One of the major difficulties in human rights law is the issue of how to deal with past violations. Can human rights law solve all such problems of the past? The answer is clearly no; in most cases because such massive or systemic violations often took place before accession of the state concerned to the human rights treaties. Problems of the past receive special attention in the case of the right to property. No issue can occupy minds so much as the loss of land in the distant past. One cannot overlook, when discussing injustice, the injustices of the past. In Europe the past has enormous relevance due to the many wars and their aftermath. World War II is an example of the magnitude of the problems of land and other properties. Before and during the war land and properties of tens of millions of people were destroyed or arbitrarily seized or confiscated. In fact, the acts of discrimination of the Jewish population in Germany in the thirties started with the confiscation of property. But even after the war, between 1945 and 1952, 31 million people were uprooted and expelled from their home country, leaving their homesteads and almost all their valuables behind, with no possibility to contest such losses in court. Very few managed like Mr. Broniowsky, whose fate is described below, to have their case heard. And Mr. Broniowsky’s family had to wait sixty years. Broniowsky v. Poland
The European Court of Human Rights
Application No. 31443/96
Judgement of 22 June 2004 (Grand Chamber)
Keywords: property - ratione temporis - systemic violations - land - entitlement - continuous violation
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant, Mr Jerzy Broniowski, is a Polish national, who was born in 1944 and lives in Wieliczka, MaBopolska Province, in Poland.
A. Historical background
10. The eastern provinces of pre-war Poland were (and in dated usage still are) called “Borderlands”[?]. They included large areas of present-day Belarus and Ukraine and territories around Vilnius in what is now Lithuania. Later, when after the Second World War Poland’s eastern border was fixed along the Bug River (whose central course formed part of the Curzon line), the “Borderlands” acquired the name of “territories beyond the Bug River” [?]. Those regions had been invaded by the USSR in September 1939.
11. Following the Yalta and Potsdam Conferences, where the new border between the Soviet Union and Poland along the Curzon line had been agreed, and subsequent agreements concluded between the Polish Committee of National Liberation [?] and the former Soviet Socialist Republics of Ukraine (on 9 September 1944), Belarus (on 9 September 1944) and Lithuania (on 22 September 1944) (“the Republican Agreements”), the Polish State took upon itself the obligation to compensate persons who were “repatriated” from the “territories beyond the Bug River” and had to abandon their property there. Such property is commonly referred to as “property beyond the Bug River” [?].
12. The Polish Government estimated that from 1944 to 1953 some 1,240,000 persons were “repatriated” under the provisions of the Republican Agreements. At the oral hearing, the parties agreed that the vast majority of repatriated persons had been compensated for loss of property caused by their repatriation.
In that connection, the Government also stated that, on account of the delimitation of the Polish-Soviet State border – and despite the fact that Poland was “compensated” by the Allies with former German lands east of the Oder-Neisse line – Poland suffered a loss of territory amounting to 19.78%.
B. The circumstances of the case
13. The facts of the case, as submitted by the parties, may be summarised as follows. [?]
14. After the Second World War, the applicant’s grandmother was repatriated from Lwów (now Lviv in Ukraine). On 19 August 1947 the State Repatriation Office [?] in Cracow issued a certificate attesting that she had owned a piece of real property in Lwów and that the property in question consisted of approximately 400 sq. m of land and a house with a surface area of 260 sq. m. [?]
19. The applicant’s mother died on 3 November 1989. On 29 December 1989 the Cracow District Court gave a decision declaring that the applicant had inherited the whole of his late mother’s property. [?]
37. On 30 January 2004, by virtue of the Law of 12 December 2003 on offsetting the value of property abandoned beyond the present borders of the Polish State against the price of State property or the fee for the right of perpetual use ([?] (“the December 2003 Act”), the State’s obligations towards persons who, like the applicant, have obtained some compensatory property under the previous statutes are considered to have been discharged [?]
