CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 septembre 2012

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De Gaetano, judges, and Lawrence Early, Section Registrar, Having regard to the above application lodged on 12 January 2005, Having regard to the decision to examine the case simultaneously with   the case of Ogórek v. Poland (no. 28490/03), pursuant to Rule 42   §   2 of   the   Rules of Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS 1.     The application was lodged by five applicants – Henryk Pikielny (“the   first applicant”), Simon Pikielny (“the second applicant”), Yael Star (“the third applicant”), Irit Fenton (“the fourth applicant”) and Ruth Leshem (“the fifth applicant”). The first applicant is a Brazilian national, the second, third and fifth applicant are Israeli nationals. The fourth applicant has dual Israeli and British nationality. They were born in 1928, 1923, 1932, 1937 and 1936 respectively. The first applicant lived in Paris, the second in   Hertzila, the third in Ashdod, the fourth in Haifa, and the fifth in   Tel   Aviv. The first applicant died on 12 June 2010. On 20 October 2010 the   applicant’s wife, Ms Helena Pikielny, expressed the wish to pursue the   application in his stead. The applicants were represented before the Court by Ms   A.   Suchecka ‑ Tarnacka and Mr B. Kordasewicz, lawyers practising in   Warszawa, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms   J.   Chrzanowska, of the Ministry of Foreign Affairs. A.     The circumstances of the case 2.     The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Background 3.     The applicants’ ancestors owned a textile manufacturing factory in   Łódź, Poland, consisting of some 15 various buildings, including wool weaving mills, a plot of land of 6,437 sq. m. and a garden. The factory, which was originally intended for the manufacture of silk scarves, was founded by the first, the second and the fourth applicants’ grandfather, Mojżesz Pikielny, in 1889. 4.     Shortly before the Second World War the factory operated under the   name “Factory of Wool and Cotton Manufactures M. i. T. Pikielni Joint Stock Company” (“ Fabryka Wyrobów Wełnianych i Bawełnianych M.   I   T.   Pikielni Spółka Akcyjna ”) and, following various acquisitions and   transactions, was eventually co-owned by Mojżesz Pikielny and   his   sons – Maks Pikielny (the first and second applicants’ father) and   William Pikielny (the fourth applicant’s father). 5.     Following the outbreak of the Second World War, the factory owners and the applicants’ other relatives were taken by the Nazis to concentration camps or ghettos. The factory was taken over by Germans and throughout the war operated under the Nazi-appointed trustee ( “Treuhender” ). 6.     William Pikielny was killed during a bombing of Łódź in 1939. Mojżesz Pikielny perished in the Warsaw ghetto in 1943. Maks Pikielny and the first and second applicants survived the concentration camps and   returned to Łódź at the end of the war. They found the factory functioning largely as it had been during the Nazi occupation. It was then taken over and managed by the communist authorities. In recognition of   his   former role as   owner and chief executive of the factory Maks Pikielny was designated by the Workers’ Committee as manager of operations. In   fact, he actively managed the business until he and the first and second applicants left Poland for Brazil in June 1946. 2.     Facts before 10 October 1994 7.     On 12 February 1948 the factory was nationalised by virtue of   the   Minister of Light Industry’s ( Minister Przemysłu Lekkiego ) decision   no. 22 (“the 1948 decision”), issued pursuant to section 3(16) of   the Law of   3   January 1946 on the nationalisation of basic branches of the State economy ( Ustawa o przejęciu na własność Państwa podstawowych gałęzi gospodarki narodowej ) (“the 1946 Act”). The decision was published in   the   Cabinet’s Official Gazette ( Monitor Polski ) no. 44 of 30 April 1948. 8.     The former owners were neither notified about the take-over of their property nor were they compensated for it. Throughout the years of the communist regime the factory remained operating, having been transferred by the State Treasury from one State-owned enterprise to another. Finally, in 1963 it was assigned to “ Lodex ”, a State-owned Wool Trade Plant ( Zakłady Przemysłu Wełnianego “Lodex” ). However, the relevant entry recording the owner in the Łódź District Court Land and Mortgage Register had not been amended and the company “M. i T. Pikielny Joint Stock Co.” remained listed as the factory’s owner until the beginning of the 1990s. At around the same time the applicants started to make first attempts to   have the land and factory restored to them or, alternatively, to obtain compensation for its nationalisation. 9.     