CASE OF WOS v. POLAND
Preliminary objections rejected (incompatibility ratione personae;non-exhaustion of domestic remedies);Preliminary objection joined to merits (incompatibility ratione materiae);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
Giovanni Bonello;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi
8. The applicant was born in 1928 and lives in Cielcza, Poland. 9. The realities of the international situation following the end of the Second World War prevented the Republic of Poland from asserting any claims arising out of persecution of its citizens, including as forced labourers, by Nazi Germany. 10. In the period immediately following the Second World War, Poland did not conclude a specific agreement with Germany regarding the issue of reparations. It relied on the Potsdam Agreement of 1 August 1945, concluded by the governments of the United States of America, the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics. 11. On 27 February 1953 the London Agreement on German External Debts (the London Debt Agreement) was concluded by the United States of America, Great Britain, France and the Soviet Union. Under this Agreement, consideration of claims arising out of the Second World War by countries that had been at war with, or were occupied by, Germany, and by nationals of such countries, against the Reich or agencies of the Reich was deferred until the final settlement of the issue of reparations. 12. On 23 August 1953, the day after a similar declaration by the government of the Soviet Union, the government of Poland declared that it renounced any claims against Germany in respect of war reparations as of 1 January 1954. In a declaration of 27 September 1969 made at the United Nations, the government of Poland clarified that the renouncement of 1953 did not affect individual claims arising out of unlawful acts. 13. It was only after the conclusion of the Treaty on the Final Settlement with respect to Germany of 12 September 1990 (the socalled TwoPlusFour Treaty) and the conclusion of two treaties between the Federal Republic of Germany and the Republic of Poland in 1990 and 1991 that the issue of persons persecuted by the Nazi regime was addressed in the bilateral agreement of 16 October 1991 (see paragraph 28 below). 14. The applicant was subjected to forced labour during the Second World War on the territory of occupied Poland. In February and March 1941 he worked on a German farm near Cielcza. Subsequently, from April 1941 to April/May 1944, the applicant worked as a forest labourer in Cielcza. Finally, he was relocated to an area situated 200 kilometres from his habitual place of residence, where he was required to reinforce German defences from May/June 1944 to 26 January 1945. In February 1944 the applicant reached the age of 16. 15. On 20 October 1993 the applicant applied to the Polish-German Reconciliation Foundation (Fundacja PolskoNiemieckie Pojednanie – “the Foundation”) for compensation on account of his forced labour from the funds contributed by the government of the Federal Republic of Germany under the Agreement of 16 October 1991 (see paragraphs 28-29 below). On 2 February 1994 the Foundation’s Verification Commission (Komisja Weryfikacyjna), having regard to a document issued by the social security authorities, established that the applicant had been subjected to forced labour from February 1941 to January 1945 and awarded him 1,050 Polish zlotys (PLN) in compensation. This payment was granted within the framework of the “primary payments scheme” (wypłaty podstawowe). The issue of deportation was apparently not addressed in the decision. The applicant’s subsequent appeal against this decision was dismissed by the Appeal Verification Commission (Odwoławcza Komisja Weryfikacyjna) on an unspecified date. The Appeal Verification Commission found that the amount of payment granted to the applicant had been calculated correctly. 16. On an unspecified date in 1999 the Foundation’s management board (Zarząd Fundacji) adopted Resolution no. 29/99, which introduced a deportation requirement for claimants who had been forced labourers. The resolution also provided that those claimants who had been subjected to forced labour as children under the age of 16 could be granted compensation regardless of whether the deportation condition was met (see paragraph 35 below). 17. On 2 March 2000, following the adoption of Resolution no. 29/99, the Foundation’s Verification Commission granted the applicant a supplementary payment of PLN 365. The decision on supplementary payment related to the applicant’s forced labour as a child under the age of 16 ( from April 1941 to February 1944). Thus, the period of forced labour from March 1944 to January 1945 was not taken into account because the deportation condition as defined in Resolution no. 29/99 had not been met. The period of forced labour from February to March 1941 was not acknowledged in the absence of appropriate evidence. 