SOKOLOWSKI v. POLAND
Inadmissible
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr Zygmunt Sokołowski, is a Polish national who was born in 1929 and lives in Poznan. The applicant’s parents owned a large metallurgical factory in Nowy Tomyśl. Following the outbreak of the Second World War, in the autumn of 1939 the property was taken over by the German occupying administration. The applicant’s entire family were evicted from their home, which was in the same town, put in a transit camp for a period and in December 1939 resettled to the Generalgouvernement, the eastern part of Poland under a special regime of German occupying administration. During the war the factory operated under a trustee appointed by the German administration (“Treuhaender”). When the applicant’s family returned in 1945, they found only the bare walls. All equipment had been stolen. After the war, in 1945, the Polish authorities instructed the applicant’s father to make a list of the damage that had been done to his property by the German occupying forces. He submitted the list to the local authorities in 1946. He estimated the amount of damage at 298,290 zlotys (PLZ). Until 1953 Germany paid war reparations to Poland on the basis of international agreements. The applicant’s parents did not, however, receive any compensation. In 1953 Poland had renounced its right to obtain further reparations from the then German Democratic Republic (see below, Relevant domestic and international law). In May 1999 the applicant requested the State Treasury, represented by the Wielkopolski Governor, to pay him compensation for damage caused in the part of the property owned by his mother as a result of the acts of the occupying German administration. On 11 February 2001 the Minister of Internal Affairs refused. The applicant appealed to the Supreme Administrative Court. By a judgment of 29 March 2001 that court dismissed the applicant’s appeal. It noted that it was not in dispute that the applicant’s mother’s property had been damaged by the German occupying administration, but considered that it had to examine whether the applicant’s claim was of such a character as to be determined by way of an administrative decision. It observed that it was true that Poland had obtained war reparations from Germany on the basis of international agreements and that these were intended to cover both damage sustained by the State and various forms of damage suffered by individuals. However, it held that neither the domestic nor international law provided for a substantive individual compensation claim on the part of former owners or their successors in title which could be determined by way of an administrative decision. In September 2001 the applicant submitted a compensation claim against the Ministry of State Treasury to the Warsaw–Śródmieście District Court concerning the part of the property owned by his father. By a judgment of 27 January 2003 the District Court dismissed that claim. In so far as the applicant had argued that his claim was based on liability in tort under Article 415 of the Civil Code, the court considered that the damage which his predecessor in title had sustained had originated from the acts of the German occupying administration. Hence, no civil obligations based on the law of tort could have arisen between the applicant and the State Treasury. Moreover, while it was true that the State had participated after the Second World War in international agreements concerning the war reparations to be paid to Poland, and that Germany had paid them in part, no international legal agreements had ever been concluded which would have imposed on the State an obligation to transfer to individuals the funds which it had received in war reparations from Germany. Likewise, no such obligation had been imposed on the State by the domestic law. It was true that in 1944 the Polish authorities had created a Ministry of War Reparations (Resort Odszkodowań Wojennych), but its competence had been limited to establishing the war damage caused in Poland by the German occupying administration and making relevant estimates with a view to obtaining reparations. Similarly, the Reconstruction Plan Act 1947 (Ustawa o Planie Odbudowy Gospodarczej) did not impose on relevant institutions an obligation to issue ordinances regulating compensation due to individuals. Consequently, the domestic law did not contain any regulation under which the applicant could claim compensation from the Polish State in respect of damage caused to individuals by the German occupying authorities during the war. The applicant appealed. He disagreed with the assertion that his claim had been based on legal provisions governing civil liability for tortious acts. He submitted that the first-instance court had breached the provisions of the Civil Code in so far as Article 417 thereof specifically established that the State had a civil liability for the acts of its agents. He further referred to Article 77 of the Constitution, which stated that everyone had the right to compensation for damage caused by the unlawful acts or omissions of public authorities. He submitted that, in his case, the State had failed in its obligation to issue legal regulations, in the form of an ordinance, entitling individuals to make substantive compensation claims in respect of war damage they had suffered. The obligation, in his view, originated from the Reconstruction Plan Act. He also referred to Article 1 of Protocol No. 1 to the Convention. The applicant further argued that the State had obtained reparations from Germany which, contrary to the opinion expressed in the proceedings by the State-Treasury representatives, were intended to cover both the State and individual damage. He referred to the judgment of the Supreme Administrative Court of 29 March 2001. In his submission, therefore, the State should have been obliged to pay him compensation from the funds it had received for that purpose. Under the rule of law a citizen could not legitimately be required to bear the adverse effects of the State’s failure to legislate. The Reconstruction Plan Act had entrusted responsibility for its execution to the Minister. The ordinary meaning of the phrase “entrusts the execution” had to be seen as imposing on the Minister an obligation to issue relevant ordinances which would make it possible for individuals to obtain compensation funded by war reparations. By a judgment of 13 May 2003 the Warsaw Regional Court dismissed the applicant’s appeal. It observed, firstly, that the first-instance court had failed to examine whether the Reconstruction Plan Act 1947 was still in force. It held that that Law had been enacted with the specific purpose of reorganising the economy through planning techniques. It