On 31 May 1991 winding-up proceedings were instituted in respect of   the “Lodex” Wool Trade Plant. In the course of the proceedings, “Lodex” lodged an application with the Łódź District Court for acquisition of the property in question by prescription. The claim was dismissed on   3   March 1992. 10.     Subsequently, the plant’s representatives asked the Łódź District Court to open a new book ( księga wieczysta ) for the property and to make an entry recording the State Treasury as its owner. 11.     On 17 April 1992 the Łódź District Court ordered that the old books and records kept for the property and listing the applicants’ family as   the   owners be closed, that a new book no. 87708 be opened and that the   State Treasury be entered in the Land and Mortgage Register as   the   owner of the property. The applicants appealed against that order. 12.     On 10 December 1993 the Łódź Regional Court dismissed their appeal ( rewizja ). Subsequently, on 30 April 1994, the applicants asked the   Minister of Justice to lodge an extraordinary appeal ( rewizja nadzwyczajna ) against the contested order but their request was to no avail. 13.     In the meantime, on 17 December 1992, the Governor of Łódź ( Wojewoda ) had given a decision declaring that the “ Lodex ” Wool Trade Plant had acquired perpetual use ( użytkowanie wieczyste ) of the land in   question “with ownership of the buildings and machines having been acquired by ‘ Lodex ’ through payment”. The applicants sought to have the   administrative proceedings reopened. On 23   March 1993 the Governor of Łódź refused their application. 3.     Facts after 10 October 1994 [1] 14.     On 14 December 2004, following the applicants’ inquiry into the   possibility of obtaining pecuniary compensation for the nationalised property, the Minister for Economy and Labour ( Minister Gospodarki i   Pracy ) informed them by letter that until that time no laws regulating this matter had been enacted. Admittedly, the 1946 Act in sections   3 and   7   stated that an appropriate body would be set up to deal with such compensation claims and that the relevant rules governing the principles for   payment of compensation would be established. However, the Cabinet had not yet fulfilled that statutory obligation. Accordingly, there was no   body that could be authorised to act in respect of compensation or related matters. The Minister added that it should be assumed that this lacuna would be   removed once Parliament had adopted a law on restitution and   compensation. Currently, the Minister for the State Treasury was   working on the relevant bill and it was likely that that bill would soon become a formal proposal by the Government. Since then, the applicants have not made any further attempts to claim compensation for the nationalised factory before the domestic authorities. B.     Relevant domestic law and practice 1.     The 1946 Act 15.     Following the establishment of the communist regime in Poland nearly all branches of industry, as well as banking, insurance, transport and   commercial companies were taken over by the State under the 1946 Act which, in its section 1, stated the purposes of nationalisation as follows: “     In order to ensure the planned rebuilding of the state economy, the economic sovereignty of the State and to foster the general well-being, the State shall take over ownership of enterprises on the conditions laid down in this law.” Pursuant to section 2(1), only those industrial, mining, transport, banking, insurance and commercial enterprises that belonged to the Third   Reich and the former Free City of Gdańsk, their citizens (except for those of   Polish or other nationality who had been persecuted by the Germans), German and Gdańsk legal persons (except for those set up under public law), companies controlled by German or Gdańsk citizens or administration or those owned by persons who had defected to the enemy were to be taken over by the State without payment of compensation. 16.     Section 3(1) of the 1946 Act (as amended) states that the owners of   the remaining enterprises were to be compensated for their nationalised property. That provision reads, in so far as relevant, as follows: “1.     The State shall compensate [the owners] for taking over ownership of   the   following: A.     Mining and industrial enterprises in the following sectors of State economy: 1)     mines and mining leases subject to mining law; 2)     oil and gas industry, including mines, refineries, gasoline production and other processing plants, gas pipes and synthetic fuel industry; 3)     companies that generate, process, transmit or distribute electricity ...; 4)     companies that generate, process, transmit or distribute gas ...; 5)     water supply companies serving more than one municipality ...; 6)     steelworks and non-ferrous metals smelting plants; 7)     armaments, aviation and explosives industry; 8)     coking plants; 9)     sugar factories and refineries; 10)     industrial distilleries, spirit refineries and vodka production plants; 11)     breweries with an annual output exceeding 15,000 hectolitres; 12)     yeast production plants; 13)     grain plants with a daily output exceeding 15 tons of grain ...; 14)     oil plants with an annual output exceeding 500 tons and all refineries of edible fats; 15)     cold stores; 16)     large and medium textile industry; 17)     printing industry and printing houses; ... B.     