CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 septembre 2008

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Poland (no. 31443/96), Having regard to the decisions to strike the applications Wolkenberg and Others v. Poland (no. 50003/99) and Witkowska-Toboła v. Poland (no.   11208/02) out of the Court's list of cases, Having deliberated, decides as follows: THE FACTS The applicant, Mr Mieczysław Czerniawski, was a Polish national who was born in 1932 and lived in Ostróda. On 10 October 2004 the applicant's children, Mrs Alicja Czerniawska and Mr Bogdan Czerniawski, informed the Court that the applicant had died on 21 March 2000. They stated that they wished to continue the proceedings before the Court in their late father's stead. The late applicant and, subsequently, his children were represented before the Court by Mr H. Tumasz, a lawyer practising in Olsztyn. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Background Before the Second World War the applicant's family owned real property, including a farm and agricultural land, in the eastern provinces of pre-war Poland, the so-called “Borderlands” ( Kresy ). Those regions included large areas of present-day Belarus and Ukraine and territories around Vilnius in what is now Lithuania. In September 1939 the regions were invaded by the USSR. Following the end of the war, when the Polish eastern border was redrawn westwards and fixed along the Bug River, the Borderlands acquired the name of the “territories beyond the Bug River” ( ziemie zabużańskie ). According to the applicant, in 1947 his father, a former soldier of the Polish pre-war army who had fought in the Russo-Polish War (1919-21), left the property in fear that he might be detained by the Soviets and went into hiding. On an unspecified date in 1948, after the death of the applicant's mother, the farm and land were taken over by the Soviet authorities and allocated to a local kolkhoz. On 16 June 1957   the applicant was repatriated from the territory of the Lithuanian Socialist Soviet Republic to Poland under the provisions of the Agreement between the Government of the Polish People's Republic and the Government of the Union of Soviet Socialist Republics on the term and procedure for further repatriation of persons of Polish nationality from the USSR ( Umowa miedzy Rządem Polskiej Rzeczpospolitej Ludowej a Rządem Związku Socjalistycznych Republik Radzieckich w sprawie terminu i trybu dalszej repatriacjiz ZSRR osób narodowości polskiej ). A more detailed account of the historical background, other related treaties and the relevant laws can be found in the Court's judgment in the pilot case of Broniowski v.   Poland (see, in particular, Broniowski v. Poland [GC], no. 31443/96, ECHR 2004-V, §§ 10-12 and 39-45). 2.     The applicant's attempts to recover compensation On 7 October 1965 the applicant's father died in the Lithuanian Soviet Socialist Republic. On 30 August 1993 the Ostróda District Court ( Sąd Rejonowy ) gave a decision declaring that the applicant had acquired the whole of the agricultural property left by his late parents in Lithuania. On 25 October 1995 the Olsztyn Regional Court ( Sąd Wojewódzki ) gave a declaratory judgment stating that the applicant's father had owned agricultural property in the territories beyond the Bug River. On 16 May 1996 the applicant asked the Ostróda District Office ( Urząd Rejonowy ) to enable him to acquire State property in compensation for the property abandoned in the territories beyond the Bug River. On 30 May 1996 the authorities informed him that his claim had been entered in the relevant register as claim no. 153 but its realisation depended on the adoption of future measures by Parliament in respect of Bug River claims. In March 1997 the applicant obtained a valuation report, which estimated the value of the Bug River property at 760,155 Polish zlotys (PLN). The applicant's subsequent attempts to acquire State property were unsuccessful. The only possibility of enforcing the claim was to participate in competitive bids for the sale of State property. However, the State authorities throughout Poland officially acknowledged the acute shortage of State-owned land designated for the realisation of the Bug River claims. This fact and the fact that at the material time it was the authorities' common practice to desist from organising auctions for Bug River claimants or to openly deny them the opportunity to enforce their entitlement through the statutory bidding procedure was established by the Court in the Broniowski judgment (see Broniowski , cited above, §§ 48-61, 69-87 and 168-176). On 10 April 2006 the Office of the Warmińsko-Mazurski Governor ( Urząd Wojewódzki ) informed the applicant that after the entry into force of the Law on the realisation of the right to compensation for property left beyond the present borders of the Polish State ( Ustawa o realizacji prawa do rekompensaty z tytułu pozostawienia nieruchomości poza obecnymi granicami państwa polskiego ) (“the July 2005 Act”) the competence to handle Bug River claims had been transferred to governors. Accordingly, the Mayor of the Ostróda District ( Starosta ) referred the applicant's case to the Warmińsko-Mazurski Governor ( Wojewoda ). On 18 January 2008 the applicant's children initiated proceedings under the July 2005 Act in order to obtain compensation for the Bug River property. The proceedings are pending. B.     Relevant domestic law and practice A detailed description of the relevant domestic law and practice concerning the Bug River property are set out in the judgments delivered by the Court in the pilot case of Broniowski v. Poland (see Broniowski v.   Poland (merits) , cited above §§ 39-120; and Broniowski v. Poland (friendly settlement) [GC], no. 31443/96, §§ 14-30, ECHR 2005-IX. The operation of the compensation scheme introduced by the July 2005 Act is described in the Court's decisions given in the cases of Wolkenberg and Others v. Poland (dec.) no. 50003/99, 4 December 2007, §§ 18-23, ECHR 2007-...; and Witkowska-Toboła v. Poland (dec.) no. 11208/02, 4   December 2007, §§   22 ‑ 27. COMPLAINT The applicant in essence complained about the State's continued failure to secure the implementation of his right to compensation for the Bug River. The applicant's children also complained about the reduction of their compensatory entitlement to 20% of the original property's current value by virtue of the July 2005 Act. They alleged a violation of Article   1 of Protocol No.   1 to the Convention. THE LAW A.     