had therefore lapsed at the end of 1948 following the implementation of the plan it had created and could not, therefore, serve as a source of any individual rights and obligations. Moreover, section 100 of the Act on which the applicant had relied, could not be regarded as authorisation for issuing the ordinance, as such statutory authorisation had to comply with precise conditions that were set out in Article 92 of the Constitution. Hence, the fact that no ordinance had been issued on the basis of that section could not be construed as a failure to act giving rise to the State’s liability in tort under Article 417 of the Civil Code. In any event, the transitional provisions of that Code, which had entered into force on 1 January 1965, had clearly provided that the legal consequences of civil obligations arising out of events that had occurred prior to that date had to be assessed in the light of the statutory provisions in force at the time the events took place. Hence, the civil liability of the State could not be examined in the light of Article 417 of the Civil Code, but only in the light of the Code of Obligations, which had been enacted in 1933. However, the Code of Obligations did not specifically regulate the State’s liability in tort. Civil liability in tort was governed only by general provisions and could arise only when it could be shown that the tortfeasor had acted unlawfully or had failed to act when required to do so. In the absence of any obligation on the State to legislate on individual compensation claims, it could not be said that the State had acted unlawfully and should have been held liable. The reparations which Poland had obtained from Germany constituted a debt of the latter towards the Polish State. No individual right vis-à-vis the State Treasury had been generated by the payment of reparations to the Polish Government. The Regional Court further accepted the reasoning of the lower court concerning the legal character of the provisions of the Reconstruction Plan Act. It reiterated that no individual right to compensation could be derived from it. The applicant lodged a cassation appeal with the Supreme Court, essentially reiterating his earlier arguments. By a judgment of 15 October 2003 the Supreme Court dismissed his cassation appeal. It observed that the applicant had asserted that his claim was based essentially on the State’s failure to enact ordinances providing for a detailed compensation mechanism for damage caused by the German occupying administration. However, no liability in tort could have arisen on the part of the State, as it had been under no obligation to introduce such legislation. Neither Article 417 of the Civil Code nor the provisions of the Code of Obligations of 1933 provided that mere inaction - provided it was not unlawful – could give rise to the State’s liability in tort. Section 100 of the Reconstruction Plan Act, contrary to the applicant’s assertion, did not impose any such obligation on the State. Nor could the court accept that the applicant’s claim could be based directly on the Constitution. For the State’s liability to arise towards an individual a statutory legal basis was necessary. Moreover, under the case-law of the Constitutional Court, Article 417 governing State liability could be applied only to events that occurred after the Constitution entered into force in 1997. In conclusion, the findings of the lower courts that the State’s conduct could not be qualified as unlawful were correct and had to be upheld. The Potsdam Agreement – an agreement on policy for the occupying and reconstruction of Germany after the Second World War and the German surrender of 8 May 1945 – was adopted by the three Heads of Government of the United States of America, the United Kingdom and the Union of Soviet Socialist Republics (“the Three Powers”) and set out, inter alia, the principles governing the payment of war reparations by Germany (Chapter III, “Reparations from Germany”). The issue of war reparations for Poland, which in accordance with the Potsdam Agreement were to be settled by the USSR from its share, was resolved by a bilateral treaty between the USSR and Poland: the Agreement of 16 August 1945 between the Polish Provisional Government of National Unity and the Government of the USSR on compensation for financial losses sustained during the German occupying administration (umowa między Tymczasowym Rządem Jedności Narodowej RP a Rządem ZSRR o wynagrodzeniu szkód finansowych wyrządzonych przez okupację niemiecką). In 1953 Poland expressly renounced further reparations in an agreement with the Democratic Republic of Germany (East Germany) and again in the Warsaw Treaty of 1970 with the Federal Republic of Germany (West Germany). The Reconstruction Plan Act was adopted on 2 July 1947. Its Section 1 read: “A National Economy Plan 1947 – 1949 (Reconstruction Plan) is hereby established.” Section 3 provided as follows: “The raising of living standards of the working class above their pre-war levels shall be the essential task of the national economy from 1947 until 1949.” Section 4 read, inter alia: “The task referred to above shall be carried out through ... b) war reparations.” Section 6 read: “Damage caused by the war shall be repaired in a manner corresponding to plans regarding reconstruction of the national economy; with due regard being had to the creation of basis for its necessary restructuring and growth during the next national planning periods and to preventing further deterioration of national property.” Section 100 provided: “The Council of Ministers and the ministers shall be responsible for implementing the provisions of this Act.” Articles 415 et seq. of the Polish Civil Code, which entered into force in 1964, provide for liability in tort. Under this provision, anyone who through his or her fault causes damage to another is required to repair it. 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 any damage caused by a State official in the performance of his or her duties.” On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (“the 2004 Amendment”) entered into force. The relevant amendments were in essence aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and provision for the State’s tortious liability for failure to enact legislation, a concept known as “legislative omission” (zaniechanie legislacyjne). Article 4171, 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.” 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. Article 77 § 1 of the 1997 Polish Constitution which entered into force on 17 October 1997, states, in so far as relevant, as follows: “Everyone shall have the right to compensation for any harm done to him or her by any act of a public authority in breach of the law.”