled to
compensation.
- It
further stated that the evidence submitted by the applicant, in
particular the witness statements, was insufficient to confirm that
the applicant and her family had been imprisoned in the camp for
expelled persons.
- The
Foundation in its letter referred to the requirements of eligibility
which were laid down by regulations governing the functioning of the
second compensation scheme operated by the Foundation (on the basis
of a Law of 2000 on the Creation of the “Remembrance,
Responsibility and Future” Foundation enacted by the German
Parliament and the subsequent agreement between that Foundation and
the Polish-German Reconciliation Foundation, see paragraph 16 below).
- The
applicant appealed. On 21 November 2003 the Appeals Commission of the
Foundation upheld the contested decision. It informed the applicant
that she was not eligible for financial assistance under the scheme
in respect of her deportation. Neither she nor her family had been
deported for the purposes of forced labour to the territory of the
German Reich within its borders of 1937.
Moreover,
the evidence which she had submitted did not allow it to be
established that the applicant and her family had indeed been
imprisoned in the camp in Poznań. It further informed the
applicant that no appeal lay against this decision.
- On
12 January 2007 the public prosecution services lodged an action on
the applicant’s behalf with the Warsaw District Court,
referring to Article 189 of the Civil Code and to the Court’s
judgment in the case of Woś v. Poland (no. 22860/02, ECHR
2006 VII) and seeking to confirm that judicial review of the
Foundation’s decisions had been available to the applicant at
the relevant time.
- These
proceedings were stayed on an unspecified later date, when the court
referred to an individual constitutional complaint pending before the
Constitutional Court at that time and brought by a certain Mr K.
Subsequently, in June 2007 the Supreme Court, by way of a resolution,
held that decisions of the Foundation could be challenged before the
ordinary courts (see paragraph 20 below). This approach was
indirectly confirmed by a decision given by the Constitutional Court
in the case referred to above (see paragraph 21 below). The
prosecuting authorities did not request that the civil proceedings
brought on the applicant’s behalf be resumed.
- In
February 2007 the Foundation officially notified the public that it
had ceased, as from 31 December 2006, to make any further payments to
the victims, having allocated all financial resources which had been
earmarked for that purpose.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant law and practice concerning the Polish-German Reconciliation
Foundation is set out in the Court’s judgment in the case of
Kadłuczka v. Poland, no.
31438/06, §§ 19-45, 2 February 2010.
THE LAW
I. THE CONTINUED EXAMINATION OF THE APPLICATION
- In
her letters dated 7 and 21 May 2006 the applicant stated that she had
experienced insurmountable difficulties in finding a lawyer willing
to represent her and in obtaining the translation of the documents
served on her in connection with the proceedings before the Court.
She stated that she did not wish to pursue the application. However,
in a subsequent letter of 29 May 2006 she expressed the wish
that the examination of the case be continued.
- The
Court notes that the applicant’s statements were contradictory
and that it was difficult to determine her final position as to
whether she wished to pursue her application. However, the Court
takes note of the complex nature of the complaints made in the
present case. It is further of the view that the case raises
important issues of general interest in connection with the legal
review of decisions which were, until December 2006, given by the
Polish-German Reconciliation Foundation. The importance and
complexity of the issues are evidenced also by the fact that the
Court has given a number of decisions and judgments relating to
similar cases (see Woś v. Poland, no. 22860/02,
ECHR 2006 VII; Jakowicz v. Poland, (dec.),
no. 16778/02, 13 October 2009; Kadłuczka
v. Poland, no. 31438/06,
2 February 2010; Kostka v. Poland,
no. 29334/06, 16 February 2010; and Krosta
v. Poland, no. 36137/04,
2 February 2010).
-
Accordingly, the Court does not find it appropriate to strike the
application out of its list of cases. It considers that there are
special circumstances regarding respect for human rights as defined
in the Convention and its Protocols which require the further
examination of the application on its merits (Articles 37 § 1 in
fine and 38 § 1(b) of the Convention; see also
Wieczorek v. Poland,
no. 18176/05, § 34, 8 December 2009,
mutatis mutandis).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- Relying
on Articles 1 and 6 of the Convention, the applicant complained that
she had been deprived of a fair trial in the proceedings before the
Foundation’s bodies in so far as they related to her claim
concerning compensation for her imprisonment in the camp for expelled
persons.
