CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 22 juin 2004

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margin-bottom:12pt; text-align:center; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }                   CASE OF BRONIOWSKI v. POLAND   (Application no. 31443/96)                     JUDGMENT       STRASBOURG   22 June 2004     In the case of Broniowski v. Poland, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Mr   L. Wildhaber , President ,   Mr   C.L. Rozakis ,   Mr   J.-P. Costa ,   Mr   G. Ress ,   Sir   Nicolas Bratza ,   Mrs   E. Palm ,   Mr   L. Caflisch,   Mrs   V. Strážnická,   Mr   V. Butkevych,   Mr   B. Zupančič,   Mr   J. Hedigan,   Mr   M. Pellonpää,   Mr   A.B. Baka,   Mr   R. Maruste,   Mr   M. Ugrekhelidze,   Mr   S. Pavlovschi ,   Mr   L. Garlicki , judges , and Mr P.J. Mahoney , Registrar , Having deliberated in private on 15 October 2003 and 26 May 2004, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 31443/96) against the Republic of Poland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Jerzy Broniowski (“the applicant”), on 12 March 1996. Having been designated before the Commission by the initials J.B., the applicant subsequently agreed to the disclosure of his name. 2.     The applicant, who had been granted legal aid, was represented by Mr   Z. Cichoń, a lawyer practising in Cracow, and Mr W. Hermeliński, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agents, Mr K. Drzewicki and subsequently Mr   J.   Wołąsiewicz, both of the Ministry of Foreign Affairs. 3.     The applicant alleged, in particular, a breach of Article 1 of Protocol   No. 1 in that his entitlement to compensation for property that his family had had to abandon in the so-called “territories beyond the Bug River” had not been satisfied. 4.     The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.     The application was allocated to the Fourth Section. On 26 March 2002 a Chamber of that Section, composed of Sir Nicolas Bratza, President, Mr M. Pellonpää, Mrs E. Palm, Mr J. Makarczyk, Mrs   V.   Strážnická, Mr R. Maruste and Mr S. Pavlovschi, judges, and Mr   M.   O'Boyle, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72 of the Rules of Court). On the same day the Chamber decided that all similar applications pending before the Court should be allocated to the Fourth Section and their examination adjourned until the Grand Chamber had delivered its judgment in the present case. 6.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 7.     By a decision of 19 December 2002 [1] , following a hearing on admissibility and the merits (Rule 54 § 3), the Court declared the application admissible. 8.     The applicant and the Government each filed observations on the merits (Rule 59 § 1). Subsequently, the parties replied in writing to each other's observations. The applicant also submitted his claims for just satisfaction and the Government made their initial comments on that matter. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The applicant is a Polish national who was born in 1944 and lives in Wieliczka, Małopolska Province, in Poland. A.     Historical background 10.     The eastern provinces of pre-war Poland were (and in dated usage still are) called “Borderlands” (“ Kresy ”). They included large areas of present-day Belarus and Ukraine and territories around Vilnius in what is now Lithuania. Later, when after the Second World War Poland's eastern border was fixed along the Bug River (whose central course formed part of the Curzon line), the “Borderlands” acquired the name of “territories beyond the Bug River” (“ ziemie zabużańskie ”). Those regions had been invaded by the USSR in September 1939. 11.     Following agreements concluded between the Polish Committee of National Liberation ( Polski Komitet Wyzwolenia Narodowego ) and the former Soviet Socialist Republics of Ukraine (on 9 September 1944), Belarus (on 9 September 1944) and Lithuania (on 22 September 1944) (“the Republican Agreements” – “ umowy republikańskie ”), the Polish State took upon itself the obligation to compensate persons who were “repatriated” from the “territories beyond the Bug River” and had to abandon their property there. Such property is commonly referred to as “property beyond the Bug River” (“ mienie zabużańskie ”). 12.     The Polish government estimated that from 1944 to 1953 some 1,240,000 persons were “repatriated” under the provisions of the Republican Agreements. At the oral hearing, the parties agreed that the vast majority of repatriated persons had been compensated for loss of property caused by their repatriation. In that connection, the Government also stated that, on account of the delimitation of the Polish-Soviet State border – and despite the fact that Poland was “compensated” by the Allies with former German lands east of the Oder-Neisse line – Poland suffered a loss of territory amounting to   19.78%. B.     The circumstances of the case 13.