Industrial enterprises not listed in subsection “A” if they are capable of   employing in the production more than 50 persons on one shift. ... C. 1)     Transport enterprises (standard gauge and narrow-gauge railways, electric railways and aviation transport enterprises); 2)     communication enterprises (telephone, telegraph and radio enterprises). 17.     Section 7 lays down general principles for compensation to be paid for nationalised property. It states, in so far as relevant, as follows: “1.     The owner of an enterprise whose ownership has been taken over by the State (section 3) shall receive compensation from the State Treasury within one year from the date on which a notice of final determination of the amount of compensation due has been served on him. 2.     Such compensation shall in principle be paid in securities; however, in   exceptional and economically justified cases it may also be paid in cash or other values. 3.     The amount of compensation due shall be determined by special commissions. The persons concerned shall have the right to participate in proceedings before those commissions. If need be and in any case if so requested by the persons concerned, the   commission shall appoint appropriate experts. 4.     The composition of the commissions, the rules for the appointment of their members, the quorum, the rules of procedure before the commissions and rules for   appeals against their decisions shall be determined by an ordinance issued by   the   Cabinet. 5.     The following factors shall be taken into account in determining compensation: a)     general deterioration of the value of State property; b)     net value of the corporate property on the date of nationalisation; c)     deterioration of the value of the enterprise cause by war losses or losses incurred by the enterprise in connection with the war, occupation in the period from 1   September 1939 to the date of nationalisation; d)     value of expenditures made after 1 September 1939; e)     special circumstances affecting the value of the enterprise (concession terms, licenses etc.). 6.     A Cabinet’s ordinance shall determine detailed rules governing the calculation of   compensation, assessment of the circumstances listed in subsection 5 and means of   payment of compensation (subsection 2) and depreciation of securities.” 18.     Pursuant to section 10, the Cabinet and the relevant Ministers shall be entrusted with the implementation of the 1946 Act. However, since 5   February 1946, the date of entry into force of the 1946 Act, until the   present day the Cabinet has not yet issued an ordinance on   the   organisation of the compensation commissions and determination of   compensation referred to in section 7(4) and (6). 2.     The State’s liability in tort (a)     Provisions of the Civil Code applicable from 10 October 1994 to   1   September 2004 19.     Articles 417 et seq. of the Civil Code ( Kodeks cywilny ) provide for   the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows: “1.     The State Treasury shall be liable for damage caused by a State official in   the   performance of the duties entrusted to him.” (b)     Provisions of the Civil Code applicable from 1 September 2004 20.     On 1 September 2004 the Law of 17 June 2004 on amendments to   the Civil Code and other statutes ( Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw ) (“the 2004 Amendment”) entered into force. The relevant amendments were in essence aimed at enlarging the   scope of the State Treasury’s liability in tort under Article   417 of   the   Civil Code – including the addition of a new Article   417 1 and   provision being made for the State’s tortious liability for failure to enact legislation, a concept known as “legislative omission” ( zaniechanie legislacyjne ). 21.     Following the 2004 Amendment, Article 417 1 , in so far as relevant, reads as follows: “4.     If damage has been caused by failure to enact a law [ akt normatywny ] where there is a statutory duty to do so, the incompatibility of the failure to enact that law shall be established by the court dealing with the claim for damages.” However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 applies to   all events and legal situations that subsisted before that date. (c)     Constitutional tort 22.     