The
Court considers that her complaint concerns the lack of access to a
court in respect of that part of her claim raised before the Polish
Foundation. The complaint falls to be examined under Article 6
§ 1 of the Convention, the relevant parts of which provide:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law. ...”
A. Applicability of Article 6 § 1
1. The parties’ submissions
- The
Government argued that Article 6 § 1 of the Convention was not
applicable to proceedings before the Polish Foundation in respect of
the second compensation scheme. The payments made by the Foundation
were made ex gratia and could not therefore be assimilated to
payments made under the provisions of civil law. The applicant’s
right to obtain such payment had never been recognised under either
Polish law or German law. The substantive criteria of entitlement to
compensation had been laid down in German law. They submitted that
there had been no “dispute” over a “right”
which had been recognised under Polish law.
As
there had been no legal basis for her claim in Polish law, the
applicant could not avail herself of a declaratory action under
Article 189 of the Civil Code and seek thereby a judicial
declaration that judicial review against the Foundation’s
decision had been available in her case. Thus, as she had no
substantive right, even on arguable grounds, she could not claim to
be a victim of a breach of the Convention. Moreover, the applicant
had never used any other judicial remedies in order to assert her
rights. She had therefore not complied with the requirement of
exhaustion of domestic remedies.
- The
applicant contested the Government’s argument.
2. The Court’s assessment
(a) Principles deriving from the Court’s
case-law
- The
Court reiterates that, according to the principles laid down in its
case law, it must first ascertain whether there was a “dispute”
(“contestation”) over a “right” which
can be said, at least on arguable grounds, to be recognised under
domestic law, irrespective of whether this “right” is
also protected under the Convention (see, inter alia, Neves
e Silva v. Portugal, 27 April 1989, § 37,
Series A no. 153-A). 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. The outcome of the
proceedings must be directly decisive for the right in question (see,
among other authorities, Athanassoglou and Others v. Switzerland
[GC], no. 27644/95, § 43, ECHR 2000-IV; Mennitto
v. Italy [GC], no. 33804/96, § 23, ECHR
2000-X, Związek Nauczycielstwa Polskiego v. Poland,
no. 42049/98, § 28, ECHR 2004 IX). Lastly, the
right must be a “civil” right.
(b) Application of the above principles to
the present case
- The
Court recalls that in the Woś v. Poland judgment,
referred to above, it examined a similar complaint in respect of the
first compensation scheme, set up on the basis of the bilateral
Polish German agreement of 16 October 1991 and found
Article 6 § 1 applicable to the proceedings before the
Polish-German Reconciliation Foundation.
- In
contrast, the present case concerns the second compensation scheme,
which was established following multilateral negotiations with a view
to providing compensation to slave and forced labourers and other
victims of the National Socialist period, primarily from Central and
Eastern Europe. The agreement reached in the negotiations, in
particular in respect of the categories of persons who were eligible
and the establishment of the German Foundation as a means of
providing funds to victims, was subsequently incorporated in the
German Foundation Act of 2 August 2000. Section 10 of the
Act stipulated that partner organisations, including the Polish
Foundation, were entrusted with evaluation of claims and disbursement
of payment to eligible claimants. The same provision stipulated that
the German Foundation was neither authorised nor obligated in respect
of the approval and disbursement of payments by the partner
organisations. The particular feature of the second compensation
scheme was that the eligibility conditions had been specified in the
GFA, while at the same time the examination of the relevant
applications was to be carried out by the partner organisations,
including the Polish Foundation.
The
Court considers that for all practical purposes, decisions to qualify
applicants as coming under a particular eligibility category and to
grant payments in respect of the claimants who resided in Poland were
taken by the Polish Foundation (see Woś v. Poland
(dec.), no. 22860/02, § 66, ECHR 2005 IV;
Jakowicz v. Poland, (dec.), no. 16778/02, § 76
in fine, 13 October 2009). The Court notes that the
German Foundation carried out random checks of the decisions taken by
the Polish Foundation, but in its view this does not alter the
conclusion that the Polish Foundation played the main role in the
process. In any event, there is no evidence that the decisions in
respect of the applicant’s claims were reviewed or altered by
the German Foundation.