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Facts before 10 October 1994 14.     After the Second World War, the applicant's grandmother was repatriated from Lwów (now Lviv in Ukraine). On 19 August 1947 the State Repatriation Office ( Państwowy Urząd Repatriacyjny ) in Cracow issued a certificate attesting that she had owned a piece of real property in Lwów and that the property in question consisted of approximately 400 sq. m of land and a house with a surface area of 260   sq. m. 15.     On 11 June 1968 the Cracow District Court ( Sąd Rejonowy ) gave a decision declaring that the applicant's mother had inherited the whole of her late mother's property. 16.     On an unknown later date the applicant's mother asked the mayor of Wieliczka to enable her to purchase the so-called right of “perpetual use” ( prawo użytkowania wieczystego) of land owned by the State Treasury ( see also paragraph 66 below). 17.     In September 1980 an expert from the Cracow Mayor's Office made a report assessing the value of the property abandoned by the applicant's grandmother in Lwów. The actual value was estimated at 1,949,560 old Polish zlotys (PLZ) but, for the purposes of compensation due from the State, the value was fixed at PLZ 532,260. 18.     On 25 March 1981 the mayor of Wieliczka issued a decision enabling the applicant's mother to purchase the right of perpetual use of a plot of 467 sq. m situated in Wieliczka. The fee for the right of perpetual use was PLZ 392 per year and the duration was set at a minimum of forty and a maximum of ninety-nine years. The total fee for use, which amounted to PLZ 38,808 (PLZ 392 x 99 years) was offset against the compensation calculated by the expert in September 1980. In June 2002 an expert commissioned by the government established that the value of this transaction corresponded to 2% of the compensation to which the applicant's family was entitled (see also paragraph 35 below). 19.     The applicant's mother died on 3 November 1989. On 29 December 1989 the Cracow District Court gave a decision declaring that the applicant had inherited the whole of his late mother's property. 20.     In 1992, on a date that has not been specified, the applicant sold the property that his mother had received from the State in 1981. 21.     On 15 September 1992 the applicant asked the Cracow District Office ( Urząd Rejonowy ) to grant him the remainder of the compensation for the property abandoned by his grandmother in Lwów. He stressed that the value of the compensatory property received by his late mother had been significantly lower than the value of the original property. 22.     In a letter of 16 June 1993, the town planning division of the Cracow District Office informed the applicant that his claim had been entered in the relevant register under no. R/74/92. The relevant part of that letter read as follows: “We would like to inform you that at present there is no possibility of satisfying your claim. ... Section 81 of the Land Administration and Expropriation Act of 29   April 1985 [ Ustawa o gospodarce gruntami i wywłaszczaniu nieruchomości [2] ] became, for all practical purposes, a dead letter with the enactment of the Local Self-Government Act of 10 May 1990. [The enactment of that Act] resulted in land being transferred from the [Cracow branch of the] State Treasury to the Cracow Municipality. Consequently, the Head of the Cracow District Office who, under the applicable rules, is responsible for granting compensation, has no possibility of satisfying the claims submitted. It is expected that new legislation will envisage another form of compensation. We should accordingly inform you that your claim will be dealt with after a new statute has determined how to proceed with claims submitted by repatriated persons.” 23.     On 14 June 1994 the Cracow Governor's Office ( Urząd Wojewódzki ) informed the applicant that the State Treasury had no land for the purposes of granting compensation for property abandoned in the territories beyond the Bug River. 24.     On 12 August 1994 the applicant filed a complaint with the Supreme Administrative Court ( Naczelny Sąd Administracyjny ), alleging inactivity on the part of the government in that it had failed to introduce in Parliament legislation dealing with claims submitted by repatriated persons. He also asked for compensation in the form of State Treasury bonds. 2.     Facts after 10 October 1994 (a)     Events that took place up to 19 December 2002, the date on which the Court declared the application admissible 25.     On 12 October 1994 the Supreme Administrative Court rejected the applicant's complaint. It found no indication of inactivity on the part of the State authorities because “the contrary transpired from the fact that the applicant had received replies from the Cracow District Office and the Cracow Governor's Office”. 26.     