CASE OF SIERPINSKI v. POLAND
Violation of P1-1;No violation of Art. 6;Just satisfaction reserved
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
6. The applicant was born in 1933 and lives in Warszawa. 7. The applicant's family owned a plot of land situated in Warsaw. The applicant is the heir of the owners of that property. 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 applicant's predecessors requested to be granted the right of temporary ownership (własność czasowa) of the plot of land pursuant to section 7 of the 1945 Decree. On 27 December 1966 the Board of the Warsaw National Council (Prezydium Rady Narodowej) refused the request on the basis that the plot of land had been designated for public use (namely, an agricultural co-operative). 10. On 27 June 1967 the Warsaw-Mokotów District National Council (Prezydium Dzielnicowej Rady Narodowej) issued a decision granting the right of perpetual use of the plot of land to T. K. 11. On 23 January 1992 the applicant's predecessor Z.S. lodged an application with the Minister of Planning and Construction (Minister Gospodarki Przestrzennej i Budownictwa) for annulment of the administrative decision of 27 December 1966. On 10 February 1993 the Minister declared the decision null and void. 12. On 14 June 2000 the Local Government Board of Appeal (Samorządowe Kolegium Odwoławcze) declared that the decision of 27 June 1967 had been issued in breach of law. However, the Board refused to declare the decision null and void in view of its irreversible legal consequences – on the basis of the 1967 decision a civil contract had been concluded with the perpetual user of the land who, in 1990, had transferred the rights to the estate to his son. 13. On 3 March 2003 the Local Government Board of Appeal dismissed the applicant's claim for compensation in respect of the 1967 decision on the grounds that he had not proved “an actual loss” (see domestic law part below). 14. On 8 April 2003 the applicant lodged a compensation claim with the Warsaw Regional Court. 15. On 10 November 2004 the Regional Court delivered a judgment and awarded the applicant PLN 604,000. The court found that as a consequence of the unlawful 1967 decision the applicant had lost his property right and thus had suffered loss amounting to the value of that right. The court further considered that the State Treasury had the legal capacity to be sued for damages in this case. 16. The State Treasury, represented by the Mayor of Warsaw, appealed against the judgment, arguing that the municipality (gmina) should have been sued in this case. 17. On 14 July 2005 the Warsaw Court of Appeal allowed the appeal and dismissed the applicant's claim. The court, although it observed that the case-law had been divergent on the issue, inclined to the view expressed in a Supreme Court resolution of 16 November 2004, that the municipality – and not the State Treasury – had the legal capacity to be sued for damages resulting from an administrative decision issued before 27 May 1990, provided that the decision had been annulled or declared unlawful after that date (see domestic law part below). 18. The applicant lodged a cassation complaint. He submitted that the judgment was in breach of relevant substantive law on account of an erroneous interpretation of the Local Self-Government Act of 10 May 1990. He also invoked Articles 3984 § 1 (3) and 3989 of the Civil Procedure Code arguing that the examination of the cassation complaint was justified because there was a significant legal issue in the case and a need for an authoritative interpretation of provisions which had been interpreted differently in the courts' case-law. The applicant gave examples of divergent case-law of the Supreme Court and Courts of Appeal. He further pointed to the fact that the resolution invoked by the Warsaw Court of Appeal, amending the hitherto prevailing jurisprudence, had been delivered six days after the judgment of the Regional Court. 19. On 10 January 2006 the Supreme Court refused to entertain the cassation complaint. The decision was taken by a single judge sitting in camera and was not reasoned. 20. On 7 December 2006 a panel of seven judges of the Supreme Court adopted a resolution in other proceedings in which it concluded that the State Treasury had the legal capacity to be sued for damages caused by an administrative decision delivered before 27 May 1990, even if the decision had been annulled or declared null and void after that date. 21. On 5 February 2007 the applicant lodged a complaint with the Supreme Court seeking to have the judgment of the Court of Appeal of 14 July 2005 declared contrary to law (see the domestic law part). 22. On 15 June 2007 the Supreme Court rejected the complaint. The court concluded that the notion of the judgment “appealed from” within the meaning of Article 4241 § 3 of the Code of Civil Procedure (preventing the examination of the complaint – see the domestic law part) required that a cassation complaint against a judgment had been lodged “effectively”, meaning it had not been rejected. In the court's view a cassation complaint which the Supreme Court had refused to entertain should be understood, for the purpose of this Article, as an “effectively lodged cassation complaint”, as well as a cassation complaint which had been examined on the merits. The Supreme Court in its decision of 10 January 2006 refused to examine the applicant's cassation complaint. The Supreme Court thus concluded that the judgment of the Court of Appeal had been appealed against effectively and the complaint under Article 4241 was not available. 23. On 6 February 2005 new provisions on a “cassation complaint” came into effect, replacing the provisions concerning the cassation appeal. 24. Article 3981 of the Code of Civil Procedure provides that a party may lodge a cassation complaint against a final and valid judgment of a second-instance court. A party must be represented by an advocate or a legal adviser. 