18. On 12 March 2000 the applicant appealed against that decision to the Appeal Verification Commission, challenging the amount of compensation granted. It appears that the applicant complained that the period of his forced labour between May/June 1944 and 26 January 1945, carried out in particularly harsh conditions connected with his relocation, was not taken into account by the Verification Commission. Having received no reply to his appeal, the applicant made further enquiries with the Foundation on 31 October 2000 and 3 January 2001. 19. In the meantime, the applicant had lodged a complaint with the Ombudsman regarding the Foundation’s inactivity. On 4 April 2001 the Ombudsman informed the applicant that, regrettably, he was not in a position to question the lawfulness of resolutions adopted by the PolishGerman Reconciliation Foundation or any other foundation. The PolishGerman Reconciliation Foundation was established in accordance with the Foundations Act of 6 April 1984. In this particular case, the Foundation operated under the supervision of the Minister of the State Treasury. However, the Ombudsman could not interfere with the Foundation’s actions as long as they complied with its statute and other legal regulations. The Ombudsman also referred to the Supreme Court’s decision of 31 March 1998, which refused to recognise the Polish-German Reconciliation Foundation as a public administration body (see paragraphs 4142 below). 20. By a letter of 24 April 2001, the President of the Foundation’s Appeal Verification Commission informed the applicant that, under the Foundation’s internal regulations in force at the material time (Resolution no. 29/99), only forced labourers deported to the Third Reich or to an area occupied by the German Reich (with the exception of the territory of occupied Poland) were eligible for compensation. Finally, the applicant was informed that no further appeal lay against the decision of the Appeal Verification Commission. 21. Nevertheless, on an unspecified later date, the applicant lodged a complaint against the decision of the Appeal Verification Commission of 24 April 2001 with the Supreme Administrative Court (Naczelny Sąd Administracyjny). It appears that in his complaint the applicant also challenged Resolution no. 29/99. 22. On 14 December 2001 the Supreme Administrative Court dismissed the applicant’s complaint, considering it inadmissible in law. It relied on Decision no. OPS 3/01, adopted by the Supreme Administrative Court on 3 December 2001 (see paragraph 45 below). 23. In a letter dated 23 September 2002, the Minister of the State Treasury informed the applicant that, in order for a forced labourer to be granted compensation, it was necessary for him to comply with the deportation requirement as specified in Resolution no. 29/99 of the Foundation’s management board. 24. On 21 November 2000 the applicant applied to the Foundation for compensation under the scheme for slave and forced labourers (the second compensation scheme), established under the Joint Statement of 17 July 2000, the German Law of 2 August 2000 on the creation of the Remembrance, Responsibility and Future Foundation (“the German Foundation Act”) and the subsequent Agreement of 16 February 2001 between the Remembrance, Responsibility and Future Foundation and the Polish-German Reconciliation Foundation (see paragraph 37 below). On 17 April 2001 the Foundation’s Verification Commission rejected his request on the ground that he did not satisfy the deportation requirement set out in section 11(1)2 of the German Foundation Act. It appears that the applicant did not appeal against the decision of the Verification Commission of 17 April 2001. The applicant’s subsequent complaints to the Minister of the State Treasury were to no avail. 25. In a letter dated 28 June 2005, the Foundation’s management board, referring to the Court’s admissibility decision in the present case, informed the applicant that its Resolution no. 29/99 of 18 August 1999 concerning interpretation of the term “deportation” had never restricted or violated his rights to receive a benefit, for the following reasons: (a) the applicant did not comply with the deportation requirement specified in Resolution no. 27/92 of 17 August 1992, under which deportation was defined as “deportation outside one’s place of permanent residence into the territory of the Third Reich combined with performing labour for the benefit of the Third Reich”; (b) the granting of compensation within the framework of the so-called primary payments for the period between February 1941 and January 1945 had been in breach of the Foundation’s regulations, namely Resolution no. 27/92; (c) thus, the applicant should have received compensation solely for the period up to February 1944, namely, for the period until his 16th birthday, since he had never complied with the deportation requirement as specified in Resolution no. 27/92; (d) the Foundation’s error committed in respect of the primary payment was rectified within the framework of the supplementary payments, and thus it could not be said that the applicant’s rights were restricted or breached. 