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
121. The applicant alleged a breach of Article 1 of Protocol No. 1 to the Convention in that his entitlement to compensation for property abandoned in the territories beyond the Bug River, the so-called “right to credit”, had not been satisfied. [?]
A. Scope of the case before the Court
122. Determining the scope of its jurisdiction ratione temporis in the decision on the admissibility of the application, the Court found that the applicant’s grievance did not concern a single specific measure or decision taken before, or even after, 10 October 1994, the date of ratification of Protocol No. 1 by Poland. The crux of the applicant’s Convention claim lay in the State’s failure to satisfy his entitlement to compensatory property, which had been continuously vested in him under Polish law.
Noting that that entitlement had been conferred on him on the date of ratification and subsisted both on 12 March 1996, the date on which he had lodged his application with the Commission, and on 19 December 2002, the date of its decision on admissibility, the Court held that it had temporal jurisdiction to entertain the application. It also held that it could have regard to the facts prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date or might be relevant for the understanding of facts occurring after that date (see Broniowski v. Poland (dec.) [GC], no. 31443/96, ECHR 2002-X,§ 74-77).
123. However, the date from which the Court has jurisdiction ratione temporis not only marks the beginning the period throughout which, up to the present day, acts or omissions of the Polish State will be assessed by the Court from the point of view of their compliance with the Convention, but is also relevant for the determination of the actual content and scope of the applicant’s legal interest guaranteed by Polish law to be considered under Article 1 of Protocol No. 1.
124. While the historical background of the case, including the post-war delimitations of State borders, the resultant migration of persons affected by those events and the Republican Agreements, in which the applicant’s entitlement to compensation originated [?], is certainly important for the understanding of the complex legal and factual situation obtaining today, the Court will not consider any legal, moral, social, financial or other obligations of the Polish State arising from the fact that owners of property beyond the Bug River were dispossessed and forced to migrate by the Soviet Union after the Second World War. In particular, it will not deal with the issue whether Poland’s obligation under the Republican Agreements to return to those persons the value of the property abandoned in the former Soviet republics might have any bearing on the scope of the applicant’s right under domestic legislation and under the Convention and whether Poland honoured the obligations it had taken upon itself by virtue of those Agreements.
125. The sole issue before the Court is whether Article 1 of Protocol No. 1 was violated by reason of the Polish State’s acts and omissions in relation to the implementation of the applicant’s entitlement to compensatory property, which was vested in him by Polish legislation on the date of the Protocol’s entry into force and which subsisted on 12 March 1996, the date on which he lodged his application with the Commission. [?]
The Court’s assessment
129. The concept of “possessions” in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to the ownership of material goods and is independent from the formal classification in domestic law. In the same way as material goods, certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see Iatridis v. Greece[GC], no. 31107/96,§ 54, ECHR 1999-II, and Beyeler v. Italy [GC], no. 33202/96,§ 100, ECHR 2000-I).130. When declaring the application admissible, the Court rejected the Government’s arguments as to the inapplicability of Article 1 of Protocol No. 1. It found that the applicant had a proprietary interest eligible for protection under that Article. It further noted that the applicant’s entitlement had continuously had a legal basis in domestic legislation which had subsisted after 10 October 1994 and that it was defined by the Polish Supreme Court as, inter alia, a “debt chargeable to the State Treasury” which had “a pecuniary and inheritable character” (see Broniowski v. Poland (dec.), cited above,§ 97-101).
131. Subsequently, when ruling in December 2002 on the application brought by the Ombudsman [?], the Constitutional Court described the applicant’s entitlement as the “right to credit”, having a “special nature as an independent property right”, which “should be recognised as enjoying the constitutionally guaranteed protection of property rights” and which was a “special property right of a public-law nature”. While the Constitutional Court accepted that the materialisation of that right depended on action by an entitled person, it rejected the idea that the right did not exist until its realisation through a successful bid at an auction for the sale of State property. In sum, the Constitutional Court had no doubts that the right to credit was subject to protection under Article 1 of Protocol No. 1 [?].