- In
the Woś judgment, referred to above, the Court held that
the Convention imposes no general obligation on the Contracting
States to provide redress for wrongs inflicted in the past under the
general cover of State authority (see also, mutatis mutandis,
Kopecký v. Slovakia [GC], no. 44912/98, § 38,
ECHR 2004 IX). This principle applies to the Federal
Republic of Germany in respect of wrongs or damage caused by the
German Reich (see Associazione Nazionale Reduci Dalla
Prigionia dall’Internamento e dalla Guerra di Liberazione
(A.N.R.P.) v. Germany (dec.), no. 45563/04,
4 September 2007; and Ernewein and Others v. Germany
(dec.), no. 14849/08, 2 May 2009) but it is even more
relevant for third States, like Poland, who bear no responsibility in
connection with wrongs inflicted by a foreign occupying force or
another State (see, mutatis mutandis, Broniowski v. Poland
[GC], no. 31443/96, § 124, ECHR 2004 V; Von
Maltzan and Others v. Germany (dec.) [GC],
nos. 71916/01, 71917/01 and 10260/02, § 77,
ECHR 2005 V).
- However,
the Court recalls that if a compensation scheme were to be
established, the substantive regulations which determined the
eligibility conditions for any compensation would in principle fall
outside the Court’s jurisdiction, unless the relevant
conditions were manifestly arbitrary or blatantly inconsistent with
the fundamental principles of the Convention (see Woś v.
Poland, cited above, § 72). In other words, when a
State decides to compensate the past wrongs for which it bore no
responsibility, it enjoys a significant discretion (grand pouvoir
d’appreciation) in determining the beneficiaries and the
modalities of any compensation scheme and, in principle, no challenge
to the eligibility conditions as such may be allowed (see Maltzan
and Others, cited above, § 77; Epstein and Others
v. Belgium (dec.), no. 9717/05, ECHR 2008 ...
(extracts)).
- The
Court observes that the compensation scheme established under the GFA
concerned claims of forced labourers and other victims of Nazi
Germany (see section 2 of the GFA on the purpose of the German
Foundation). As those claims date back essentially to the Second
World War there could be no question of the Polish State’s
responsibility for the wrongs committed during that period. It is
clear that the Polish State has no obligations of any kind to redress
the wrongs inflicted by another State as its citizens were victims of
the exactions and persecution committed by the German occupying
authorities and not perpetrators (see Woś v. Poland
(dec.), cited above, § 85).
- In
the context of the present case, the Court underlines that the
substantive eligibility conditions under the second scheme were
defined in the German Foundation Act and had to be applied as such by
the partner organisations, including the Polish Foundation. It
follows that when processing applications the Polish Foundation was
bound to follow the substantive criteria as specified in the GFA and
had no power either to review its reasonableness or to unilaterally
modify or extend them. Thus, the Polish Foundation and, a
fortiori, the Polish State cannot bear responsibility in cases
where an applicant, due to the scope of the substantive eligibility
conditions as such, was not included in the group of persons entitled
to certain benefits. The Court emphasises that the Polish Foundation
exercised only a certain measure of discretion when assessing the
facts of individual cases and the evidence submitted by the
claimants. Its assessment of those elements was decisive for the
outcome of the proceedings before the Foundation. The Court considers
that the responsibility of the Polish State may be engaged
exclusively as regards those cases where the dispute concerns the
application of the eligibility conditions to the facts of individual
cases in the area falling within the Foundation’s margin of
discretion. Accordingly, in each case it is necessary to determine
whether a claimant challenges the eligibility conditions or the
assessment of facts and evidence by the Polish Foundation and whether
that assessment remained within the Polish Foundation’s margin
of discretion.
- Turning
to the circumstances of the present case, the Court notes that the
applicant claimed payment from the Foundation referring to the fact
that she and her family had been imprisoned in a camp for expelled
persons in Poznań immediately after their expulsion from their
farm. In order to substantiate her claim the applicant submitted
three written witness statements. However, the Foundation refused to
award payment to her in respect of that part of her claim,
considering that the available evidence was insufficient for a
finding that she had indeed been imprisoned in that camp.
- The
essence of this part of the applicant’s case is that the Polish
Foundation wrongly considered that she had failed to show that she
had been a prisoner of the camp for persons expelled by the German
occupying authorities from their houses and properties and,
consequently, that she was not eligible for benefits. Hence, the
thrust of this part of the application is directed against the Polish
Foundation’s erroneous assessment of the facts underlying her
claim and the resultant flawed application of the eligibility
conditions to her case (compare and contrast Jakowicz v. Poland
(dec.), cited above, § 80). In the case of Jakowicz
the Foundation dismissed the applicant’s claims, which went
beyond the scope of the substantive eligibility conditions and as
such were outside the Foundation’s remit. By contrast, in the
present case the Foundation refused the applicant’s claims
while exercising its discretion as to the assessment of relevant
facts which had a direct bearing on the determination of her
eligibility status. Thus, this part of the application can be
distinguished from the Jakowicz case on the ground that it
concerned a dispute as to the assessment of relevant facts and not a
mere challenge to the substantive eligibility conditions.