25. The relevant part of Article 3983 reads as follows: “The cassation complaint may be based on the following grounds: 1) a breach of substantive law caused by its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 26. Article 3984 specifies the requirements of a cassation complaint. It reads in its relevant part: “§ 1. A cassation complaint should include: 1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only; 2) an indication of the grounds for the cassation complaint; 3) arguments showing that its examination would be justified; 4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.” 27. Article 3989 provides: 1. The Supreme Court shall entertain the cassation complaint if: 1) there is a significant legal issue in the case, 2) there is a need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts' case-law, 3) the proceedings are invalid at law, 4) the complaint is manifestly well-founded. 2. The Supreme Court shall decide to accept or refuse to entertain the cassation complaint during a sitting in camera; the decision shall not require written reasons. 28. According to Article 39810 a cassation is examined by a panel of three judges and in all other cases the Supreme Court takes decisions sitting in a single judge formation. As a rule, the cassation complaint is examined at a sitting in camera unless there is a significant legal issue in the case and the party lodging a complaint requested a hearing to be held, or the Supreme Court finds it appropriate to hold a hearing (Article 39811). 29. Pursuant to Article 39815 the Supreme Court, having allowed a cassation complaint, may quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court fails to find non-conformity with the law, it dismisses the cassation complaint (Article 39814). 30. An amendment of 22 December 2004 to the Code of Civil Procedure, which entered into force on 6 February 2005, introduced a new extraordinary remedy against a final judicial decision – a complaint to declare a final and binding ruling to be contrary to law (skarga o stwierdzenie niezgodności z prawem prawomocnego orzeczenia). 31. According to Article 4241, a party to the proceedings may request the Supreme Court to declare a final decision of a second-instance court to be contrary to law, provided that the party has suffered damage as a result of that decision and it has been impossible to have the decision reversed or quashed by way of remedies available to the party. 32. Pursuant to § 3 of that Article a party cannot lodge a complaint against a second-instance decision which had already been challenged by way of a cassation, or against a decision issued by the Supreme Court. 33. The new regulations have been challenged before the Constitutional Court. In a judgment of 30 May 2007 (SK 68/06) the Constitutional Court found the new Article 3989 incompatible with the Constitution, but only insofar as it allowed the Supreme Court to refrain from giving reasons for its decisions. 34. In this respect the Constitutional Court referred, inter alia, to its judgment of 16 January 2006 (SK 30/05), in which it had already examined the possibility of the Supreme Court under the Criminal Procedure Code (Article 535 § 2) to dismiss an “evidently groundless” cassation appeal in a criminal case at a sitting without the participation of the parties and without giving written reasons for the judgment. The court found in this respect that “there is the accumulation at a single trial of three factors excluding the court's obligations as regards the provision of information (i.e. the informational obligation of the court). These are: secrecy of the proceedings; the use of the ambiguous term “evidently groundless” by the legislator; and the absence of an obligation that reasons be provided.” 35. Article 79 § 1 of the Constitution, which entered into force on 17 October 1997, provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” 36. Article 190 of the Constitution, insofar as relevant, provides as follows: “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court, ... shall be published without delay. 3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ... 4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.” 37. Article 39 of the Constitutional Court Act reads: “1. The Court shall, at a sitting in camera, discontinue the proceedings: 1) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible; 2) in consequence of the withdrawal of the application, question of law or constitutional complaint; 3) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the Tribunal. 2. If these circumstances come to light at the hearing, the Tribunal shall take a decision to discontinue the proceedings. 3. Item 1 (3) of the present Article does not apply if giving a decision on the compatibility with the Constitution of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights.” 38. Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which the judgment was given was incompatible with the Constitution. Such a request can be lodged with the competent court within one month from the date of the judgment of the Constitutional Court. 39. The Decree of 26 October 1945 on real property in Warsaw expropriated real property situated in Warsaw and transferred ownership to the municipality of Warsaw. 40. Pursuant to section 33(2) of the Local State Administration Act of 20 March 1950, ownership of property situated in Warsaw was assigned to the State Treasury. 41. 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. 42. 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 local self-government and municipalities and transferred to them powers that had previously been exercised solely by the local State administration. Pursuant to section 5(1), ownership of land which had previously been held by the State Treasury and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality. 