The concept of the State’s civil liability for a constitutional tort was introduced into the Polish legal order on 17 October 1997, the date of entry into force of the 1997 Polish Constitution. Article 77 § 1 of the Constitution states, in so far as relevant, as follows: “Everyone shall have the right to compensation for any harm done to   him   by   any   act   of a public authority in breach of the law.” (d)     The Supreme Court’s case-law on compensation for legislative omission in   nationalisation cases (i)     The 2005 Resolution (no. III CZP 82/05) 23.     In its resolution of 24 November 2005 (“the 2005 Resolution”), the   Supreme Court ( Sąd Najwyższy ), sitting as a bench of three judges, dealt with the following legal questions submitted to it by the Warsaw Court of   Appeal ( Sąd Apelacyjny ): “     Is the State Treasury liable for damage caused by failure to enact a law [ akt   normatywny ] if the duty to enact that law, laid down in section 7(4) and (6) of   [the 1946 Act] was not fulfilled until the date of entry into force of   [the   2004   Amendment], and, if so, When this duty should have been performed and whether damages for failure to   enact the above law corresponds to unreceived compensation for the enterprise nationalised by the State, determined in accordance with the principles laid down in   section 7(2) and (5) of [the 1946 Act]?”. The question arose in the context of a case brought by a certain E.K., who sought damages for the nationalisation of her family’s printing house and, as one of the basis for her claim, invoked Article 417 1 of the Civil Code, relying on the State’s legislative omission consisting in its failure to   issue the relevant ordinance. 24.     The Supreme Court’s answer in the operative part of the resolution reads: “Until the date of entry into force of [the 2004 Amendment] the Cabinet’s failure to   issue an ordinance foreseen in section 7(4) and (6) of [the 1946 Act] did not constitute a basis for a claim by an owner of the nationalised enterprise for damages arising from [nationalisation].” 25.     The resolution contains extensive reasoning, the main thrust of   which reads as follows: “[As regards the time-frame for the issue of the ordinance]. The determination of   the   beginning of that situation carries with it a certain element of arbitrariness since [the 1946 Act] does not lay down any term within which the ordinance referred to   in   section [7] (4) and (6) should be issued. Assuming that in general the absence of   a term is tantamount to a duty to enact a law without undue delay, it   can   be   considered that the discharge of the statutory authorisation, assuming the existence of willingness of the authorised body (the Cabinet) should have taken place in 1946 or   in 1947 at the latest. This is supported by the fact that the Cabinet issued ordinances implementing other provisions (including section 2(7) of the Act, a   fundamental provision for the interest of the State). [As regards the State’s civil liability for legislative omission], ... it should be   concluded that before the entry into force of the 1997 Constitution the State had not been liable under civil law for the consequences of its legislative inactivity. ... 17 October 1997, marking the entry into force of the Constitution is the relevant date as its constitutes the beginning of the existence in the legal order of, inter alia , Article 77 § 1 of the Constitution, proclaiming the right of “everyone” to   compensation for any harm done to him by any act of a public authority in breach of the law .... Assuming that Article 77 § 1 does not contain a provision making it possible to   draw from it a direct basis for a claim for damages for the legislature’s inactivity, it   must be said that the rules for the State’s liability in the sphere of law-making should be established by means of an ordinary statute, determining in a more detailed manner than Article 77   §1 premises for an effective claim. ... Article 417 1 § 4 of the Civil Code, as introduced by [the 2004 Amendment] satisfies the requirement of detailed premises. The relevant temporal consequences have been clearly set out in its section 5, evidently indicating the prospective operation of   Article   417 1 § 4 of the Civil Code. A formulation laying down a non-retroactive character of   the provision is telling in that it refers to “events and legal situation that subsisted before its entry into force” ... In consequence, the assessment of the effects of   legislative omission subsisting before 1 September 2004 was governed by [earlier provisions]. The relevant Article 417, in its version before the amendment, did not include legislative omission as it was based on a completely different premise, namely, the absence of the State’s civil liability for the legislature’s acts. ... “ (ii)     The 2007 Judgment (no. I CSK 273/07) 26.     