Accordingly, the Court finds that a dispute arose between the
applicant and the Foundation as regards the application of the
eligibility conditions to her case.
- The
Court has next to determine whether the right to receive payment from
the Polish Foundation on account of persecution was recognised, at
least on arguable grounds, under domestic law. The Court recalls that
in the case of Associazione Nazionale Reduci Dalla Prigionia
dall’Internamento e dalla Guerra di Liberazione (cited
above), concerning the second compensation scheme, it examined the
complaints of former Italian POWs about the exclusion of judicial
review in respect of decisions rendered by the International
Organization for Migration (one of the partner organisations). The
Court found that as the applicants (former POWs) had been clearly
excluded from benefits under the German Foundation Act they could not
claim to have had a right to compensation. On that ground, it
distinguished the case from Woś and held that Article 6
was not applicable to the facts of that case.
- The
Court considers that this part of the applicant’s case is
distinguishable from the Associazione Nazionale Reduci
decision, in that it concerns the arguable claim of a person claiming
to have been imprisoned by the German occupying authorities. In
contrast, the Associazione Nazionale Reduci case dealt with
claims of persons who had been expressly excluded from the ambit of
the second compensation scheme on account of their undisputed POW
status, and thus no question of a right to compensation could arise.
- The
Court observes that the conditions and procedures with which a
claimant had to comply before a payment could be awarded by the
Polish Foundation were first agreed in the course of multilateral
negotiations, then laid out in the GFA and subsequently transposed
into the regulations binding on the Foundation via the Partnership
Agreement of 16 February 2001 and any subsequent agreements
concluded in the framework of the so-called openness clause. The
Polish Foundation’s statutes were subsequently amended with a
view to implementing the provisions of the GFA and the Agreement of
16 February 2001. Thus, the Foundation’s regulations
stipulated the conditions which had to be fulfilled by a person
seeking benefits. It is noteworthy that the Supreme Court in its
Resolution of 27 June 2007 found that the basis of the rights of
a person seeking payment from the Polish Foundation were the
Foundation’s statutes, the rules of the Verification Commission
and the relevant provisions of the GFA. The Court is mindful of the
particular character of the legal regime governing the second
compensation scheme which defined the categories of eligible
claimants. Nevertheless, it finds that the Polish Foundation’s
regulations could be considered to create a right for a claimant
arguably fulfilling the relevant eligibility conditions to claim
compensation from the Foundation (see, mutatis mutandis,
Woś v. Poland (dec.), cited above, § 83).
- The
Court notes that the payments at issue were voluntary in the sense
that the States were free to establish the scheme and to determine
the scope of its beneficiaries. However, once such a general scheme
has been adopted and once a claimant could be reasonably considered
to have complied with the eligibility conditions stipulated in the
GFA and in the Foundation’s regulations, he or she had a right
to be awarded payment by the Foundation (see Rolf Gustafson
v. Sweden, 1 July 1997, § 40, Reports
1997 IV and Woś v. Poland, cited above,
§ 75). The Court points out that in the somewhat similar
area of social security and welfare benefits, many domestic legal
systems provide for those benefits to be paid - subject to the
fulfilment of the conditions of eligibility - as of right (see Stec
and Others v. the United Kingdom (dec.) [GC], nos. 65731/01
and 65900/01, ECHR 2005 X, § 51; Wieczorek
v. Poland, no. 18176/05,
§ 65, 8 December 2009). In conclusion, the
Court finds that the Polish Foundation’s bodies had thus to
determine a dispute concerning a right asserted by the applicant.
- As
to the “civil” character of the right asserted by the
applicant, the Court reiterates that the concept of “civil
rights and obligations” is not to be interpreted solely by
reference to the respondent State’s domestic law. Article 6 §
1 of the Convention applies irrespective of the status of the
parties, the character of the legislation which governs how the
dispute is to be determined and the character of the authority which
is invested with jurisdiction in the matter (see, among other
authorities, Georgiadis v. Greece, 29 May 1997, §
34, Reports 1997-III).