In the judgment of 21 November 2003 that followed the above ruling, the Polish Supreme Court considered that the right to credit was a “particular proprietary right” of a “pecuniary value”, which was “inheritable and transferable in a specific manner” and whose substance consisted in “the possibility of having a certain pecuniary obligation satisfied through the use of the so-called ‘Bug River money’ ” [?].
The Court subscribes to the analysis, in Convention terms, made by the highest Polish judicial authorities of the entitlement which was conferred on the applicant by Polish legislation. It finds nothing in the Government’s present arguments to change the conclusion that, as has already been established in the decision on admissibility, the applicant’s right to credit constitutes a “possession” within the meaning of Article 1 of Protocol No. 1. [?]
C. Compliance with Article 1 of Protocol No.1
1. Applicable rule of Article 1 of Protocol No.1
134. Article 1 of Protocol No. 1 comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, inter alia, to control the use of property in accordance with the general interest. The three rules are not, however, distinct in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among other authorities, James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 29-30,§ 37, which reiterates in part the principles laid down by the Court in the case of Sporrong and Lönnroth v. Sweden , judgment of 23 September 1982, Series A no. 52, p. 24,§ 61; see also Iatridis v Greece,§ 55, and Beyeler v. Italy § 98, judgments cited above).
135. The parties did not take clear positions on the question under which rule of Article 1 of Protocol No. 1 the case should be examined. While neither of them argued that the situation complained of had resulted from measures designed to “control the use of property” within the meaning of the second paragraph, the applicant alleged that there had been a general failure by the State to satisfy his right, and the Government maintained that neither any failure to respect that right nor any interference with it could be attributed to the authorities [?].
136. Having regard to the complexity of the legal and factual issues involved in the present case, the Court considers that the alleged violation of the right of property cannot be classified in a precise category. In any event, the situation mentioned in the second sentence of the first paragraph is only a particular instance of interference with the right to peaceful enjoyment of property as guaranteed by the general rule laid down in the first sentence (see—Beyeler v. Italy, cited above,§ 106). The case should therefore more appropriately be examined in the light of that general rule.
143. The essential object of Article 1 of Protocol No. 1 is to protect a person against unjustified interference by the State with the peaceful enjoyment of his or her possessions.
However, by virtue of Article 1 of the Convention, each Contracting Party “shall secure to everyone within [its] jurisdiction the rights and freedoms defined in ? [the] Convention”. The discharge of this general duty may entail positive obligations inherent in ensuring the effective exercise of the rights guaranteed by the Convention. In the context of Article 1 of Protocol No. 1, those positive obligations may require the State to take the measures necessary to protect the right of property (see Sovtransavto Holding v. Ukraine, no. 48553/99,§ 96, ECHR 2002-VII, with further references, and, mutatis mutandis, Keegan v. Ireland , judgment of 26 May 1994, Series A no. 290, p. 19,§ 49, and Kroon and Others v. the Netherlands, judgment of 27 October 1994, Series A no. 297-C, p. 56,§ 31).
144. However, the boundaries between the State’s positive and negative obligations under Article 1 of Protocol No. 1 do not lend themselves to precise definition. The applicable principles are nonetheless similar. Whether the case is analysed in terms of a positive duty on the State or in terms of an interference by a public authority which requires to be justified, the criteria to be applied do not differ in substance. In both contexts regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole. It also holds true that the aims mentioned in that provision may be of some relevance in assessing whether a balance between the demands of the public interest involved and the applicant’s fundamental right of property has been struck. In both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see, mutatis mutandis, Keegan v. Ireland, cited above,§ 49, and Hatton and Others v. the United Kingdom [GC], no. 36022/97,§ 98 et seq., ECHR 2003-VIII).
145. In the present case, the applicant’s submission under Article 1 of Protocol No. 1 is that the Polish State, having conferred on him an entitlement to compensatory property, subsequently made it impossible for him – by obstruction and inaction, both legislative and administrative, and by extralegal practices– to benefit from that entitlement and that, ultimately, by virtue of the recent legislation, it extinguished his legal interest [?].