On 31 August 1999, in connection with the entry into force of the Cabinet's Ordinance of 13 January 1998 (see also paragraphs 51-52 below), the Cracow District Office transmitted the applicant's request of 15   September 1992 for the remainder of the compensation, and the relevant case file, to the mayor ( Starosta ) of Wieliczka. Meanwhile, following a reform of the local administrative authorities, the former Cracow Province ( Województwo Krakowskie ) – in which the Wieliczka district is situated – had been enlarged and renamed “Małopolska Province” ( Województwo Małopolskie ). 27.     On 11 April 2002 the mayor of Wieliczka organised a competitive bid for property situated in Chorągwica being sold by the State Treasury. The bid was entered by seventeen persons, all of whom were repatriated persons or their heirs. The applicant did not participate in the auction. 28.     On 5 July 2002 the Ombudsman ( Rzecznik Praw Obywatelskich ), acting on behalf of repatriated persons, made an application under Article   191 of the Constitution, read in conjunction with Article 188, to the Constitutional Court ( Trybunał Konstytucyjny ), asking for legal provisions that restricted the possibility of satisfying their entitlements to be declared unconstitutional (see also paragraphs 50, 55, 60 and 70-71 below). (b)     Events that took place on and after 19 December 2002 29.     On 19 December 2002 the Constitutional Court heard, and granted, the Ombudsman's application (see also paragraphs 79-87 below). The Constitutional Court's judgment took effect on 8 January 2003. 30.     On 8 January 2003 the Military Property Agency issued a communiqué, which was put on its official website [3] and which read, in so far as relevant, as follows: “The Constitutional Court, in its judgment of 19 December 2002, declared that the provisions relating to the realisation of the Bug River claims by, inter alia , the Military Property Agency were unconstitutional. However, the implementation of the court's judgment requires that the Land Administration Act 1997, the Law of 30 May 1996 on the administration of certain portions of the State Treasury's property and the Military Property Agency, as well as the Law of 25 May 2001 on the reconstruction, technical modernisation and financing of the Polish army in the years 2001-06, be amended. It is also necessary to amend the Law of 15 February 1995 on income tax from legal persons, in respect of the proceeds received by the agency upon satisfying the Bug River claims. In the circumstances, the Military Property Agency will be able to organise auctions for the sale of immovable property after the amendments to the existing legislation have been made. Auctions will be advertised in the press ... and on the [agency's] website.” According to information made available on the agency's website, in 2002 it had in its possession two categories of property. The first was immovable property no longer used for any military purposes, which was normally sold at auctions. It comprised 13,800 hectares of land and 4,500 buildings with a total surface area of 1,770,000 sq. m. This property included military airports, testing grounds, rifle ranges, hospitals, barracks, offices, recreation and sports centres, buildings designated for social and cultural activities and various other buildings (fuelling stations, workshops, warehouses, etc.). The second category was property that was only temporarily not used by the army. It comprised 650 hectares of land and buildings with a total surface area of 100,000 sq. m. 31.     On 8 January 2003 the State Treasury's Agricultural Property Agency ( Agencja Własności Rolnej Skarbu Państwa ), a body which at that time administered the State Treasury's Agricultural Property Resources ( Zasoby Własności Rolnej Skarbu Państwa ) (see also paragraph 91 below), issued a similar communiqué, which was put on its official website [4] and which read as follows: “On 8 January 2003 the Constitutional Court's judgment of 19 December 2002 concerning the constitutionality of the provisions governing compensation for the Bug River property came into force. As a consequence of the Court's judgment, it is necessary to amend the provisions relating to the land administration. The judgment does not by itself create a new legal regime and cannot constitute a basis for offsetting the value of the property abandoned outside the State's border against the price of the State Treasury's agricultural property. The principles, conditions and procedure in that respect should therefore be determined. Such actions have already been taken by the Office for Dwellings and Town Development and the Ministry for the Treasury. In the circumstances, this agency will desist from organising auctions for the sale of immovable property held among its resources, except for small plots of agricultural property. The agency's decision is inspired by the need to ensure that the Bug River claimants have their claims satisfied on conditions that are equal for all claimants.” 