Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Respondent State to take measures of a general character (Article 46-2 - General measures);Just satisfaction reserved (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant is a NORP national who was born in DATE and lives in PERSON , GPE , in GPE .

The eastern provinces of pre - war GPE were ( and in dated usage still are ) called “ LOC ” ( “ GPE ” ) . They included large areas of DATE GPE and GPE and territories around GPE in what is now GPE .

Later , when after the Second World War Poland 's eastern border was fixed along LOC ( whose central course formed part of the PERSON line ) , the “ LOC ” acquired the name of “ territories beyond the LOC ” ( “ ziemie zabużańskie ” ) .

Those regions had been invaded by the GPE in DATE .

Following agreements concluded between ORG ( PERSON ) and the former NORP ORG of GPE ( on DATE ) , GPE ( on DATE ) and GPE ( on DATE ) ( “ the NORP Agreements ” – “ umowy republikańskie ” ) , the NORP State took upon itself the obligation to compensate persons who were “ repatriated ” from the “ territories beyond the LOC ” and had to abandon their property there . Such property is commonly referred to as “ property beyond LOC ” ( “ mienie zabużańskie ” ) .

NORP The NORP government estimated that DATE CARDINAL persons were “ repatriated ” under the provisions of ORG . 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 ORG also stated that , on account of the delimitation of the NORP - Soviet State border DATE and despite the fact that GPE was “ compensated ” by the ORG with former NORP lands east of the PERSON - Neisse line – GPE suffered a loss of territory amounting to PERCENT .

The facts of the case , as submitted by the parties , may be summarised as follows .

After the Second World War , the applicant 's grandmother was repatriated from GPE ( now GPE in GPE ) .

On DATE ORG ( PERSON ) in GPE issued a certificate attesting that she had owned a piece of real property in GPE and that the property in question consisted of CARDINAL sq . m of land and a house with a surface area of CARDINAL sq . m.

On DATE ORG ( Sąd Rejonowy ) gave a decision declaring that the applicant 's mother had inherited the whole of her late mother 's property .

On DATE the applicant 's mother asked the mayor of PERSON to enable her to purchase the so - called right of “ perpetual use ” ( prawo użytkowania wieczystego ) of land owned by ORG ( see also paragraph CARDINAL below ) .

In DATE an expert from ORG made a report assessing the value of the property abandoned by the applicant 's grandmother in GPE . The actual value was estimated at CARDINAL old Polish zlotys ( PLZ ) but , for the purposes of compensation due from the ORG , the value was fixed at PLZ CARDINAL,CARDINAL .

On DATE the mayor of ORG issued a decision enabling the applicant 's mother to purchase the right of perpetual use of a plot of CARDINAL sq . m situated in Wieliczka . The fee for the right of perpetual use was PLZ CARDINAL per year and the duration was set at a minimum of DATE and a maximum of DATE . The total fee for use , which amounted to PLZ CARDINAL ( PLZ CARDINAL x DATE ) was offset against the compensation calculated by the expert in DATE .

In DATE an expert commissioned by the government established that the value of this transaction corresponded to PERCENT of the compensation to which the applicant 's family was entitled ( see also paragraph CARDINAL below ) .

The applicant 's mother died on DATE . On DATE ORG gave a decision declaring that the applicant had inherited the whole of his late mother 's property .

NORP In DATE , on a date that has not been specified , the applicant sold the property that his mother had received from the ORG in DATE .

On DATE the applicant asked ORG ( Urząd Rejonowy ) to grant him the remainder of the compensation for the property abandoned by his grandmother in GPE . He stressed that the value of the compensatory property received by his late mother had been significantly lower than the value of the original property .