The mutual interrelation of the alleged omissions on the part of the State and of accompanying acts that might be regarded as an “interference” with the applicant’s property right makes it difficult to classify them in a single precise category. As shown by the course of the events described above, culminating in the enactment of the December 2003 legislation, the facts of “commission” and’“omission” were closely intertwined [?].
Also, the legal and practical consequences of those facts and the State’s conduct were variously assessed by the national courts; for instance, the Constitutional Court considered that the laws restricting the Bug River claimants’ access to State property had resulted in de facto expropriation [?]. Some civil courts considered that the State was liable for damage sustained by the Bug River claimants on account of both the fact that it had imposed unjustified restrictions on the exercise of the right to credit and the fact that it had failed to fulfil its positive obligations to protect property rights and duly to publish the Republican Agreements [?]. The Supreme Court held that the State’s practices did not amount to a deprivation of property, but had nevertheless unduly restricted the right in question [?].
146. The facts of the case may well be examined in terms of a hindrance to the effective exercise of the right protected by Article 1 of Protocol No. 1 or in terms of a failure to secure the implementation of that right. Having regard to the particular circumstances of the present case, the Court considers it unnecessary to categorise strictly its examination of the case as being under the head of the State’s positive obligations or under the head of the State’s negative duty to refrain from an unjustified interference with the peaceful enjoyment of property.
The Court will determine whether the conduct of the Polish State – regardless of whether that conduct may be characterised as an interference or as a failure to act, or a combination of both – was justifiable in the light of the applicable principles set out below.
3. General principles
(a) Principle of lawfulness
147. The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Former King of Greece and Others v. Greece [GC], no. 25701/94,§ 79, ECHR 2000-XII, with further references, and Iatridis v. Greece, cited above§ 58).
The principle of lawfulness also presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see the Beyeler judgment cited above,§ 109-110).
(b) Principle of a legitimate aim in the public interest
148. Any interference with the enjoyment of a right or freedom recognised by the Convention must pursue a legitimate aim. By the same token, in cases involving a positive duty, there must be a legitimate justification for the State’s inaction. The principle of a “fair balance” inherent in Article 1 of Protocol No. 1 itself presupposes the existence of a general interest of the community. Moreover, it should be reiterated that the various rules incorporated in Article 1 are not distinct, in the sense of being unconnected, and that the second and third rules are concerned only with particular instances of interference with the right to the peaceful enjoyment of property. One of the effects of this is that the existence of a—“public interest” required under the second sentence, or the “general interest” referred to in the second paragraph, are in fact corollaries of the principle set forth in the first sentence, so that an interference with the exercise of the right to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 must also pursue an aim in the public interest (see the Beyeler judgment, cited above,§ 111).
149. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures to be applied in the sphere of the exercise of the right of property, including deprivation and restitution of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation.
Furthermore, the notion of “public interest” is necessarily extensive. In particular, the decision to enact laws expropriating property or affording publicly-funded compensation for expropriated property will commonly involve consideration of political, economic and social issues. The Court has declared that, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, it will respect the legislature’s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see the above-cited judgments James and Others, p. 32,§ 46, and Former King of Greece and Others,§ 87). This logic applies to such fundamental changes of a country’s system as the transition from a totalitarian regime to a democratic form of government and the reform of the State’s political, legal and economic structure, phenomena which inevitably involve the enactment of large-scale economic and social legislation.
(c) Principle of a “fair balance”
150. Both an interference with the peaceful enjoyment of possessions and an abstention from action must strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, among other authorities, the Sporrong and Lönnroth judgment, cited above, p. 26,§ 69).
The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measures applied by the State, including measures depriving a person of his of her possessions. In each case involving the alleged violation of that Article the Court must, therefore, ascertain whether by reason of the State’s action or inaction the person concerned had to bear a disproportionate and excessive burden (see the above-cited judgments Sporrong and Lönnroth,§ 73, and Former King of Greece and Others,§ 89-90, with further references).