On 5 December 2007 the Supreme Court, sitting as a bench of three judges, dealt with a cassation appeal ( kasacja ) lodged by Lubelska Fabryka Maszyn i Narzędzi Rolniczych “Plon” , [2] a limited liability company which was at that time subject to a winding-up procedure. The appellant contested the judgment of the Warsaw Court of Appeal of 2 February 2007, rejecting its appeal ( apelacja ) against the judgment of the Warsaw Regional Court of   30 May 2006 whereby its claim for damages arising from the State’s failure to issue the relevant ordinance, pursuant to section 7(2) and (5) of   the   1946 Act, had been dismissed. The claim was based on Article 77 of   the Constitution and Articles 417 and 417 1 § 4 of the Civil Code. In dismissing the cassation appeal, the Supreme Court essentially reiterated the grounds stated in the 2005 Resolution (see paragraph 25 above), stressing that the impugned legislative omission occurred in 1946 or, at the latest in 1947 and since then had continued. However, Article   77   §   1 of the Constitution could not be considered a legal basis for   a   claim deriving from an “omission” by public authorities since that provision clearly covered only their “acts”. The provision of Article 417 1 , enabling a plaintiff to seek damages for legislative omission, had been introduced only on 1   September 2004 by virtue of the 2004 Amendment. The terms of section 5 of the Amendment 2004 were unambiguous: Article   417 1 of the Civil Code did not apply to events and situations that had subsisted before its entry into force. Consequently, its operation was   excluded in respect of legislative omissions that originated in facts that   had occurred earlier, even if this state of affairs continually existed until the present day. (e)     The Constitutional Court’s case-law on compensation for legislative omission in nationalisation cases 27.     On 13 June 2011 the Constitutional Court ( Trybunał Konstytucyjny ) heard a constitutional complaint lodged by a company Elektrownia w   Kielcach spółka akcyjna , challenging the constitutionality of section   5 of   the 2004 Amendment in so far as it excluded the application of   Article   417 1 of the Civil Code to situations that had subsisted before the   entry into force of that Amendment, i.e. 1 September 2004 (see also paragraphs 20-26 above). The claimant invoked, in particular, Article 77   §   1 of (right to compensation for unlawful action of public authority) read in   conjunction with Article 2 (rule of law), Article 64 §§ 1   and   2 (right   of   ownership) read in conjunction with Article 21 §§ 1   and   2 (protection of ownership) and Article 32 § 1 (equality before the law) and   Article 45 § 1 (right of fair trial) of the Constitution. Before lodging the complaint, the company, which had been nationalised under the 1946 Act, unsuccessfully sought compensation for the Prime Minister’s legislative inactivity in that he had failed to enact an ordinance on rules for compensation as required by the 1946 Act. On 4 April 2008 the   claim was finally rejected by the Warsaw Court of Appeal on   the   grounds stated in the 2005 Resolution (see paragraphs 23-25 above). The Constitutional Court’s decision (no. SK 26/09), in its relevant part, reads as follows: “4.7. ... Consequently, in the light of the provisions of the Constitution it is difficult to assume that non-fulfilment of the duty to enact an ordinance on compensation for   nationalised property derived from [the 1946 Act] amounted to “[an] act of   a   public authority in breach of the law” linked with the State’s liability for   [constitutional] tort under the Constitution. Even assuming that the state of   legislative omission still persists, it should at the same time be concluded that the   duty is non-enforceable. Thus, it is evident that on the basis of the applicable laws only a statute could regulate compensation for the claimant’s nationalised property. ... Accordingly, the   Constitutional Court considers that the assumption that a legislative omission “in breach of the law” still continues is unwarranted, in particular after the   entry into force of the Constitution, in the light of its standards. ... In the light of   the constitutional standards as applicable at present it is difficult to accept that there is any legal force attached to the duty imposed on the Cabinet by section 7 of the 1946 Act.” 3.     Code of Administrative Procedure (a)     Annulment of final administrative decision 28.     Article 156 § 1 of the Code of Administrative Procedure (“the   CAP”) ( Kodeks postępowania administracyjnego ), which sets out grounds on which a final administrative decision is subject to annulment, states: “1.     