43. Section 36 § 3 (3) of the Act provides: “The State Treasury takes over: 3) obligations and receivables of local bodies of state administration (...) resulting from final and binding court rulings and administrative decisions delivered before 27 May 1990 (...).” 44. Under Article 7 of the 1945 Decree, former owners had the right to lodge an application for temporary ownership of his plots (własność czasowa). The authorities competent to deal with such applications first had to examine whether the plots concerned had not been designated for public use. If he considered that granting temporary ownership to former owners would not be incompatible with public use, a decision could be made in favour of the former owner. 45. Article 40 of the Law of 14 July 1961 on Administration of Land in Towns and Estates (ustawa o gospodarce terenami w miastach i osiedlach) replaced temporary ownership with perpetual use (użytkowanie wieczyste). 46. The right to perpetual use is regulated by the Civil Code. An individual or a legal entity may be granted such a right over land owned by the State or a local authority. The right comprises a right to use the land to the exclusion of others for ninety-nine years, on payment of a yearly fee. The person entitled to the right can dispose of it. 47. Article 155 of the Code of Administrative Procedure permits the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest, if this is not prohibited by specific legal provisions. In particular, pursuant to Article 156, a final administrative decision is subject to annulment if it has been issued by an authority which had no jurisdiction, or if it is without a legal basis or contrary to the applicable laws. 48. Article 160 of the Code of Administrative Procedure, as applicable at the material time, read in its relevant part: “A person who has suffered loss on account of the issuing of a decision in a manner contrary to Article 156 § 1 or on account of the annulment of such a decision shall have a claim for compensation for actual loss, unless he has been responsible for the circumstances mentioned in this provision.” 49. An administrative decision in respect of the compensation claim could be appealed against in a civil court. 50. Section 36 § 3 (3) of the 1990 Act raised doubts as to which legal entity was liable for damages caused by an unlawful administrative decision issued before the administrative reform. The problem was subject to divergent judicial interpretation. 51. On 16 November 2004 a panel of three judges of the Supreme Court adopted a resolution (no. III CZP 64/04), finding that the municipality – and not the State Treasury – had the legal capacity to be sued for damages resulting from an administrative decision issued before 27 May 1990, provided that the decision had been annulled or declared unlawful after that date. 52. In its resolution of 7 December 2006 (no. III CZP 99/06), adopted by a panel of seven judges, the Supreme Court concluded that the State Treasury had the capacity to be sued for damages caused by an administrative decision delivered before 27 May 1990, even if the decision had been annulled or declared null and void after that date. The resolution was adopted following a legal question referred to the Supreme Court by another Court of Appeal having a similar case before it. 53. The Supreme Court confirmed this stance in several subsequent judgments, delivered in cases similar to the present one (see below). 54. On 21 March 2001 the Opolskie Governor declared that the decision of 1983 of the Head of municipality D. had been adopted in breach of law. The plaintiff's claim for compensation against the State Treasury (Opolskie Governor) was dismissed by the first- and second-instance courts. In particular, the Court of Appeal, invoking the resolution of the Supreme Court of 16 November 2004 (ref no. Ill CZP 64/04), considered that the State Treasury did not have the legal capacity to be sued in that case since municipality D. had taken over its obligations under Article 36 § 1 of the 1990 Introductory Provisions Act. The Supreme Court quashed the appellate judgment and remitted the case, relying on the above-mentioned resolution of 7 December 2006. 55. In 1951 the Presidium of the Warsaw National Council refused to grant the right of perpetual use of land covered by the operation of the 1945 Decree. Subsequently, the State Treasury sold three flats in the building. On 22 September 1994 the Minister of Construction declared that the decision of 1951 had been adopted in breach of law. The plaintiffs lodged a civil action for compensation against the State Treasury. The Warsaw Regional Court allowed his claim in part and awarded compensation from the State Treasury. On 31 January 2006 the Warsaw Court of Appeal amended the firstinstance judgment and dismissed the claim against the State Treasury finding that it lacked legal capacity to be sued in the case. On 14 March 2007 the Supreme Court quashed the appellate judgment and remitted the case, invoking the resolution of 7 December 2006. 56. In its judgment of 27 November 2002 (no. I CKN 1215/00), the Supreme Court ruled that there was a causal link between an administrative decision, taken under the 1945 Decree, refusing to grant the previous owner of a real property (a land with a building) the right of temporary ownership (perpetual use) of that property and the sale of apartments in the building by the State Treasury. 57. On 21 March 2003 the Supreme Court adopted a resolution (no. III CZP 6/03) in which it found that financial loss resulting from a decision under the 1945 Decree refusing to grant the right of perpetual use, which had been issued in breach of law, constituted a loss within the meaning of Article 361 § 2 of the Civil Code and an actual damage within the meaning of Article 160 of CAP.