151. In assessing compliance with Article 1 of Protocol No. 1, the Court must make an overall examination of the various interests in issue, bearing in mind that the Convention is intended to safeguard rights that are “practical and effective”. It must look behind appearances and investigate the realities of the situation complained of. That assessment may involve not only the relevant compensation terms – if the situation is akin to the taking of property – but also the conduct of the parties, including the means employed by the State and their implementation. In that context, it should be stressed that uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is a factor to be taken into account in assessing the State’s conduct. Indeed, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner (see Vasilescu v. Romania , judgment of 22 May 1998, Reports of Judgments and Decisions 1998-III, p. 1078,§ 51; Beyeler, cited above,§ 110 in fine, 114 and 120 in fine; Sovtransavto Holding, cited above,§ 97-98).
154. The Court notes that, as the applicant conceded, the restrictions on his right were indeed introduced through several statutes (see paragraphs 49, 59 and 114-119 above). It is true that the legal provisions, which up to the entry into force of the Constitutional Court’s judgment had prevented him from materialising his entitlement, were found to be incompatible with the rule of law and the principle of protection of property rights [?]. It is also true that some Polish civil courts and, most notably, the Supreme Court, regarded the situation obtaining after the entry into force of the Constitutional Court’s judgment, in particular the authorities’ practices, to be unacceptable and contrary to the rule of law. The Cracow Regional Court called it, inter alia, a “state of lawlessness” [?].
However, in the Court’s opinion, those findings and the consequences they entail from the point of view of compliance with Article 1 of Protocol No. 1 are material considerations to be taken into account in determining whether the Polish authorities, in applying various impugned measures or in refraining from action, struck a fair balance between the interests involved. The Court will therefore proceed on the assumption that, in so far as the acts and omissions of the Polish State constituted interferences or restrictions on the exercise of the applicant’s right to the peaceful enjoyment of his possessions, they were “provided for by law” within the meaning of Article 1 of Protocol No. 1.
182. The Court accepts that in situations such as the one in the present case, involving a wide-reaching but controversial legislative scheme with significant economic impact for the country as a whole, the national authorities must have considerable discretion in selecting not only the measures to secure respect for property rights or to regulate ownership relations within the country, but also the appropriate time for their implementation. The choice of measures may necessarily involve decisions restricting compensation for the taking or restitution of property to a level below its market value. Thus, Article 1 of Protocol No. 1 does not guarantee a right to full compensation in all circumstances (see James and Others cited above,§ 54).
Balancing the rights at stake, as well as the gains and losses of the different persons affected by the process of transforming the State’s economy and legal system, is an exceptionally difficult exercise. In such circumstances, in the nature of things, a wide margin of appreciation should be accorded to the respondent State.
Nevertheless, the Court would reiterate that that margin, however considerable, is not unlimited and that the exercise of the State’s discretion, even in the context of the most complex reform of the State, cannot entail consequences at variance with Convention standards [?].
183. Whilst the Court accepts that the radical reform of the country’s political and economic system, as well as the state of the country’s finances, may justify stringent limitations on compensation for the Bug River claimants, the Polish State has not been able to adduce satisfactory grounds justifying, in terms of Article 1 of Protocol No. 1, the extent to which it has continuously failed over many years to implement an entitlement conferred on the applicant, as on thousands of other Bug River claimants, by Polish legislation.
184. The rule of law underlying the Convention, and the principle of lawfulness in Article 1 of Protocol No. 1, require States not only to respect and apply, in a foreseeable and consistent manner, the laws they have enacted, but also, as a corollary of this duty, to ensure the legal and practical conditions for their implementation [?]. In the context of the present case, it was incumbent on the Polish authorities to remove the existing incompatibility between the letter of the law and the State-operated practice which hindered the effective exercise of the applicant’s right of property. Those principles also required the Polish State to fulfil in good time, in an appropriate and consistent manner, the legislative promises it had made in respect of the settlement of the Bug River claims. This was a matter of important public and general interest [?]. As rightly pointed out by the Polish Constitutional Court [?], the imperative of maintaining citizens’ legitimate confidence in the State and the law made by it, inherent in the rule of law, required the authorities to eliminate the dysfunctional provisions from the legal system and to rectify the extra-legal practices.
