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Council of Europe

UN High Commissioner for Human Rights

European Union

Centre pour l'indépendance des magistrats et des avocats

Observatoire pour la Protection des Défenseurs des Droits de l'Homme

Commissaire aux Droits de l'Homme

Human Rights Watch

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Europejski Trybunal Praw Czlowieka oglosil wyrok Wielkiej Izby w sprawie Broniowski przeciwko Polsce Polish versionPolish version  

Protection of property for Polish citizens who were living in “territories beyond the Bug River” (“ziemie zabużańskie”) of pre-war Poland and were repatriated after Poland’s eastern border had been redrawn along the Bug River (whose central course formed part of the Curzon line), in the aftermath of the Second World War.





violation of Article 1 of Protocol No. 1



The case concerned the alleged failure to satisfy the applicant’s entitlement to compensation for property (a house and land) in Lwów (now Lviv, in the Ukraine) which belonged to his grandmother when the area was still part of Poland, before the Second World War. That entitlement was first bequeathed to the applicant’s mother and, after her death in 1989, to the applicant.


The applicant’s grandmother along with many others who had been living in the Eastern provinces of pre-war Poland (which included large areas of present-day Belarus, Ukraine and territories around Vilnius in what is now Lithuania) was repatriated after Poland’s eastern border had been redrawn along the Bug River (whose central course formed part of the Curzon line), in the aftermath of the Second World War. The area was known as the “Borderlands” (“Kresy”) and also, “territories beyond the Bug River” (“ziemie zabużańskie”).


Following the Yalta and Potsdam conferences, where this new border between the Soviet Union and Poland along the Curzon line had been agreed, and the so-called “republican agreements” between the Polish Committee of National Liberation and the governments of the former Soviet Republics of Lithuania, Belarus and Ukraine, Poland undertook to compensate those who had been “repatriated” from the “territories beyond the Bug River” and had had to abandon their properties. From 1944 to 1953 around 1,240,000 people were “repatriated” under the provisions of the republican agreements.


Since 1946, Polish law has entitled those repatriated in such circumstances to compensation in kind; they have been entitled to buy land from the State and have the value of the abandoned property offset against the fee for the so-called “perpetual use” of this land or against the price of the compensatory property or land.


However, following the entry into force of the Local Government Act of 10 May 1990 and the enactment of further laws reducing the pool of State property available to the Bug River claimants - in particular, by excluding the possibility of enforcing their claims against State agricultural and military property - the State Treasury has been unable to fulfil its obligation to meet the compensation claims because it has had insufficient land to meet the demand. In addition, Bug River claimants have frequently been either excluded from auctions of State property or have had their participation subjected to various conditions.


According to the Government, the anticipated total number of entitled persons is nearly 80,000.


The applicant’s entitlement to compensation for the property abandoned by his grandmother was originally (in the 1980s) valued at 1,949,560 old Polish zlotys. According to an expert report produced by the Polish Government, the value of the applicant’s entitlement at present amounts to some 390,000 new Polish zlotys. He has received only approximately 2% of its value (i.e. of the compensation due to him) in the form of the right of perpetual use of a small building plot which his mother bought from the State in 1981.


On 19 December 2002 the Polish Constitutional Court declared the provisions that excluded the possibility of enforcing the Bug River claims against State agricultural and military property unconstitutional. However, following this judgment, the State agencies administering State agricultural and military property suspended all auctions, considering that further legislation was required to deal with the implementation of the judgment.


On 30 January 2004, when the Law of 12 December 2003 entered into force, the Polish State’s obligations towards the applicant, and all other Bug River claimants who had ever obtained any compensatory property under the previous legislation, was deemed to have been discharged. Claimants who had never received any such compensation were awarded 15% of their original entitlement, subject to a ceiling of 50,000 Polish zlotys.


The applicant complained that he had not received the compensatory property to which he was entitled. He further submitted that the Polish State failed to react to and resolve through legislative measures, the problem of the insufficient stock of State property designated for the Bug River claimants and also that the State had enacted laws that had all but removed the possibility of obtaining State property. He also maintained that the authorities had made the realisation of his entitlement impossible in practice, given the widespread practice of not putting State land on sale and preventing people entitled to compensatory property from bidding at auctions. He relied on Article 1 of Protocol No.1 (protection of property) to the European Convention on Human Rights.


Decision of the Court


Scope of the case


The Court first observed that, while the historical background of the case was certainly important for the understanding of the current and complex legal and factual situation, the sole issue before the Court was whether Article 1 of Protocol No. 1 was violated through the Polish State’s acts and omissions in relation to the implementation of the applicant’s entitlement to compensatory property after the Protocol’s entry into force in respect of Poland.


Article 1 of Protocol No. 1 to the Convention


The Court found that the applicant’s entitlement to obtain compensatory property constituted “possessions” for the purposes of Article 1 of Protocol No. 1.


The Court proceeded 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. The measures also pursed a legitimate aim; to reintroduce local self-government, to restructure the agricultural system and to generate financial means for the modernisation of military institutions.