26. The applicant was further informed that, since he had resided and performed forced labour on the territory of Wielkopolska province which, known as Warthegau province at the time, was annexed by the Third Reich in October 1939, the obligation to perform forced labour in the area of the applicant’s residence (his first workplace was located 10 km from his place of residence and the second – Cielcza forest – was in his habitual place of residence) could not be considered as deportation with a view to performing forced labour. Similarly, the obligation to reinforce German defences on Polish territories annexed by the Third Reich was not considered “deportation” under Resolution no. 27/92. Lastly, the applicant was informed that in cases such as his, when the Foundation had made an error in favour of a claimant, the consequences of that error were borne by the Foundation, which had never claimed reimbursement of the overpaid amounts. 27. Article 9 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and came into force on 17 October 1997, states: “The Republic of Poland shall respect international law binding upon it.” Article 45 § 1 of the Constitution reads: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” Chapter III of the Constitution, entitled “Sources of Law”, refers to the relationship between domestic law and international treaties. Article 87 § 1 provides: “The sources of the universally binding law of the Republic of Poland shall be: the Constitution, statutes, ratified international agreements, and regulations.” The relevant parts of Article 91 state: “1. After promulgation thereof in the Journal of Laws of the Republic of Poland [Dziennik Ustaw], a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute. 2. An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.” Chapter VIII of the Constitution contains provisions related to the judiciary. Article 175 § 1 of the Constitution provides: “The administration of justice in the Republic of Poland shall be implemented by the Supreme Court, the ordinary courts, administrative courts and military courts.” Article 177 of the Constitution states: “The ordinary courts shall implement the administration of justice concerning all matters save for those statutorily reserved for other courts.” The relevant part of Article 184 provides: “The Supreme Administrative Court and other administrative courts shall exercise, to the extent specified by statute, control over the performance of public administration.” 28. On 16 October 1991 the governments of the Federal Republic of Germany and the Republic of Poland concluded an agreement on the basis of which the German government declared that, prompted by humanitarian considerations, it was prepared to contribute 500 million German marks (DEM) for the benefit of the Polish-German Reconciliation Foundation. The Foundation was to be established by the government of Poland with a view to providing financial assistance to victims of Nazi persecution who had suffered serious damage. The Foundation was to determine the necessary criteria for the granting of compensation, having regard to serious damage to the victims’ health and to their current financial difficulties. The government of Poland declared that it would not pursue further individual claims by Polish citizens arising out of Nazi persecution. Both governments indicated that their agreement should not amount to limitation of the rights of citizens of either country. 29. Subsequently, on 27 November 1991, the Minister – Head of the Cabinet’s Office (Minister – Szef Urzędu Rady Ministrów), acting as a founder, made a declaration before the State notary on the establishment of the Foundation. He declared that, acting on the initiative of the government of the Republic of Poland and on behalf of the State Treasury, he was establishing the Polish-German Reconciliation Foundation. The Foundation’s aim was to provide assistance to the victims of Nazi persecution and to undertake other activities for the benefit of those persons. The Minister also declared that the Foundation’s capital fund consisted of DEM 500 million, contributed by the German government to the Polish government. 30. The Polish-German Reconciliation Foundation was established in accordance with the Foundations Act of 6 April 1984, which regulates the activities of foundations in Poland. The Act stipulates that individuals and legal persons may establish foundations in order to carry out socially and economically beneficial goals which comply with the basic interests of the Republic of Poland. In principle, supervision of a foundation’s activities is exercised by the regional governor (Wojewoda) or the competent minister. These supervisory authorities may apply to a court to establish whether a foundation’s actions have complied with its aim, its statute and the general legislation (section 12). The competent minister or the regional governor may also apply to the courts to quash a resolution adopted by a foundation if it is evidently incompatible with its aim, its statute or the general legislation (section 13). 