32.     By the end of 2003 neither of the above-mentioned agencies had resumed auctions. On the date of adoption of this judgment, the Military Property Agency website still contained the – unchanged – communiqué of 8   January 2003 on the suspension of auctions. On 2 February 2004, two days after the entry into force of new legislation on the Bug River claims (see paragraphs 114-19 below), the Agricultural Property Agency ( Agencja Nieruchomości Rolnych ), a body which had in the meantime replaced the State Treasury's Agricultural Property Agency (see also paragraph 91 below) removed the communiqué of 8 January 2003 from its website and added an announcement entitled “Information for the Bug River people” (“ Informacja dla zabużan ”), providing a detailed explanation of the operation of the new statute. 33.     Meanwhile, in the spring and summer of 2003, during the process of preparing a bill designed to settle the “Bug River claims” (“ roszczenia zabużańskie ”; hereafter “the Government Bill” – see also paragraphs 111-13 below), the government estimated the number of claimants and the value of the claims. According to the government, there were 4,120 registered claims, of which 3,910 were verified and regarded as meeting the statutory conditions. The registered claims were valued at three billion new Polish zlotys (PLN). There were also 82,740 unverified claims pending registration, of which 74,470 were likely to be registered. The anticipated value of the unverified claims was PLN 10.45 billion. The anticipated total number of entitled persons was 78,380. As the parliamentary debate over the Government Bill – a debate which was widely discussed throughout the Polish media – progressed, the number of Bug River claims started to grow, since many new claims were being registered. 34.     The statistical reports prepared by the government, in particular the Ministry for the Treasury ( Ministerstwo Skarbu Państwa ) and the Ministry for Infrastructure ( Ministerstwo Infrastruktury ), have to date not addressed the question of how many of the Bug River claimants have ever obtained any compensation and, if so, whether it was full or partial, and how many of them have not yet received anything at all. The idea of keeping a register of Bug River claims emerged in the course of the preparation of the Government Bill, and such a register is to be kept in the future. Nevertheless, the need to collect the relevant data had already been perceived by the Minister for Infrastructure in July 2002 [5] , when he replied to a question by J.D., a member of parliament, concerning, in the MP's words, “the final discharge of the Polish State's obligations towards persons who, after the Second World War, had abandoned their immovable property beyond the eastern border”. In his reply, the Minister stated, inter alia : “In reply to the question relating to the number of unsatisfied claims, it has to be said that it was estimated by the Cabinet's Office [ Urząd Rady Ministrów ] at the beginning of the 1990s that there were about 90,000 [such claims]. At present it is very difficult to make such an estimation. ... In practice, every legal successor [of a Bug River claimant] could, and can, obtain a certificate – at present, a decision – [confirming the right to] a share in the abandoned property. What should be the criteria according to which the number of satisfied and unsatisfied claims is to be estimated? Should it be the number of applications made, including [several] applications by legal successors regarding one property abandoned by one owner (testator), or should it be the number of properties abandoned beyond the State's borders? It is also difficult to estimate the number of persons whose entitlement has been satisfied, especially as the entitlement can be enforced throughout the country and it often happens that it is satisfied partially in different provinces until it has been fully settled. This situation creates conditions in which the entitled persons may abuse their rights – a fact of which governors and mayors have notified us. They accordingly suggest that a register ... of the certificates issued confirming the entitlement to ... compensatory property be kept. At present, however, there is no single, comprehensive system for the registration of certificates and decisions entitling claimants to [compensatory property]. Accordingly, the answer to the deputy's question as to the form in which the [Bug River claims] are to be satisfied and as to the possible legal solutions depends on reliable information on the number of unsatisfied claims. If it emerged that the number was significant and that not all claims could be satisfied under the applicable laws, other legislative solutions would have to be found – which, however, would be particularly difficult in view of the economic and financial problems of the State.” 35.     