- The
Court reiterates that in the Woś judgment, which
concerned similar claims under the first compensation scheme, it held
that those claims could be considered “civil” within the
meaning of Article 6 § 1 (see Woś v. Poland,
cited above, § 76). In reaching that conclusion, the Court
had regard, inter alia, to the similarities between the
compensation claims asserted before the Foundation and disputes over
entitlement to social security and welfare benefits, which generally
fall within the scope of Article 6 (see Mennitto v. Italy
[GC], no. 33804/96, § 28, ECHR 2000 X; Tsfayo v.
the United Kingdom, no. 60860/00, § 39, 14 November
2006).
- Further,
the Court notes that the Supreme Court in its resolution of 27 June
2007, referring extensively to the Woś judgment, found
that a claim against the Foundation was to be considered a “civil”
claim in a formal sense for the purposes of establishing court
jurisdiction. The Court consequently finds that the applicant’s
right to claim compensation from the Foundation on account of her
imprisonment in the camp for expelled persons could be considered
“civil” for the purposes of Article 6 § 1
of the Convention.
- For
the above reasons the Court finds that the right to compensation
asserted by the applicant under the second compensation scheme is a
civil right within the meaning of Article 6 § 1 of the
Convention and that this provision is applicable to the proceedings
before the Foundation in the applicant’s case.
B. Exhaustion of remedies
1. The parties’ submissions
- The
Government argued that the applicant had failed to exhaust relevant
domestic remedies as she had never challenged the Foundation’s
decisions in a domestic court. After the Supreme Court confirmed, by
its Resolution of 2007 (see paragraph 20 above), that a judicial
remedy was available against the decisions of the Polish Foundation,
the applicant should have availed herself of such remedy.
- The
applicant made no comment in that connection.
2. The Court’s assessment
42. The
purpose of Article 35 § 1, which sets out the rule on exhaustion
of domestic remedies, is to afford the Contracting States the
opportunity of preventing or putting right the violations alleged
against them before those allegations are submitted to the Court
(see, among other authorities, Selmouni
v. France [GC], no.
25803/94, § 74, ECHR 1999-V). The rule in Article 35 § 1
is based on the assumption, reflected in Article 13 (with which it
has a close affinity), that there is an effective domestic remedy
available in respect of the alleged breach of an individual’s
Convention rights (see Kudła v. Poland [GC],
no. 30210/96, § 152, ECHR 2000 XI).
- Nevertheless,
the only remedies which Article 35 of the Convention requires to
be exhausted are those that relate to the breaches alleged and at the
same time are available and sufficient. The existence of such
remedies must be sufficiently certain not only in theory but also in
practice, failing which they will lack the requisite accessibility
and effectiveness (see, inter alia, Scordino v. Italy
(no. 1) [GC], no. 36813/97, § 142, ECHR
2006 ...).
-
The Court notes that that the Supreme Court, in its Resolution of
27 June 2007, given by a panel of seven judges, stated firmly
that, prior to its Resolution, interested persons had been deprived
of the possibility of challenging the Foundation’s decisions in
a court. The Supreme Court found that the prevailing trend in the
case-law of the civil courts was for exclusion of judicial review in
respect of those decisions. The Court notes that it was only that
authoritative decision of the Supreme Court which, having regard,
among others, to the Woś judgment, reinterpreted the
notion of a “civil case” and acknowledged that such
claims could be heard by civil courts. Accordingly the Court finds
that prior to 27 June 2007 the availability of judicial review
in respect of the Foundation’s decisions had not been
established.
- After
that date, it would not have served any practical purpose to claim
payment against the Foundation before a civil court, given that the
Foundation had ceased to make payments as from 31 December 2006
(see paragraph 15 above).
- It
follows that the Government’s plea of inadmissibility on the
ground of non-exhaustion of domestic remedies must be dismissed.
C. Conclusion as to admissibility
- The Court notes that this part of the application is
not manifestly ill founded within the meaning of Article 35
§ 3 of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
D. Compliance with Article 6 § 1
1. The parties’ submissions
- The
Government reiterated that the case did not concern the determination
of the applicant’s civil rights or obligations within the
meaning of Article 6 of the Convention. Hence, she could not derive a
right of access to a court from this provision. The Polish
authorities had never accepted the obligation to redress the wrongs
done to Polish citizens by Nazi Germany. The Polish Foundation had
been acting merely as an intermediary between the claimants and the
founder, the German “Remembrance, Responsibility and Future”
Foundation. It had been playing only a supporting role, collecting
documents, processing applications and establishing the eligibility
of claimants. Furthermore, the charitable nature of the payments made
by the Polish Foundation did not allow them to be regarded as civil
in character. This was confirmed also by the size of the Polish
Foundation’s assets which, given the magnitude of wrongs
committed by the German occupying regime to the Polish citizens
during the Second World War, would clearly be insufficient to
compensate the victims for damage which they had suffered.