31. The statute of the Polish-German Reconciliation Foundation was drafted and subsequently registered by the Warsaw District Court on 24 February 1992. On that date the Foundation began its activities. The founder could amend the statute and decide whether the Foundation was to go into liquidation. According to paragraph 6 of the statute, the Foundation’s primary aim was to render direct financial assistance to those victims of Nazi persecution whose health had been seriously damaged and who were in financial difficulties as a result of that persecution. The function of supervisory authority was exercised in respect of the Foundation by the Minister of Labour and Social Policy (Minister Pracy i Polityki Socjalnej). 32. The Foundation’s main bodies were the supervisory board (Rada Nadzorcza), composed of twenty-one members, and the management board (Zarząd), composed of nine members. The members of those bodies were appointed and dismissed by the founder, namely, the Minister – Head of the Cabinet’s Office, who exercised full control in this respect. The two other bodies of the Foundation were the Verification Commission (Komisja Weryfikacyjna), whose members were appointed by the Foundation’s management board, and the Appeal Verification Commission (Odwoławcza Komisja Weryfikacyjna), whose members were appointed by the Foundation’s supervisory board. 33. The Foundation assessed the substantive and procedural aspects of requests for financial assistance on the basis of its statute and the regulations drawn up by the management board and adopted by the supervisory board. The Verification Commission was responsible for reaching decisions on whether to grant financial assistance to victims. Appeals against the Verification Commission’s decisions could be lodged with the Appeal Verification Commission. The latter’s decisions were to be final. 34. The financial assistance granted by the Foundation from the funds contributed by the government of the Federal Republic of Germany in 199293 was paid in two parts: a primary payment and a supplementary payment, the latter deriving from the interest accrued on the original contribution from the German government. On 7 June 2002 the disbursement of all those compensation payments was terminated on the basis of Resolution no. 29/2002 of the Foundation’s supervisory board as the relevant funds were depleted. 35. On an unspecified date in 1999 the Foundation’s management board adopted Resolution no. 29/99 which introduced a deportation requirement. The Resolution specified that only those forced labourers who had been deported from their place of residence to the territory of the German Reich or to territories occupied by Germany were eligible for compensation. It stipulated that the deportation condition was not fulfilled by those persons who had been subjected to forced labour on the territory of Poland within that country’s borders of August 1939. In addition, Resolution no. 29/99 laid down a separate eligibility criterion to the effect that those who had been subjected to forced labour as children under the age of 16 could be granted compensation regardless of whether the deportation condition was met. 36. On 10 December 2002 the Minister of the State Treasury (Minister Skarbu Państwa) assumed the function of founder and supervisory authority of the Foundation. 37. The facts relating to the second compensation scheme and the applicable legal provisions, which are not directly relevant for the merits stage of the present case, are set out in paragraphs 29-42 of the admissibility decision (see Woś v. Poland (dec.), no. 22860/02, ECHR 2005-IV). 38. In a decision of 12 January 1993 (no. I SA 1762/92), the Supreme Administrative Court stated that: “A foundation is not a civic organisation and therefore, in accordance with the Code of Administrative Procedure, it is not possible to delegate to a foundation power to determine individual cases by way of administrative decisions.” Consequently, a foundation’s decisions cannot be appealed against to the Supreme Administrative Court. 39. In a decision of 12 March 1993 (no. I ACr 133/93), the Warsaw Court of Appeal (Sąd Apelacyjny) held that: “The Foundation’s aims in respect of its capital fund, which are determined in the Foundation’s statute, do not create rights for other persons vis-à-vis the capital fund. Lack of legal protection for the entitlements of particular persons to receive benefit from the Foundation implies that a claim raised in this respect is not a civil one, and accordingly the jurisdiction of the [civil] courts is excluded.” 