6.  The applicants, Jerzy, Ariadna and Andrzej Plechanow, are Polish nationals who were born in 1953, 1924 and 1955 respectively and live in Warszawa. 7.  The applicants’ predecessor owned a plot of land with a residential building situated in Warsaw. The applicants are his heirs. 8.  By virtue of the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw (“the 1945 Decree”) the ownership of all private land was transferred to the City of Warsaw. 9.  The applicants’ predecessor requested to be granted the right of temporary ownership (własność czasowa) of the property pursuant to section 7 of the 1945 Decree. 10.  On 6 January 1964 the Board of the Warsaw National Council (Prezydium Rady Narodowej) refused the request. The Board also stated that the ownership of all buildings situated on the property had been transferred to the State Treasury. The property was subsequently divided into smaller plots. 11.  Between 1975 and 1992 the State Treasury sold several apartments in the residential building (together with shares in the right of perpetual use of the land) to third parties. 12.  In 1991, 1994 and 1995 the Warsaw Governor declared that on 27 May 1990 the Warsaw Municipality had acquired ex lege the ownership of the plots of land and the building thereon (with the exception of the previously sold apartments). 13.  On 12 March 1997 the Board of the Praga-Południe District of the Warsaw-Centre Municipality adopted a resolution on the basis of which it published a list of flats which could be sold to the tenants. In September and November 1997 they sold two apartments. 14.  On 5 March 1998 the Praga-Południe District Office informed the applicants of the above resolution and of the possibility of exercising a right of pre-emption in respect of the remaining flats. The right of pre-emption had been introduced as from 1 January 1998 on the basis of section 34 of the Act of 21 August 1997 on the management of real estates (ustawa o gospodarce gruntami). 15.  On 18 March 1998 the applicants informed the municipality that the third applicant would buy the flat he had occupied so far. At the same time they requested that the further sale of other flats be stayed. They enclosed a decision of the Warsaw District Court of 5 March 1991 declaring them to be heirs of F.P., K.P. and P.P. 17.  On 30 November 1999 the Local Government Board of Appeal (Samorządowe Kolegium Odwoławcze) declared the decision of 6 January 1964 null and void in respect of part of the property. However, the Board could not annul the decision in respect of the remaining part of the property in question, since the ownership rights to 19 apartments and respective shares in the right of perpetual use of the land had been sold in the meantime to third parties. Thus, in view of the irreversible legal consequences of the 1964 decision, the Board only declared that, in this respect, the decision had been issued in breach of law. 18.  The Board noted that the obligations of the Warsaw National Council resulting from a breach of law had been taken over by the Warsaw Municipality. 19.  The Board further noted that its decision entitled the applicants to seek compensation for damage caused by the administrative decision having been issued in breach of law. 20.  In March 2000 the applicants lodged compensation claims with the Mayor of the Warsaw District (Starosta Powiatu Warszawskiego) and the President of Warsaw in respect of the relevant 19 apartments. 21.  On 9 June 2000 the Mayor of the Warsaw District transferred the claim to the Warsaw Local Government Board of Appeal in view of the latter organ’s competence. In November 2000 and December 2000 the Board issued several decisions concerning particular apartments in which it refused to award compensation. 22.  On 21 December 2000 the applicants lodged compensation claims with the Warsaw Regional Court against the Warsaw municipality under Article 160 of the Code of Administrative Procedure. 23.  On 21 March 2002 the Regional Court dismissed the action. The court acknowledged that the applicants had sustained damage as a result of the 1964 decision (the court heard evidence, including an expert witness, who estimated the loss at PLN 1,025,970). However, the court eventually found that the State Treasury should have been sued instead of the municipality. The court noted that according to the Supreme Court judgment of 7 January 1998 the municipality had the legal capacity to be sued for compensation for damage resulting from an administrative decision issued before 27 May 1990. However, in the court’s view, this interpretation had become obsolete in view of the subsequent interpretation of section 36 of the Local Government (Introductory Provisions) Act of 10 May 1990 (Przepisy wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych). 24.  On 19 June 2002 the applicants’ lawyer lodged an appeal. He referred inter alia to the Supreme Administrative Court resolution of 15 April 1996, OPK 9/96, which, in his opinion, justified the responsibility of the local government administration in the present case. In this context he also invoked section 36 § 2 of the 1990 Local Government (Introductory Provisions) Act and relied on the judgment of the Supreme Court of 7 January 1998 arguing that the first‑instance court had been wrong to consider the judgment obsolete. 25.  On 11 April 2003 the Warsaw Court of Appeal dismissed the applicants’ appeal. The court upheld the lower court’s arguments, finding that the State Treasury should have been sued for damages because the Governor (the State’s administration body) was the legal successor of the National Council. 26.  The applicants lodged a cassation appeal. They submitted, inter alia, that the judgment was in breach of relevant substantive law on account of an erroneous interpretation and application of the provisions of the Local Government Act. They also invoked Article 393 of the Code of Civil Procedure arguing that the examination of the cassation appeal was justified because:
- the case raised a significant legal issue (i.e. the question to what extent and in respect of which competences the obligations of the national councils had been taken over by communities), and
- the need for an authoritative interpretation of provisions which had been interpreted differently in the courts’ case-law (in particular section 36 § 3 of the 1990 Local Government (Introductory Provisions)), and
- the need to clarify the inconsistency of the Court of Appeal’s judgment with the case-law invoked by the applicants and the alleged guidance provided by the decision of the Local Government Board of Appeal of 30 November 1999. 27.  On 10 December 2003 the Supreme Court refused to entertain the cassation appeal. The decision was taken by a single judge sitting in camera. The written reasons provided as follows:
According to Article 393 of the Code of Civil Procedure, when the challenged judicial decision does not manifestly breach the law or the proceedings are not invalid in law (§ 2), the Supreme Court may refuse to entertain a cassation appeal if there is no appearance of a significant legal issue in the case, there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case-law or the cassation appeal is manifestly ill-founded (§ 1).
In the present case none of the circumstances set out in Article 393 § 2 was present and consequently the Supreme Court, having considered the grounds set out in § 1, found it justified to refuse to entertain the cassation appeal. 28.  On 8 March 2004 the applicants lodged a constitutional complaint with the Constitutional Court, alleging a breach of their right of access to court and to a fair hearing on account of an erroneous application of Article 393 of the Code of Civil Procedure. 29.  On 19 July 2005 the Constitutional Court discontinued the proceedings on the grounds that it had already examined the same issue in its judgment of 31 March 2005 (SK 26/02). 30.  On 3 March 2000 the applicants requested the Mayor of Warsaw to grant them the right of perpetual use of the remaining apartments which had not been sold. They relied on the decision of the Warsaw Local Government Board of Appeal of 30 November 1999. 31.  On 25 April 2002 the applicants’ lawyer submitted a certificate of the mortgage writer (pisarz hipoteczny) of 24 November 1937 certifying the ownership title of F.P. on that day.