In deciding whether the measures in question struck a fair balance between the interests involved, the Court recognised that, given the particular historical and political background of the case, as well as the importance of the various social, legal and economic considerations that the authorities had to take into account in resolving the problem of the Bug River claims, the Polish State had to deal with an exceptionally difficult situation, involving complex, large-scale policy decisions. The vast number of persons involved - nearly 80,000 - and the very substantial value of their claims were certainly factors to be taken into account in ascertaining whether the requisite fair balance had been struck.


It also had to be noted that the Polish State chose, by adopting both the 1985 and 1997 Land Administration Acts, to reaffirm its obligation to compensate the Bug River claimants and to maintain and to incorporate into domestic law obligations it had taken upon itself by virtue of international treaties entered into prior to its ratification of the Convention and the Protocol. It did so irrespective of the fact that it faced various important social and economic constraints resulting from the transformation of the country’s entire system, and was undoubtedly confronted with a difficult choice as to which pecuniary and moral obligations could be fulfilled towards those who had suffered injustice under the totalitarian regime.


The Court accepted that in those circumstances a wide margin of appreciation had to be accorded to the Polish State.


However, the exercise of the State’s discretion, even in the context of the most complex reform of the State, could not entail consequences at variance with Convention standards. While the Court accepted that the radical reform of the country’s political and economic system, as well as the state of the country’s finances, might justify stringent limitations on compensation for the Bug River claimants, the Polish State had not been able to adduce satisfactory grounds justifying, in terms of Article 1 of Protocol No. 1, the extent to which it had continuously failed over many years to implement an entitlement conferred on the applicant, as on thousands of other Bug River claimants, by Polish legislation.


The Polish 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 was at stake.


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, under which the applicant lost his hitherto existing entitlement to compensation. Moreover, under that legislation, Bug River claimants were treated differently, 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.


While the State was entitled to expropriate property, Article 1 of Protocol No. 1 required that the amount of compensation granted for the property be “reasonably related” to its value. Given that the applicant’s family had received merely 2 % of the compensation due, the Court found 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.


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 concluded that, as an individual, he had had to bear a disproportionate and excessive burden which could not be justified in terms of the legitimate general community interest pursued by the authorities. There had therefore been a violation of Article 1 of Protocol No. 1.


Article 46 of the Convention (binding force and execution of judgments)


The Court drew attention to two instruments adopted by the Committee of Ministers of the Council of Europe on 12 May 2004. The first, a resolution on judgments revealing an underlying systemic problem, invited the Court “to identify in its judgments finding a violation of the Convention what it considers to be an underlying systemic problem and the source of that problem, in particular when it is likely to give rise to numerous applications ...”. The second, a recommendation on the improvement of domestic remedies, emphasised that States had a general obligation to solve the problems underlying the violations found and recommended the setting up of “effective remedies, in order to avoid repetitive cases being brought before the Court”.


The Court concluded that the facts of the case disclosed the existence, within the Polish legal order, of a shortcoming as a consequence of which a whole class of individuals had been or were still denied the peaceful enjoyment of their possessions. It also found that the deficiencies in national law and practice identified in the applicant’s individual case might give rise to numerous subsequent well-founded applications.


The Court reiterated that, under Article 46, a judgment in which the Court had found a violation imposed on the State concerned a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers of the Council of Europe, the measures to be adopted at national level to put an end to the violation and to redress so far as possible its effects. Subject to monitoring by the Committee of Ministers, the State remained free to choose the means by which it would discharge its legal obligation under Article 46, provided that such means were compatible with the conclusions set out in the Court’s judgment.

The Court recalled that the violation in the applicant’s case was caused by a situation concerning large numbers of people. The failure to implement, in a manner compatible with Article 1 of Protocol No. 1, the chosen mechanism for settling the Bug River claims had affected nearly 80,000 people. There were already 167 similar applications pending before the Court. That was not only an aggravating factor regarding Poland’s responsibility under the Convention for an existing or past state of affairs, but also represented a threat to the future effectiveness of the Convention system.


The Court observed that general measures at national level were undoubtedly called for, to remedy the systemic defect identified by the Court, so as not to overburden the Convention system with large numbers of applications deriving from the same cause. Such measures should therefore include a scheme providing redress. It was for the national authorities, under the supervision of the Committee of Ministers, to take, retroactively if appropriate, the necessary remedial measures so that the Court did not have to repeat its finding in a lengthy series of comparable cases.


The Court was not in a position to assess whether the December 2003 Act could be treated as an adequate measure in that connection since no practice of its implementation had been established. In any event, the Act did not cover those who - like Mr Broniowski - had already received partial compensation. It was therefore clear that, for that group of Bug River claimants, the Act could not be regarded as a measure capable of putting an end to the systemic situation identified by the Court.


Regarding the general measures to be taken, the Court considered that Poland had either, through appropriate legal and administrative measures, to secure the effective and expeditious realisation of the entitlement in question in respect of the remaining Bug River claimants or to provide equivalent redress in lieu.


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