40. In 1997 the Ombudsman referred to the Supreme Court a question of law (pytanie prawne), as to whether decisions given by the bodies of the Foundation could be appealed against to the Supreme Administrative Court and, if not, whether they could be subjected to judicial review in civil proceedings. The Ombudsman relied, inter alia, on Article 45 of the Constitution and Article 6 § 1 of the Convention. In particular, the Ombudsman asked the Supreme Court to consider the following issues: (a) whether there was any legal provision excluding judicial review if a dispute arose between an individual and the Foundation; (b) whether the Foundation could be regarded as a body performing functions in the area of public administration, given that it served public aims with the use of public resources; (c) whether Article 1 § 2 and Article 5 § 2 (3) of the Code of Administrative Procedure constituted sufficient grounds to conclude that it could not perform any functions in the area of public administration; (d) whether the assessment of facts and law established by the Foundation also had a bearing on the claimant’s relationship with the Director of the Veterans and Persecuted Persons Office; (e) whether the decision to award or refuse to award compensation was not a purely technical act, since it was always preceded by a legal assessment of an individual case. 41. On 31 March 1998 the Supreme Court (Sąd Najwyższy) adopted Decision no. III ZP 44/97, holding that, since administrative functions could only be delegated by a statute, which was not the case with regard to the Polish-German Reconciliation Foundation, its decisions did not meet the requirements of an administrative decision and thus could not be challenged before the Supreme Administrative Court. However, the Supreme Court refused to give a definite answer to the question whether the Foundation’s decisions were subject to judicial review in civil proceedings. It nevertheless observed that entitlement to receive a benefit from the Foundation did not fall within the scope of civil law, and thus could not be raised before a civil court. In exceptional cases, such as where the claimant’s eligibility was established but the benefit had not been paid, a claim could arise under civil law. 42. The Supreme Court considered that the fact that the Foundation’s aims were the same as the aims which were to be achieved by the public authorities would not justify the conclusion that the PolishGerman Reconciliation Foundation performed functions in the area of public administration. Similarly, the manner in which the Foundation had been established and the nature of its tasks, common – in the Supreme Court’s view – to all foundations, could not support the above conclusion. 43. In a decision of 19 February 1999 (no. V SAB 7/99), the Supreme Administrative Court ruled: “The Polish-German Reconciliation Foundation does not perform any functions in the area of public administration, in that there is no legal provision giving it the competence to do so. It follows that, in view of the lack of statutory authority, decisions granting or refusing to grant compensation to a victim of the Nazi regime are not administrative decisions and cannot be challenged before the Supreme Administrative Court.” 44. In a decision of 5 October 2001 (no. III CZP 46/01), the Supreme Court ruled that a plaintiff’s claim seeking recognition of the fact that he had been subjected to forced labour during the Second World War could not be examined by a (civil) court. The Supreme Court considered that the awarding of compensation by the Foundation under the second compensation scheme did not create an individual right of a contractual nature. The Foundation decided whether the eligibility conditions for the granting of payment were established. Thus, according to the Supreme Court, the Foundation was not a debtor vis-à-vis the claimants, but acted as a decision-making body. The Foundation’s decisions merely created a legal basis for the awarding of compensation. The above situation did not, therefore, resemble civil-law relations. 45. In a decision of 3 December 2001 (no. OPS 3/01), the Supreme Administrative Court confirmed the earlier case-law to the effect that it did not have jurisdiction to review the decisions of the Foundation and observed: “The Polish-German Reconciliation Foundation, which awards benefits to the victims of Nazi persecution using the financial resources allocated to it by foreign entities, does not perform functions in the area of public administration. Thus, the source of the entitlement to receive an award from the Foundation does not stem from acts of the public administration.” It further observed: “There is no doubt that the Agreement of 16 October 1991 concluded between the Polish and German governments, which was not ratified, as well as subsequent acts [starting with the Joint Statement and the German Foundation Act] concerning grants of financial assistance by the Foundation on account of Nazi persecution do not fulfil the criteria which would make it possible to classify them as sources of binding Polish law. No administrative-law relation arises between a claimant and the Foundation on the basis of the aforementioned acts, and consequently the Foundation is not an organ of public administration established by law to determine cases in the sphere of public administration.”