A public administration authority shall declare a decision null and void if: 1)     it has been issued in breach of the rules governing competence; 2)     it has been issued without a legal basis or in flagrant breach of the law; 3)     concerns a case already decided by means of another final decision; 4)     it has been addressed to a person who is not a party to the case; 5)     it was unenforceable on the date of its issuance and its unenforceability is   of   a   permanent nature; 6)     it would give rise to a punishable offence in the event that it has been enforced; 7)     it has a flaw making it null and void by the force of law. There is no time-limit for a party’s request to have an administrative decision declared null and void under Article 156 § 1. However, there are situations where, even if certain grounds listed in   Article 156 § 1 exist, the lapse of time or irreversible effects of   the   contested decision have consequences for the formula used in   a   decision given in the annulment procedure. Article 156 § 2 provides for   the following exceptions: “     A decision shall not be declared null and void on the grounds listed in paragraph 1 (1), (3), (4) and (7) if 10 years have expired from the date of its service or   promulgation, as well as if the decision has produced irreversible legal effects.” Article 158 reads as follows: “1.     A ruling on annulment of a decision shall be given by means of a decision. 2.       If it is impossible to declare a decision null and void because of   the   circumstances referred to in Article 156 § 2, a public administration authority shall only declare that the contested decision has been issued contrary to the law and indicate circumstances because of which it has not declared the decision null and void.” For the purposes of compensation, the effects of declaring the original administrative decision “null and void” or “issued contrary to the law” are   the same. 29.     Article 160 set out principles for compensation for loss caused by   the issuance of an administrative decision subsequently annulled on   the   grounds listed in Article 156 § 1. This provision was repealed by the 2004 Amendment with effect from 1   September 2004 (see also paragraphs 20-21 above) and replaced by new Article 417 1 § 2 of the Civil Code. However, under section 5 of the 2004 Amendment, which sets out transitional rules, Article 160, in the version applicable on the repeal date, still applies to “events and legal situations” that subsisted before the entry into force of the 2004 Amendment. Article 160, in the version applicable on the relevant date, read as   follows: “1.     A party who has suffered a loss on account of the issuance of a decision in   breach of Article 156 § 1 or on account of annulment of such a decision shall have a claim for compensation for actual damage, unless he has culpably caused the   circumstances mentioned in this provision. 2.     The provisions of the Civil Code, except for Article 418 [provision repealed], shall apply to [such] compensation. 3.     Compensation is due from an authority that issued a decision in breach of   Article   156 § 1, unless the other party to the proceedings concerning the decision culpably caused the circumstances mentioned in this provision; in the latter case a   claim for compensation shall be directed against the culpable party. 4.     A public administration authority that has declared a decision null and void or   declared, pursuant to Article 158 § 2, that it has been issued contrary to the law shall rule on compensation due from the authority referred to in § 1. The vindication of compensation from a person who has culpably caused the circumstances mentioned in Article 156 §1, shall be effected before a court of law. 5.     A party who is not satisfied with compensation granted by a public administration authority referred to in § 4, may lodge a claim with a court of law within 30 days from the date of service of a decision given on that matter. 6.     A claim for compensation shall be time-barred after 3 years from the date on   which has become final the decision declaring null and void the decision issued in   breach of Article 156   § 1 or decision whereby an authority has declared, pursuant to   Article 158 § 2, that the contested decision has been issued in breach of   Article   156   §   1.” (b)     Supreme Court’s resolution on the application of Article 160 of the CAP to   compensation claims for issuance of defective administrative decision 30.     On 30 March 2011 the Civil Chamber of the Supreme Court, sitting in plenary, gave a resolution (no. III CZP 112/10) on the application of   Article 160 of the CAP and rules regarding compensation. The resolution was given in response to legal questions submitted by the First President of   the Supreme Court in connection with certain problems and divergences arising in judicial practice, in particular in respect of the temporal effects of   Article 160 as determined in section 5 of the 2004 Amendment, the   application of Article 417 1 § 2 of the Civil Code which replaced Article   160 (see paragraphs 20-21 and 29 above) and rules for adjudicating compensation. The resolution contains an extensive reasoning which, in   so   far   as   relevant, may be summarised as follows: 1)     Article 160 §§ 1,2,3 and 6 of the CAP applies to all claims for   damages arising from an issuance of a final administrative decision given before 1 September 2004, which has been declared null and void or   has been declared as being issued in breach of Article 156   §   1 of   the   CAP. In contrast, paragraphs 4 and 5 of Article 160, setting out the   procedure for vindicating such claims, should be considered as no longer applicable. Consequently, a party seeking compensation under this provision should file an action directly with a civil court. 