- In
any event, the right of access to a court was not an absolute one.
Various restrictions could be imposed on it as that right, by its
very nature, called for regulation by the State. In imposing such
restrictions, the States were allowed a certain margin of
appreciation, provided that the restrictions did not threaten the
very essence of that right. In the present case, the restrictions
placed on access to a court by the German Law of 2000 and the
agreement between the Polish and German Foundations could not be
deemed to infringe Article 6 of the Convention since they had been
imposed with the aim of ensuring equitable payments to the relatively
small group of persons meeting the eligibility criteria. Had these
criteria allowed for disbursing payments to a broader group of
victims, they would have been entitled to smaller payments.
- The
applicant generally disagreed with the Government’s
submissions. She submitted that she had been deprived of access to a
court which had jurisdiction to review the decision given by the
Polish Foundation in her case. As a result, the manifestly erroneous
and arbitrary decisions given in her case had not been subjected to
any kind of fair or thorough review.
2. The third party’s submissions
- The
German Government submitted that the Federal Republic of Germany
considered it a particular obligation to attempt to make certain
reparations for the injustice committed by the Nazi regime and to
that end it had adopted various regulations to provide reparations to
the victims. Compensation to foreign individuals for forced labour
was in principle not provided until the establishment of the
“Remembrance, Responsibility, Future” Foundation. The
German Government submitted that it had been important that the
payments should benefit those who, due to their advanced age, their
failing health or other trauma arising from forced labour had been
prevented from pursuing costly and time-consuming court actions. In
order to provide as many of them as possible with compensation, this
had to be done as quickly as possible.
- The
German Foundation had primarily used already-existing institutions
(“partner organisations”) which had the relevant
experience in order to implement the application procedure and the
payment of compensation. Its financial resources had been allocated
in specified amounts (so-called “ceilings”) to the seven
partner organisations. The Foundation Act defined those eligible for
compensation and determined the maximum amount of compensation for
certain categories. The partner organisation, in concert with the
Board of Trustees, could establish additional subcategories and set
corresponding amounts.
- The
German Government claimed that it was not the German Foundation which
decided on applications. Rather, decisions were made by the
respective partner organisation and its appeal board, based upon the
submitted evidence or substantiation. The procedure for processing
applications had been determined by the German Foundation with the
partner organisations through so-called partnership agreements.
- Distribution
of funds to those eligible for compensation had also been undertaken
by the partner organisation. When a number of applications were
granted by a partner organisation, they were forwarded to the German
Foundation in the form of a so-called tranche list. An evaluation
team from the German Foundation made spot checks of the list,
assessing the compliance of the decisions with the provisions of the
Foundation Act. The same procedure applied to the applications which
were refused. If the evaluation by the German Foundation showed that
the partner organisation had made an erroneous decision, it was
called upon to review its decision and the funds remained frozen
until the case was clarified.
- As
regards the review of decisions, the German Government submitted that
each partner organisation was to establish an independent appeal
organ that was not subject to any outside instruction. As a general
rule, the decisions of the appeal organs were final. The German
Foundation was not an additional or higher appeal instance to which
claimants could turn if the independent appeal organ did not accept
their objection. If other grossly erroneous decisions were determined
in the spot-check assessment, the partner organisation would reopen
the application process and remedy the error by issuing a new
decision.
- The
German Government maintained that legal actions against decisions
taken on appeal were not permissible under German or Polish law.
Payment of compensation to individuals under the Foundation Act was
not made pursuant to an individual legal entitlement. Rather, such
payments were voluntary payments by the German State and German
industry which had been based upon previous international
negotiations, and whose contractual terms had been accepted by the
Polish Government.
- Lastly,
the German Government referred to the decision of the Federal
Constitutional Court of 7 December 2004 which examined the
constitutionality of section 16 of the Foundation Act.