In a letter of DATE , the town planning division of ORG informed the applicant that his claim had been entered in the relevant register under no . R/CARDINAL/CARDINAL . The relevant part of that letter read as follows :

“ We would like to inform you that at present there is no possibility of satisfying your claim . ... LAW of ORG DATE [ Ustawa o gospodarce gruntami i wywłaszczaniu nieruchomości ] became , for all practical purposes , a dead letter with the enactment of ORG of DATE . [ The enactment of that Act ] resulted in land being transferred from the [ GPE branch of the ] ORG to GPE . Consequently , the Head of ORG who , under the applicable rules , is responsible for granting compensation , has no possibility of satisfying the claims submitted . It is expected that new legislation will envisage another form of compensation . We should accordingly inform you that your claim will be dealt with after a new statute has determined how to proceed with claims submitted by repatriated persons . ”

On DATE ORG ( ORG ) informed the applicant that ORG had no land for the purposes of granting compensation for property abandoned in the territories beyond LOC .

On DATE the applicant filed a complaint with ORG ( PERSON ) , alleging inactivity on the part of the government in that it had failed to introduce in ORG legislation dealing with claims submitted by repatriated persons . He also asked for compensation in the form of ORG bonds .

On DATE ORG rejected the applicant 's complaint . It found no indication of inactivity on the part of the ORG authorities because “ the contrary transpired from the fact that the applicant had received replies from ORG and ORG Office ” .

On DATE , in connection with the entry into force of the ORG 's Ordinance of DATE ( see also paragraphs QUANTITY below ) , ORG transmitted the applicant 's request of DATE for the remainder of the compensation , and the relevant case file , to the mayor ( ORG ) of ORG . Meanwhile , following a reform of the local administrative authorities , the former GPE ( Województwo GPE ) DATE in which the Wieliczka district is situated DATE had been enlarged and renamed “ GPE ” ( PERSON ) .

On DATE the mayor of PERSON organised a competitive bid for property situated in PERSON being sold by ORG . The bid was entered by CARDINAL persons , all of whom were repatriated persons or their heirs . The applicant did not participate in the auction .

On DATE the ORG ( PERSON ) , acting on behalf of repatriated persons , made an application under LAW of the LAW , read in conjunction with LAW , to ORG ( PERSON ) , asking for legal provisions that restricted the possibility of satisfying their entitlements to be declared unconstitutional ( see also paragraphs DATE , DATE and DATE below ) .

On DATE the Constitutional Court heard , and granted , the ORG 's application ( see also paragraphs CARDINAL below ) . ORG judgment took effect on DATE .

On DATE ORG issued a communiqué , which was put on its official website and which read , in so far as relevant , as follows :

“ ORG , in its judgment of DATE , declared that the provisions relating to the realisation of the LOC claims by , inter alia , ORG were unconstitutional .

However , the implementation of the court 's judgment requires that LAW , LAW DATE on the administration of certain portions of ORG property and ORG , as well as LAW DATE on the reconstruction , technical modernisation and financing of the NORP army in DATE , be amended .

It is also necessary to amend LAW of DATE on income tax from legal persons , in respect of the proceeds received by the agency upon satisfying the LOC claims .

In the circumstances , ORG will be able to organise auctions for the sale of immovable property after the amendments to the existing legislation have been made .

ORG will be advertised in the press ... and on the [ agency 's ] website . ”

According to information made available on the agency 's website , in DATE it had in its possession CARDINAL categories of property . The first was immovable property no longer used for any military purposes , which was normally sold at auctions . It comprised CARDINAL hectares of land and CARDINAL buildings with a total surface area of CARDINAL sq . m. This property included military airports , testing grounds , rifle ranges , hospitals , barracks , offices , recreation and sports centres , buildings designated for social and cultural activities and various other buildings ( fuelling stations , workshops , warehouses , etc . ) . The second category was property that was only temporarily not used by the army . It comprised QUANTITY of land and buildings with a total surface area of QUANTITY m.

On DATE ORG ( NORP PERSON Rolnej PERSON ) , a body which at that time administered ORG ( PERSON Rolnej PERSON ) ( see also paragraph QUANTITY below ) , issued a similar communiqué , which was put on its official website and which read as follows :

“ On DATE ORG judgment of DATE concerning the constitutionality of the provisions governing compensation for the LOC property came into force .

As a consequence of the ORG 's judgment , it is necessary to amend the provisions relating to the land administration . The judgment does not by itself create a new legal regime and can not constitute a basis for offsetting the value of the property abandoned outside the ORG 's border against the price of ORG agricultural property . The principles , conditions and procedure in that respect should therefore be determined . Such actions have already been taken by ORG and ORG for the ORG .