185. In the present case, as ascertained by the Polish courts and confirmed by the Court’s analysis of the respondent State’s conduct, the authorities, by imposing successive limitations on the exercise of the applicant’s right to credit, and by applying the practices that made it unenforceable and unusable in practice, rendered that right illusory and destroyed its very essence.
The state of uncertainty in which the applicant found himself as a result of the repeated delays and obstruction continuing over a period of many years, for which the national authorities were responsible, was in itself incompatible with the obligation arising under Article 1 of Protocol No. 1 to secure the peaceful enjoyment of possessions, notably with the duty to act in good time, in an appropriate and consistent manner where an issue of general interest is at stake (see paragraph 152 above).
186. Furthermore, the applicant’s situation was compounded by the fact that what had become a practically unenforceable entitlement was legally extinguished by the December 2003 legislation, pursuant to which the applicant lost his hitherto existing entitlement to compensation. Moreover, this legislation operated a difference of treatment as between Bug River claimants in so far as those who had never received any compensation were awarded an amount which, although subject to a ceiling of 50,000 PLN, was a specified proportion (15%) of their entitlement, whereas claimants in the applicant’s position, who had already been awarded a much lower percentage, received no additional amount (see paragraphs 115 and 118-119 above).
As stated above (see paragraphs 134 and 182), under Article 1 of Protocol No. 1 the State is entitled to expropriate property – including any compensatory entitlement granted by legislation – and to reduce, even substantially, levels of compensation under legislative schemes. This applies, particularly, to situations in which the compensatory entitlement does not arise from any previous taking of individual property by the respondent State, but is designed to mitigate the effects of a taking or loss of property not attributable to that State. What Article 1 of Protocol No. 1 requires is that the amount of compensation granted for property taken by the State be “reasonably related” to its value [?]. It is not for the Court to say in the abstract what would be a “reasonable” level of compensation in the present case. However, given that – as acknowledged by the Government [?] – the applicant’s family had received merely 2 % of the compensation due under the legislation as applicable before the entry into force of the Protocol in respect of Poland, the Court finds no cogent reason why such an insignificant amount should per se deprive him of the possibility of obtaining at least a proportion of his entitlement on an equal basis with other Bug River claimants.
(d) General conclusion
187. Having regard to all the foregoing factors and in particular to the impact on the applicant over many years of the Bug River legislative scheme as operated in practice, the Court concludes that, as an individual, he had to bear a disproportionate and excessive burden which cannot be justified in terms of the legitimate general community interest pursued by the authorities.
There has therefore been a violation of Article 1 of Protocol No. 1 in the applicant’s case.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government’s preliminary objection;
2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
3. Holds that the above violation has originated in a systemic problem connected with the malfunctioning of domestic legislation and practice caused by the failure to set up an effective mechanism to implement the “right to credit” of Bug River claimants;
4. Holds that the respondent State must, through appropriate legal measures and administrative practices, secure the implementation of the property right in question in respect of the remaining Bug River claimants or provide them with equivalent redress in lieu, in accordance with the principles of protection of property rights under Article 1 of Protocol No. 1;
5. Holds that, as far as the financial award to the applicant for any pecuniary or non-pecuniary damage resulting from the violation found in the present case is concerned, the question of the application of Article 41 is not ready for decision and accordingly,
(a) reserves the said question as a whole;
(b) invites the Government and the applicant to submit, within six months from the date of notification of this judgment, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Court the power to fix the same if need be;
The Broniowsky case is illustrative for various reasons. It is about the protection of rights to land, which in many countries has been subject to reforms, destruction and other forms of violations. It shows for example the often-fuzzy context within which solutions for systemic violations have to be sought.