On 12 June 2003 the Government produced a valuation report prepared by an expert valuer commissioned by them. That report had been drawn up on 14 June 2002. The value of the property that the applicant's grandmother had had to abandon was estimated at PLN 390,000. The expert stated that the applicant's family had so far received 2% of the compensation due. 36.     On 28 October 2003 the mayor of Wieliczka organised a competitive bid for property situated in Chorągwica and Niepołomice, in the Małopolska Province, that was being sold by the State Treasury. The reserve prices were PLN 150,000 and PLN 48,000 respectively. The bid was entered by several Bug River claimants. The first property was sold for PLN 900,000, the second for PLN 425,000. The applicant did not participate in those auctions. 37.     On 30 January 2004, by virtue of the Law of 12 December 2003 on offsetting the value of property abandoned beyond the present borders of the Polish State against the price of State property or the fee for the right of perpetual use ( Ustawa o zaliczaniu na poczet ceny sprzedaży albo opłat z tytułu użytkowania wieczystego nieruchomości Skarbu Państwa wartości nieruchomości pozostawionych poza obecnymi granicami Państwa Polskiego – “the December 2003 Act”), the State's obligations towards persons who, like the applicant, have obtained some compensatory property under the previous statutes are considered to have been discharged (see also paragraph 116 below). 38.     On 30 January 2004 fifty-one members of parliament from the opposition party, “Civic Platform” ( Platforma Obywatelska ), applied to the Constitutional Court, challenging a number of the provisions of the December 2003 Act (see also paragraph 120 below). II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Honouring of the international treaty obligation to compensate repatriated persons 39.     The Republican Agreements (see also paragraph 11 above) were each drafted in a similar way. Article 3 of each Agreement laid down rules concerning both the kind and the amount of property that repatriated persons could take with them upon evacuation, and obliged the Contracting Parties to return to them the value of the property which they had had to abandon. 40.     Article 3 of the Agreement of 9 September 1944 between the Polish Committee of National Liberation and the government of the Ukrainian Soviet Socialist Republic on the evacuation of Polish citizens from the territory of the Ukrainian Soviet Socialist Republic and of the Ukrainian population from the territory of Poland ( Układ pomiędzy Polskim Komitetem Wyzwolenia Narodowego a Rządem Ukraińskiej Socjalistycznej Republiki Rad dotyczący ewakuacji obywateli polskich z terytorium U.S.R.R. i ludności i ukraińskiej z terytorium Polski – “the relevant Republican Agreement”) provided, in so far as relevant, as follows: “2.     Evacuated persons shall be allowed to take with them clothing, footwear, linen, bedding, foodstuffs, household goods, farming inventory stock, harnesses and other articles for household and agricultural use, up to a total weight of 2 metric tonnes per family, as well as any cattle and poultry belonging to the evacuated farm. 3.     Persons with specialised professions, such as workmen, craftsmen, doctors, artists and scholars, shall be accorded the right to take with them objects needed in the exercise of their professions. 4.     The following may not be taken upon evacuation: (a)     cash, banknotes and gold and silver coins of any type, with the exception of Polish banknotes to a maximum amount of 1,000 zlotys per person, or Soviet currency to a maximum amount of 1,000 roubles per person; (b)     gold and platinum in alloy, powder or scrap form; (c)     precious stones in unworked form; (d)     works of art and antiques whenever they constitute a collection, or even as individual items, unless they are the evacuated person's family property; (e)     firearms (with the exception of hunting rifles) and military equipment; (f)     photographs (other than personal photographs), charts and maps; (g)     automobiles and motorcycles; (h)     furniture, whether by rail or by motor vehicle, because of the transport problems caused by the war. ... 6.     The value of movable belongings left behind upon evacuation, and also of immovable property, shall be returned to the evacuated person on the basis of insurance valuations, in accordance with the applicable laws in the State of Poland and in the Ukrainian Soviet Socialist Republic, as the case may be. In the absence of an insurance valuation, the value of movable and immovable property shall be assessed by the Plenipotentiaries and Representatives of the Parties. The Contracting Parties shall undertake to ensure that town and village houses vacated as a result of resettlement are made available to resettled persons on a priority basis.” 41.     