The standing of the late applicant's children The applicant, Mr Mieczysław Czerniawski, died after he had lodged his application with the Convention institutions. His children confirmed to the Court that they wished to continue the Convention proceedings in his stead. The Court, having regard to its established case-law on the matter, concludes that they have standing to pursue the application in his stead. B.     Application of the pilot-judgment procedure The present case, like some 190 similar cases currently on the Court's docket, had been examined in accordance with the pilot-judgment procedure following the judgment given by the Court in the Broniowski case (see Broniowski (merits) , cited above §§ 189 et seq.). The applicants' complaint originated in the same structural shortcoming found to have been at the root of the Court's finding of a violation of Article 1 of Protocol No. 1 in the pilot case and defined as “a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the failure to set up an effective mechanism to implement the “right to credit” of Bug River claimants” which “ha[d] affected and remain[ed] capable of affecting a large number of persons” (ibid., see also the third operative provision of the judgment). In that connection, and having regard to the number of persons potentially affected by the systemic violation of the Convention, the Court directed that “the respondent State must, through appropriate legal measures and administrative practice, secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu, in accordance with the principles of protection of property rights under Article 1 of Protocol No.   1” (ibid. § 194 and the fourth operative provision of the judgment). C.     Application of Article 37 of the Convention Article 37 of the Convention reads, in so far as relevant, as follows: “1.     The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... (b)     the matter has been resolved; ... However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires. 2.     The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.” 1.     The parties' submissions (a)     The Government The Government first referred to the facts of the case. They maintained that there were doubts as to whether the applicant had indeed been entitled to compensation for the agricultural property left in Lithuania since his father, apparently the last owner of the property, had not been repatriated to Poland. Moreover, the applicant's parents had not been Polish nationals at the time of their death, whereas Polish nationality was a condition sine qua non for the compensatory entitlement under the July 2005 Act. These issues could be clarified in the proceedings concerning the applicant's claim, which the Government intended to monitor. That being said, the Government relied on the Court's decisions in the cases of Wolkenberg and Others v. Poland and Witkowska-Toboła v. Poland (cited above), in particular the Court's finding that the matter involved in those cases and the remaining Bug River cases had been resolved for the purposes of Article 37 § 1 (b) of the Convention and invited the Court to strike the present application out of its list of cases. (b)     The applicant The applicant's children stressed that they had filed proceedings under the July 2005 Act and had produced unambiguous evidence demonstrating that their father had met all the statutory conditions for the grant of compensation for the Bug River property. They asked the Court to continue its examination of the case, submitting that the reduction of their compensatory entitlement to a mere 20% of the original property's value amounted to a disproportionate interference with their accrued property rights and could not be justified by any compelling reasons. They invited the Court to find a violation of Article 1 of Protocol No. 1 to the Convention. 2.     The Court's assessment In the cases of Wolkenberg and Others v. Poland and Witkowska ‑ Toboła v. Poland the Court, having regard to the general compatibility of the compensation scheme introduced by the July 2005 Act with the principles of protection of property rights, in particular with the principles relating to compensation and to the effective functioning of that Act in practice, as well as to the availability of domestic remedies enabling Bug River claimants to recover compensation for any past material or non ‑ material prejudice suffered as a result of the previous defective operation of the domestic legislation, was satisfied that the issue giving rise to the Bug River cases had been resolved for the purposes of Article 37 § 1 of the Convention. The Court held that the procedures under the July 2005 Act had provided the applicants and other Bug River claimants with relief at domestic level which made its further examination of their applications and of other similar applications no longer justified. In consequence and finding no special circumstances regarding respect for human rights that would require the continued examination of the cases by virtue of Article 37 § 1 in fine , the Court decided to strike the applications out of its list of cases (see Wolkenberg and Others v. Poland , cited above, §§ 60-77; and Witkowska ‑ Toboła v. Poland , cited above, §§ 62-79). Having regard to the circumstances of the present case and to the fact that it is open to the applicant's heirs to avail themselves of the compensation scheme introduced by the July 2005 Act, the Court finds no reason justifying its departure from the conclusion reached in the above ‑ mentioned cases. Accordingly, the application should be struck out of the Court's list of cases. For these reasons, the Court unanimously Decides to strike the application out of its list of cases.   Lawrence Early   Nicolas Bratza   Registrar   President