As stated in the above case, more than a million people suffered a fate comparable to that of the Broniowsky family. Many of them were given back land or at least some form of compensation. Some, however, lost all rights and will not be able to recover their property. Some 80.000 are thought to be in a similar position as the Broniowsky’s: they still have rights that can possibly be made effective.
If someone lost his/her property due to a final Court decision before the entry into force of the Convention, even if that loss was, in hindsight, not in compliance with P1-1, it cannot be claimed anymore.
On the other hand, any taking which was illegal at its inception and never had this defect remedied prior to the entry into force of the Convention can be seen as a continuing violation of its requirements. It can thus be the subject of a successful application to the European Court of Human Rights. This was established in Vasilescu v. Romania (Application No. 27053/95, Judgement of 22 May 1998) where jewellery had been illegally seized by the police and all efforts to bring proceedings to secure its recovery had been fruitless. The European Court of Human Rights considered that the applicant’s complete loss of any ability to dispose of her property was enough, when taken with the failure of all attempts to remedy this situation, to amount to a de facto confiscation incompatible with the right to peaceful enjoyment of possessions assured by Protocol No 1. Such a ruling would be equally applicable to land or premises occupied by state authorities without any legal basis.
The European Court pays attention in paragraph 182 to the potentially enormous economic problems that the respondent state faces when it tries to deal with a systemic violation. It emphasises its understanding and underlines the wide margin of appreciation that a state has in dealing with such difficult questions. However, that margin is not unlimited. A state must comply with the Convention, even if the violations are of a systemic nature.
The following case,Fábryová v. The Czech Republic , gives an indication of how issues related to property rights are brought before the Human Rights Committee, even if the ICCPR does not contain a provision protecting property rights. In this case, Article 26 on non-discrimination was invoked. Many applicants have tried to claim property before the Human Rights Committee under the right to non- discrimination.
Human Rights Committee
Communication No. 765/1997
Views of 30 October 2001
Keywords: equal before the law - property - lawfulness
1. The author of the communication is Eliska Fábryová, née Fischmann, a Czech citizen, born on 6 May 1916. The author claims to be a victim of discrimination by the Czech Republic. The Optional Protocol entered into force for the Czech Republic on 12 June 19911.
The facts as submitted by the author
2.1 The author’s father Richard Fischmann owned an estate in Puklice in the district of Jihlava, Czechoslovakia. In 1930, at a national census, he and his family registered as Jews. In 1939, after the occupation by the Nazis, the estate was “aryanised” band a German sequestrator was appointed. Richard Fischmann died in 1942 in Auschwitz. The author is not represented by counsel.
2.2 The rest of the family was interned in concentration camps and only the author and her brother Viteslav returned. In 1945, the estate of Richard Fischmann was confiscated under Benes decree 12/1945 because the district committee decided that he was German as well as a traitor to the Czech Republic, the assumption that he was German being based on the assertion that he had lived “in a German way”.
2.3 The author’s appeal against the confiscation was dismissed. The decision of the district committee was upheld by a judgment of the highest administrative court in Bratislava on 3 December 1951.
2.4 After the end of communist rule in Czechoslovakia, the author lodged a complaint to the General procurator, on 18 December 1990, for denial of justice with regard to her claim for restitution. Her complaint was dismissed on 21 August 1991 for being out of time, having been lodged more than five years after the confiscation. The author states that under Communist rule it was not possible to lodge a complaint within the time limit of five years as prescribed by law.
2.5 The author states that on 17 June 1992 she applied for restitution according to the law No. 243/19924. Her application was dismissed on 14 October 1994 by the Land Office of Jihlava.
3. The author claims to be a victim of discrimination as under the law No. 243/1992 she is not entitled to restitution of her father’s property.