2)     Where an annulled administrative decision has been given before the   entry into force of the Constitution (17 October 1997), compensation defined in Article 160 of the CAP shall not include loss of profits sustained in consequence of its issuance, even if such loss has occurred after this date. (c)     Information on cases involving the annulment procedure under Article   156 § 1 and claims for compensation for nationalised property under Article   160 of the CAP produced by the Government 31.     The Government, in their observations, supplied data concerning the   annulment procedure and claims for compensation for nationalisation asserted by former owners or their heirs under the provisions of the CAP. Their submissions may be summarised as follows. From 1989 to   30   September 2006 the Ministry for Economy registered 3,167 cases where applicants asked for the annulment of nationalisation decisions issued under the 1946 Act and other nationalisation laws adopted under the   communist regime. Many other cases were registered in other Ministries. The Government assumed that one half of those cases concerned the 1946 Act. By 30 September 2006 the relevant Minister annulled 1,394   nationalisation decisions, declaring them either null and void or being issued in breach of the law. A further 1,100 similar cases were at that time pending. In 625 cases the applicants initiated the compensatory procedure under Article 160 of the CAP. In 374 cases compensation was granted, 151   cases were dismissed as time-barred since the applicants had not complied with the statutory time-limit of 3 years for lodging a compensation claim. _ Between 1995 and 2006 the Minister for Economy paid to claimants 227,000,000 Polish zlotys (PLN) [3] by way of compensation for nationalised property. 4.     Legislative initiatives concerning restitution and compensation for   property taken under the communist regime (a)     From 1990 to 2005 32.     In the years 1990-2005 Parliament dealt with 11 bills on   reprivatisation, restitution and compensation for property taken over by   the communist authorities under nationalisation laws passed in   1944 ‑ 1962. None of them was successfully enacted mostly because fresh elections were called and the work on them had to be discontinued. In   the   case of the 1999 bill on the restitution of immovable property and   certain kinds of movable property taken from natural persons by   the   State or by the Warsaw Municipality, and on compensation ( Projekt ustawy o reprywatyzacji nieruchomości i niektórych ruchomości osób fizycznych przejętych przez Państwo lub gminę miasta stołecznego Warszawy oraz o rekompensatach – “the Restitution Bill 1999”) the   relevant Act of Parliament never entered into force because it had been vetoed by the President of Poland. Each of those bills, although they differed in specific modalities, contained provisions for compensation for nationalisation of property under the 1946 Act. (b)     From 2006 until the present 33.     In 2007 the Polish Parliament started the first reading of   the   Government’s bill on compensation for property or other assets taken over by the State ( projekt ustawy o rekompensatach za przejęte przez   państwo nieruchomosci oraz inne składniki mienia ) (“the   2006   Compensation Bill”). In general, compensation claims were to   be   subject to a statutory ceiling of 15% of the value of the original property taken over by the State. The claims of the owners of property nationalised under the provisions of the 1946 Act were included in the list of claimants entitled to compensation. The work on the 2006 Compensation Bill was discontinued in September 2007 since snap parliamentary elections were called following the collapse of the government coalition. 34.     In 2008 the new Government started preparatory work on fresh restitution legislation, i.e. the “Bill on pecuniary benefits to be granted to   some persons who were subject to nationalisation procedures” ( projekt   ustawy o świadczeniach pieniężnych przyznawanych niektórym osobom, których dotyczyły procesy nacjonalizacji ) (“the   2008   Compensation Bill”). 35.     