On 21 July 1952 the government of the Republic of Poland and the governments of the Union of Soviet Socialist Republics, the Ukrainian Soviet Socialist Republic, the Belarus Soviet Socialist Republic and the Lithuanian Soviet Socialist Republic concluded an agreement on the mutual settlement of accounts in connection with the evacuation of population groups and the delimitation of the Polish-Soviet State border ( Umowa między Rządem Rzeczypospolitej Polskiej, z jednej strony i Rządem Związku Socjalistycznych Republik Radzieckich, Rządem Ukraińskiej Socjalistycznej Republiki Radzieckiej, Rządem Białoruskiej Socjalistycznej Republiki Radzieckiej i Rządem Litewskiej Socjalistycznej Republiki Radzieckiej, z drugiej strony, o wzajemnych rozliczeniach, wynikłych w związku z ewakuacją ludności i delimitacją polsko-radzieckiej granicy państwowej – “the 1952 Pact”). Article 2 of the pact provided: “With a view to the complete and definitive mutual settlement of accounts for movable and immovable property, agricultural products and seed left on the territories of the Republic of Poland and of the USSR by persons evacuated and resettled in connection with the delimitation of the Polish-Soviet State border, the Government of the Republic of Poland undertake to pay the Government of the USSR the sum of 76   (seventy-six) million roubles.” 42.     From 1946 to the present day, Polish law has provided that persons repatriated from the territories beyond the Bug River are entitled to have the value of the property abandoned as a result of the Second World War offset either against the fee for the right of perpetual use or against the price of immovable property purchased from the State Treasury. 43.     That provision has been repeated in several statutes, starting with the Decree of 6 December 1946 on the transfer from the State of non-agricultural property in the Regained Territories and the former Free City of Gdańsk ( Dekret o przekazywaniu przez Państwo mienia nierolniczego na obszarze Ziem Odzyskanych i b. Wolnego Miasta Gdańska ). The so-called “Regained Territories” ( “Ziemie Odzyskane ”) were former German territories east of the Oder-Neisse Line, with which – upon Stalin's proposal – the victorious Allies compensated the Poles for the “territories beyond the Bug River” taken away from them by the former USSR. Under the policy pursued at that time by the authorities, the “Regained Territories” and Gdańsk, after the expulsion of Germans residing there, were intended for the accommodation of Polish citizens “repatriated” from “beyond the Bug River”, that is, from the territories beyond the Curzon line. The repatriated persons had priority in purchasing land. 44.     Further decrees and statutes were enforced between 1952 and 1991. In the 1990s, however, the authorities started to consider the possibility of enacting a single statute dealing with all forms of restitution of property, including claims for compensation for property abandoned by repatriated persons (see also paragraphs 62-65 below). 45.     Ultimately, a statute exclusively relating to the Bug River claims (the December 2003 Act) came into force on 30 January 2004 (see also paragraph 37 above and paragraphs 114-19 below).   B.     The Land Administration and Expropriation Act of 29 April 1985 and the related ordinance 1.     The 1985 Act 46.     From 29 April 1985 to 1 January 1998 the rules governing the administration of land held by the State Treasury and municipalities were laid down in the Land Administration and Expropriation Act of 29 April 1985 (“the Land Administration Act 1985”). Section 81 of this Act dealt with entitlement to compensation for property abandoned in the territories beyond the Bug River. The relevant parts of the version applicable from 10 October 1994 to 31 December 1997 read as follows: “(1)     Persons who, in connection with the war that began in 1939, abandoned real property in territories which at present do not belong to the Polish State and who, by virtue of international treaties concluded by the State, are to obtain equivalent compensation for the property they abandoned abroad, shall have the value of the real property that has been abandoned offset either against the fee for the right of perpetual use of land or against the price of a building plot and any houses, buildings or premises situated thereon. ... (4)     In the event of the death of an owner of real property abandoned abroad, the entitlement referred to in subsection (1) shall be conferred jointly on all his heirs in law or on the one [heir] designated by the entitled persons. (5)     The offsetting of the value of real property abandoned abroad, as defined in subsection (1), shall be effected upon an application from a person entitled to it ...” 2.     The 1985 Ordinance 47.     