4.1 By submission of 20 October 1997, the State party stated that the author’s application for restitution of her father’s property was dismissed by the Jihlava Land Office on 14 October 1994, on grounds of non-compliance with the legal requirements. It explained that the confiscated property of persons who were deprived of Czechoslovak citizenship under the Benes decrees in 1945, may be restituted in cases where the claimant has his citizenship renewed through the procedures set by law. However, the law did not expressly address the situation of persons who never lost their citizenship and whose property was confiscated in violation of the laws operative at that time. Since the author’s father never lost his Czechoslovak citizenship, he could not be considered to be an entitled person and the property could not be restored.
4.2 The State party further explained that the author’s appeal was dismissed for being filed out of time. The author’s lawyer then raised the objection that the Land Office’s decision had not been served properly, since it had not been served to the lawyer directly, but to a member of his staff, who was not authorised to receive it. The Land Office accepted the objection, and served the decision again. The author subsequently appealed against the decision. The City Court dismissed the appeal by a ruling dated 6 August 1996, on the ground that the decision had been properly served the first time and should not have been served a second time. On 11 October 1996, the author filed a constitutional complaint, which was dismissed by the Constitutional Court as inadmissible ratione temporis.
9.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1 of the Optional Protocol. Moreover, in the absence of any submission from the State party following the Committee’s decision on admissibility, the Committee relies on the detailed submissions made by the author so far as they raise issues concerning Law nr. 243/1992 as amended. The Committee recalls in this respect that a State party has an obligation under article 4, paragraph 2, of the Optional Protocol to cooperate with the Committee and to submit written explanations or statements clarifying the matter and the remedy, if any, that may have been granted. The complaint of the author raises issues under article 26 of the Covenant.
9.2 The Committee notes that the State Party concedes that under Law nr 243/1992 individuals in a similar situation as that of the author qualify for restitution as a result of the subsequent interpretation given by the Constitutional Court (para. 4.4). The State Party further concedes that the decision of the Jihlava Land Office of 14 October 1994 was wrong and that the author should have had the opportunity to enter a fresh application before the Jihlava Land Office. The author’s renewed attempt to obtain redress has, however, been frustrated by the State party itself which, through a letter of the Ministry of Agriculture of 25 May 1998, informed the author that the decision of the Jihlava Land Office of 14 October 1994 had become final on the ground that the decision of the Central Land Office reversing the decision of the Jihlava Land Office had been served out of time.
9.3 Given the above facts, the Committee concludes that, if the service of the decision of the Central Land Office reversing the decision of the Jihlava Land Office was made out of time, this was attributable to the administrative fault of the authorities. The result is that the author was deprived of treatment equal to that of persons having similar entitlement to the restitution of their previously confiscated property, in violation of her rights under article 26 of the Covenant.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights , is therefore of the view that the facts before it disclose a violation of article 26 of the Covenant.
One might maintain that the main complaint was focused on the arbitrariness of justice. But such a case might be more difficult to argue. In the absence of the right to property in the ICCPR, the Human Rights Committee looked at the effect that the land confiscation had on the applicant and whether it led to a violation of a right recognised under the ICCPR and found a violation of the right to non-discrimination.
It should be noted that several cases have been brought before the Human Rights Committee in connection with land and property claims, some against the Czech Republic and Hungary. In both countries redress measures, after the fall of the communist regimes, led to additional claims being based on unequal treatment.
Selected additional cases: ECHR: Jahn et al. v. Germany Applications Nos. 46720/99, 72203/01 and 72552/01, Judgement of 22 January 2004; Akdivar v. Turkey, Application No. 21893/93, Judgement of 16 September 1996; Papamichalopoulos v. Greece, Application No. 14556/89, Judgement of 24 June 1993; Brumarescu v. Romania, Application No. 28342/95, Judgement of 28 October 1999; Malama v. Greece, Application No. 43622 /98, Judgement of 1 March 2001; Prince Hans-Adam II of Liechtenstein v. Germany , Application No. 42527/98, Judgement of 12 July 2001.