The 2008 Compensation Bill provided for no restitution of   nationalised properties and was based on the principle of limited compensation, corresponding to a certain – not stipulated in the bill but to   be determined in the Minister for Treasury’s future ordinance – percentage of the value of the property in question on the date of   its   nationalisation. 36.     In the Minster for Finance’s report on the assessment of   the   budgetary impact of the implementation of the 2008 Compensation Bill (drawn up in 2008) the total value of the claims to be covered by   the   2008 Compensation Bill was estimated at PLN 100,000,000,000 [4] . It was expected that some 80,000 applications for compensation will   be   submitted under the provisions of the new legislation. The process of   the realisation of cash payments was to be spread over the period of   15   years and instalments were to be indexed each year in accordance with   the consumer price index. The entry into force of the bill was tentatively foreseen for 2012. 37.     In February 2010 the Minister for Finance was asked to make an   analysis of the consequences of the implementation of the 2008   Compensation Bill. 38.     On 5 March 2010 the Minister for Finance submitted a report stating that if the bill entered into force in 2012, there would be an abrupt increase in the public debt by PLN 18,000,000,000 [5] which would correspond to   1.00 ‑ 1.10% of the Gross National Product (GNP). In the circumstances, the allocation of PLN 20,000,000,000 [6] for securing nationalisation claims might result in Poland’s exceeding the permissible limits of the national debt in relation to GNP as set by the European Union. 39.     In March 2011 the Minister for Treasury issued a press release on   the Ministry’s website, informing the public that the Government had decided not to submit the 2008 Compensation Bill to Parliament. That   statement gives the following explanation: “In view of the considerable savings that have been made in recent years, connected with the global financial crisis in many sectors of our social and economic life and   the   large financial burden resulting from the planned legislation, in the present economic situation, [the 2008 Compensation Bill] cannot be enacted.” [7] COMPLAINTS 40.     The applicants complained that they had been deprived of their property in violation of Article 1 of Protocol No. 1 to the Convention on   account of the fact that their right to compensation, as laid down in   the   1946 Act, had not been satisfied although the legal basis for their claim was still in force. They further asserted that the State’s failure to issue the ordinance enabling them to enforce their right constituted a continuing situation affecting the property rights of thousands of persons whose property was   nationalised under the 1946 Act. THE LAW 41.     The applicants alleged a breach of Article 1 of Protocol No.   1 to   the   Convention in that they had been continually unable to obtain compensation for their property nationalised under the 1946 Act notwithstanding the fact that the authorities were obliged to compensate them under the provisions of that Act. A.     The first applicant’s wife’s standing in the proceedings before the Court 1.     The parties’ submissions 42.     The applicants asked the Court to accept the first applicant’s widow’s request to allow her to pursue the application on his behalf. 43.     The Government refrained from commenting. 2.     The Court’s assessment 44.     As noted above, the applicant, Mr Henryk Pikielny, died after he had lodged his application with the Court (see paragraph 1 above). His widow confirmed to the Court that she wished to continue the Convention proceedings on his behalf. The Court, having regard to its established case ‑ law on the matter (see, among many other examples, Krasuski   v.   Poland (dec.), no. 74958/01, 11 December 2007) , concludes that she has standing to pursue the application in his stead. B.     The Government’s preliminary objections in general 45.     The Government made a number of preliminary objections to   the   admissibility of the application. They submitted that it was incompatible ratione temporis , ratione personae and rationae materiae with the provisions of the Convention. They further pleaded non-exhaustion of   domestic remedies and non-compliance with the six-month term laid down in Article 35 § 1 of the Convention. However, the Court finds it unnecessary to deal in detail with each and every objection raised by the Government since it considers that   the   application should in any event be rejected in accordance with the   principle of subsidiarity for non-compliance with the rule of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention. This Article states, in so far as relevant, as follows: “1.     The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ... .” C.     Non-exhaustion of domestic remedies 1.     The parties’ submissions (a)     The Government 46.     Th