According to that provision, claims arising out of forced labour
could only be asserted within the scope of the Foundation Act and
further-reaching claims were excluded. The claimants in that case had
been prisoners in the Auschwitz concentration camp and had been
subjected to forced labour for a company. Their pending civil suit
for compensation against the company was dismissed pursuant to
section 16 of the Foundation Act, which had entered into force in the
meantime. The Federal Constitutional Court refused to admit the
constitutional complaint. It recognised that there had been
interference with the claimants’ property rights, but
considered that the provision as a whole was constitutionally
permissible. In taking that view, the Federal Constitutional Court
took into account the purpose of the Act, which was to provide rapid
compensation to as many forced labourers as possible and, at the same
time, to establish legal security for German companies. It held that
the interference with the property rights of the forced labourers
could be justified, having regard to the overall scope of the
provision in question. The Act spared the claimants protracted legal
disputes and ensured that the payments were not dependent upon
coincidences, such as, for example, whether the companies from that
era still existed or remained solvent.
- In
conclusion, the German Government argued that without the
establishment of the Foundation only an extremely small number of the
former forced labourers would have had the opportunity to receive
compensation. As such, the establishment of the Foundation
strengthened the legal position of the forced labourers as a group.
3. The Court’s assessment
- Article 6 § 1 requires that in the determination
of civil rights and obligations, decisions taken by administrative or
other authorities which do not themselves satisfy the requirements of
that Article be subject to subsequent control by a judicial body that
has full jurisdiction (see Le Compte, Van
Leuven and De Meyere v. Belgium, 23 June 1981, § 51,
Series A no. 43; Woś v. Poland, no. 22860/02, § 92,
ECHR 2006 VII). The Court must therefore first ascertain whether
the Foundation’s adjudicating bodies – the Verification
Commission and the Appeal Commission – could be considered as
tribunals conforming to the requirements of Article 6 § 1.
- In
this connection, the Court notes that the Government stressed the
significant role of the German Foundation in the decision-making
process concerning the claims raised before the Polish Foundation.
Even assuming that the German Foundation could to some extent verify
the correctness of the decisions taken by the Polish Foundation,
there is no evidence that it had been involved in reviewing decisions
taken in the applicant’s case. Thus, the Court, having regard
to Article 10 of the GFA, reaffirms that for all practical purposes,
decisions to grant payments in respect of claimants who resided in
Poland were taken by the Polish Foundation (see Woś v. Poland
(dec.), cited above, § 66; Jakowicz (dec.), cited
above, § 76 in fine).
- According
to the Court’s settled case law, a tribunal within the
meaning of that provision must satisfy a series of requirements –
independence, in particular of the executive, impartiality, duration
of its members’ terms of office, and guarantees afforded by its
procedure – several of which appear in the text of Article 6
§ 1 itself (see Belilos v. Switzerland, 29
April 1988, § 64, Series A no. 132; Demicoli v. Malta,
27 August 1991, § 39, Series A no. 210; and
Cyprus v. Turkey [GC], no. 25781/94, § 233,
ECHR 2001 IV). In the present case, as regards structural
guarantees, the Court notes that the members of the Verification
Commission and the Appeal Commission were appointed and dismissed by
the Foundation’s management board and, in respect of the
latter, in consultation with the Foundation’s supervisory
board. The Foundation’s statutes also specified that the rules
governing the operation of the Foundation’s adjudicating bodies
were to be set out in the regulations drafted by the management board
and adopted by the supervisory board. The Foundation’s
governing bodies were in turn appointed and dismissed by the
Government Minister at his or her full discretion. Furthermore, a
degree of control and supervision over the Foundation was exercised
by the Government Minister. Furthermore, it appears that the members
of the Verification Commission and the Appeal Commission did not have
tenure. Thus, the Court considers that the independence of the
Foundation’s adjudicating bodies, despite the Government’s
arguments to the contrary in respect of the Appeal Commission, was
open to serious doubt. As regards procedural guarantees, it appears
that the adjudicating commissions had no clear and publicly available
rules of procedure (see H. v. Belgium, 30 November
1987, § 53, Series A no. 127 B) and did not hold
public hearings. For these reasons, they cannot be regarded as
tribunals within the meaning of Article 6 § 1.