Detailed rules were set out in the Cabinet's Ordinance of 16   September 1985 (as amended) on the offsetting of the value of real property abandoned abroad against the fees for perpetual use or against the price of a building plot and buildings situated thereon ( Rozporządzenie Rady Ministrów w sprawie zaliczania wartości mienia nieruchomego pozostawionego za granicą na poczet opłat za użytkowanie wieczyste lub na pokrycie ceny sprzedaży działki budowlanej i położonych na niej budynków – “the 1985 Ordinance”). The relevant part of paragraph 3 of the 1985 Ordinance provided as follows: “If the value of the property [abandoned abroad] exceeds the price of the real property that has been sold ..., the outstanding amount can be offset against the fee for the right of perpetual use, or against the price of an industrial or commercial plot of land and any commercial or small-business establishments, buildings designated for use as workshops or ateliers, holiday homes or garages situated thereon.” Paragraph 5 provided that a first-instance body of the local State administration that was competent to deal with town and country planning should issue the decisions on offsetting the value of property abandoned abroad. Paragraph 6 laid down detailed rules relating to the valuation of such property. C.     The Land Administration Act of 21 August 1997 and the related ordinance 1.     The Land Administration Act 1997 48.     On 1 January 1998 the Land Administration Act 1985 was repealed and the Land Administration Act of 21 August 1997 ( Ustawa o gospodarce nieruchomościami – “the Land Administration Act 1997”) came into force. The obligation to compensate repatriated persons was laid down in section 212 [6] , which was phrased in similar terms to section 81 of the repealed 1985 Act. The relevant part of section 212 provided as follows: “(1)     Persons who, in connection with the war that began in 1939, abandoned real property in territories which at present do not belong to the Polish State and who, by virtue of international treaties concluded by the State, were to obtain equivalent compensation for the property abandoned abroad, shall have the value of the real property that has been abandoned offset against the fee for the right of perpetual use of land or against the price of a building plot and the State-owned buildings or premises situated thereon. (2)     If the value of the real property that has been abandoned [abroad] exceeds the value of real property acquired by way of the equivalent compensation referred to in subsection (1), the outstanding amount may be offset against the fees for perpetual use, or against the price of a plot of land and a building designated for commercial purposes, or for use as an atelier, holiday home or garage, or of a plot of land designated for any of the above purposes. ... (4)     The offsetting of the value of real property defined in subsection (1) shall be effected in favour of the owner of the property in question or a person designated by him who is his heir at law. (5)     In the event of the death of the owner of real property abandoned abroad, the entitlements referred to in subsection (1) shall be conferred jointly on all his heirs or on the one [heir] designated by the entitled persons.” 49.     However, section 213 stated: “Sections 204-12 of this Law shall not apply to property held by the State Treasury's Agricultural Property Resources, unless the provisions relating to the administration of those Resources state otherwise.” 50.     On 5 July 2002 the Ombudsman put the issue of the constitutionality of sections 212(1) and 213 of the Land Administration Act 1997 before the Constitutional Court (see also paragraph 28 above and paragraphs 55, 60 and   70-71 below). 2.     The 1998 Ordinance 51.     The procedure for the implementation of section 212 of the Land Administration Act 1997 was laid down in the Cabinet's Ordinance of 13   January 1998 on the procedure for offsetting the value of real property abandoned abroad against the price of a title to real property or against the fees for perpetual use, and on the methods of assessing the value of such property (as amended) ( Rozporządzenie Rady Ministrów w sprawie sposobu zaliczania wartości nieruchomości pozostawionych za granicą na pokrycie ceny sprzedaży nieruchomości lub opłat za użytkowanie wieczyste oraz sposobu ustalania wartości tych nieruchomości – “the 1998 Ordinance”). 52.     Paragraph 4(1) of the 1998 Ordinance provided that the offsetting in question had to be effected on an application from the entitled person. The application had to be made to the mayor of the district in which the person resided. The mayor was to keep the register of claims submitted by repatriated persons. Pursuant to paragraph 5(1), the mayor had, within thirty days, to issue a decision determining the value of the real property that had been abandoned abroad. Once such a decision was taken, the authorities responsible for handling claims submitted by repatriated persons could not refuse to effect the offsetting (paragraph 6). In practice, the acquisition of title to compensatory property or of the right of perpetual use could be enforced only through participation in a competitive bid organised by the relevant public authority. Repatriated persons were not given priority in purchasing land from the State. Transitional provisions, in particular paragraph 12 of the 1998   Ordinance, stated that proceedings that had been initiated under the previous rules and not terminated were to be governed by this new Ordinance. D.     