- Therefore,
in order for the obtaining situation to be in compliance with Article
6 § 1, the decisions of the Foundation’s adjudicating
bodies should have been subject to review by a judicial body having
full jurisdiction. However, the Court notes that until June 2007 the
domestic courts’ prevailing position, as confirmed in the
Supreme Court’s Resolution of 27 June 2007, was that judicial
review by either administrative or civil courts in respect of the
Foundation’s decisions was excluded (see paragraphs 17 21
above). The Government, in their submissions, actually confirmed that
the applicant could not submit any appeal against the Appeal
Commission’s decision to any Polish court.
- The
Court observes that the major change in respect of the availability
of judicial review in civil proceedings came with the Supreme Court’s
Resolution of 27 June 2007. The Supreme Court revisited the
existing practice and held that claims against the Polish Foundation
in respect of Nazi persecution were civil claims in the formal sense.
Accordingly, the civil courts had jurisdiction to examine such
claims. The Court very much welcomes such a positive development in
the Supreme Court’s case law which, at least in part, was
prompted by its judgment in the Woś case.
- Having
regard to the above considerations, the Court considers that the
exclusion of judicial review in respect of the decisions given by the
Foundation and concerning the applicant’s claim arising in
respect of her imprisonment in the camp for expelled persons impaired
the very essence of her right of access to a court within the meaning
of Article 6 § 1 of the Convention.
- It
follows that there has been a breach of Article 6 § 1
of the Convention.
III. OTHER ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant further complained that she had not received compensation
from the Foundation under the second compensation scheme in respect
of the fact that she had been expelled from her parents’ house
by the German occupying administration. As a result of the expulsion
she and her family had suffered serious hardship, lost their home and
property and had been exposed to physical and psychological
suffering. They had experienced difficulties in finding accommodation
afterwards and had been exposed to a long period of uncertainty and
poverty. The expulsion had lacked any legal basis and had been
carried out for the purposes of settling German nationals in the
farms of their lawful Polish owners. She should have received
compensation for that, but the Foundation had refused. Moreover, the
Foundation’s decision could not be reviewed by any other body.
- The
Court reiterates that the responsibility of the Polish State may be
engaged exclusively as regards those situations where the dispute
concerns the application of the eligibility conditions to the facts
of individual cases in the area falling within the Foundation’s
margin of discretion (see paragraphs 30 – 34 above). It has
already examined the applicant’s complaint in so far as it
related to the establishing of the facts relevant for the legal
characterisation of the particulars of her claim and to the
assessment of the evidence which the applicant had submitted to the
Foundation to prove her claim in respect of imprisonment in the camp
for expelled persons.
However,
the other part of her claim was of a different character. In fact,
both in the proceedings before the Foundation organs and before the
Court, the applicant challenged the substantive criteria on the basis
of which an entitlement to compensation arose under the 2000 Law. The
thrust of the applicant’s grievance was directed against the
fact that no compensation was foreseen in the second compensation
scheme for persons expelled from their properties during the Second
World War by the German occupying administration or for persons who
had been otherwise deprived of their property during that time. In
other words, she attempted to challenge the substantive regulations
which defined the scope of the beneficiaries of the second
compensation scheme. As such, her claim was not satisfied by the
Polish Foundation, and could not have been, since the Foundation had
no discretion as to the substantive aspects of that scheme. In
conclusion, the Court considers that the applicant could not claim to
be entitled to receive wider-reaching benefits from the Foundation.
- It
follows that Article 6 § 1 of the Convention does not apply to
that part of the facts of the present case which concern the
applicant’s compensation claim for the expulsion of her family
from their farm. This part of the application is thus incompatible
ratione materiae with the provisions of the Convention within
the meaning of Article 35 § 3 and must be rejected in
accordance with Article 35 § 4.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant claimed just satisfaction for both pecuniary and
non pecuniary damage, without specifying its amount.
- The
Government submitted that any just satisfaction to be awarded in the
case should be compatible with amounts awarded in similar cases.
- The
Court is of the view that it has not been duly substantiated that the
applicant sustained pecuniary damage as a result of the violation of
her right of access to court. However, the Court accepts that the
applicant has suffered non-pecuniary damage which is not sufficiently
compensated by the finding of a violation. Making its assessment on
an equitable basis and having regard to the circumstances of the
case, the Court awards the applicant EUR 5,000 under this head.
- The
applicant did not submit any claim in respect of costs.
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the complaint regarding the
lack of access to a court in respect of the proceedings before
the Polish German Reconciliation Foundation concerning the
applicant’s entitlement to payments in respect of her
imprisonment in the camp for expelled persons, and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Polish zlotys at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 18 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