The Local Self-Government Act of 10 May 1990 53.     A very significant reduction in the State Treasury's land resources was brought about by legislative measures aimed at reforming the administrative structure of the State. The Local Self-Government Act (introductory provisions) of 10 May 1990 ( Przepisy wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych – “the 1990 Act”), which came into force on 27 May 1990, and other related statutes enacted at that time, re-established municipalities and transferred to them powers that had previously been exercised solely by the local State administration. That included the relinquishment of control over public land and the transfer of the ownership of most of the State Treasury's land to municipalities. Pursuant to section 5(1) of the 1990 Act, ownership of land which had previously been held by the State Treasury and which was within the administrative territory of a municipality was transferred to the municipality. As the Bug River claimants could only enforce their entitlement vis-à-vis the State property and not that of local self-government entities, this resulted in a shortage of land for satisfying those claims. E.     The Law of 19 October 1991 on the administration of the State Treasury's agricultural property (as amended) 54.     Until 19 January 1994, repatriated persons could seek to obtain compensatory property from the State Treasury's Agricultural Property Resources ( Zasoby Własności Rolnej Skarbu Państwa ) under the provisions of the Law of 19 October 1991 on the administration of the State Treasury's agricultural property ( Ustawa o gospodarowaniu nieruchomościami rolnymi Skarbu Państwa – “the 1991 Act”). However, on that date, with the entry into force of the Law of 29 December 1993 on amendments to the Law on the administration of the State Treasury's agricultural property and to other statutes ( Ustawa o zmianie ustawy o gospodarowaniu nieruchomościami rolnymi Skarbu Państwa oraz o zmianie niektórych ustaw – “the 1993   Amendment”), that possibility was excluded. Section 17 of the 1993 Amendment was phrased as follows: “As long as the forms of compensation for loss of property and the rules for the restitution of property to persons who, under section 81 of the Land Administration Act 1985, have applied for the offsetting of the value of real property abandoned abroad in connection with the war that began in 1939, have not been determined in an autonomous statute, no such offsetting shall be effected against the price of property held by the State Treasury's Agricultural Property Resources.” 55.     On 5 July 2002 the Ombudsman put the issue of the constitutionality of section 17 of the 1993 Amendment before the Constitutional Court (see also paragraphs 28 and 50 above and paragraphs 60 and 70-71 below).   F.     The Law of 10 June 1994 on the administration of real property taken over by the State Treasury from the army of the Russian Federation 56.     That law ( Ustawa o zagospodarowaniu nieruchomości Skarbu Państwa przejętych od wojsk Federacji Rosyjskiej – “the 1994 Act”) came into force on 23 July 1994. Pursuant to section 4 read in conjunction with section 16, repatriated persons must be given priority in acquiring such property. 57.     At the oral hearing, the Government admitted that, in reality, the property resources left by the army of the Russian Federation had already been exhausted. G.     The Law of 30 May 1996 on the administration of certain portions of the State Treasury's property and of the Military Property Agency (as amended) 58.     The aforementioned law ( Ustawa o gospodarowaniu niektórymi składnikami mienia Skarbu Państwa oraz o Agencji Mienia Wojskowego – “the 1996 Act”), which came into force on 26 August 1996, deals with the administration of military property belonging to the State, including land, industrial property, hotels, dwellings and commercial premises. The Military Property Agency may organise competitive bids for the sale of real property. 59.     Until 1 January 2002, under the general provisions of the 1996 Act, repatriated persons could seek to obtain compensatory property through participating in such bids. They did not have any priority over other bidders. However, with the entry into force of the Law of 21 December 2001 on amendments to the Law on the organisation and work of the Cabinet and on the powers of ministers, to the Law on the branches of the executive and to other statutes ( Ustawa o zmianie ustawy o organizacji i tr