In the circumstances , this agency will desist from organising auctions for the sale of immovable property held among its resources , except for small plots of agricultural property .

The agency 's decision is inspired by the need to ensure that the LOC claimants have their claims satisfied on conditions that are equal for all claimants . ”

By DATE neither of the above - mentioned agencies had resumed auctions . On the date of adoption of this judgment , ORG website still contained DATE unchanged – communiqué of DATE on the suspension of auctions .

On DATE , DATE after the entry into force of new legislation on LOC claims ( see paragraphs CARDINAL - CARDINAL below ) , ORG ( ORG ) , a body which had in the meantime replaced ORG ( see also paragraph CARDINAL below ) removed the communiqué of DATE from its website and added an announcement entitled “ Information for the LOC people ” ( “ LOC zabużan ” ) , providing a detailed explanation of the operation of the new statute .

Meanwhile , in DATE and DATE , during the process of preparing a bill designed to settle the “ LOC claims ” ( “ roszczenia zabużańskie ” ; hereafter “ the Government Bill ” – see also paragraphs CARDINAL - CARDINAL below ) , the government estimated the number of claimants and the value of the claims . According to the government , there were CARDINAL registered claims , of which CARDINAL were verified and regarded as meeting the statutory conditions . The registered claims were valued at CARDINAL new NORP zlotys ( ORG ) . There were also CARDINAL unverified claims pending registration , of which CARDINAL were likely to be registered . The anticipated value of the unverified claims was MONEY . The anticipated total number of entitled persons was CARDINAL . As the parliamentary debate over the Government Bill – a debate which was widely discussed throughout the NORP media – progressed , the number of LOC claims started to grow , since many new claims were being registered .

The statistical reports prepared by the government , in particular the Ministry for the ORG ( PERSON ) and ORG ( PERSON ) , have to date not addressed the question of how many of the LOC claimants have ever obtained any compensation and , if so , whether it was full or partial , and how many of them have not yet received anything at all .

The idea of keeping a register of ORG claims emerged in the course of the preparation of the Government PERSON , and such a register is to be kept in the future . Nevertheless , the need to collect the relevant data had already been perceived by the Minister for Infrastructure in DATE , when he replied to a question by PERSON , a member of parliament , concerning , in the MP 's words , “ the final discharge of the NORP ORG 's obligations towards persons who , after the Second World War , had abandoned their immovable property beyond the eastern border ” . In his reply , the Minister stated , inter alia :

“ In reply to the question relating to the number of unsatisfied claims , it has to be said that it was estimated by ORG [ PERSON ] at DATE that there were CARDINAL [ such claims ] . At present it is very difficult to make such an estimation . ... In practice , every legal successor [ of a LOC claimant ] could , and can , obtain a certificate – at present , a decision – [ confirming the right to ] a share in the abandoned property . What should be the criteria according to which the number of satisfied and unsatisfied claims is to be estimated ? Should it be the number of applications made , including [ several ] applications by legal successors regarding CARDINAL property abandoned by CARDINAL owner ( testator ) , or should it be the number of properties abandoned beyond the ORG 's borders ?

It is also difficult to estimate the number of persons whose entitlement has been satisfied , especially as the entitlement can be enforced throughout the country and it often happens that it is satisfied partially in different provinces until it has been fully settled . This situation creates conditions in which the entitled persons may abuse their rights DATE a fact of which governors and mayors have notified us . They accordingly suggest that a register ... of the certificates issued confirming the entitlement to ... compensatory property be kept . At present , however , there is no single , comprehensive system for the registration of certificates and decisions entitling claimants to [ compensatory property ] .

Accordingly , the answer to the deputy 's question as to the form in which the [ LOC claims ] are to be satisfied and as to the possible legal solutions depends on reliable information on the number of unsatisfied claims . If it emerged that the number was significant and that not all claims could be satisfied under the applicable laws , other legislative solutions would have to be found DATE which , however , would be particularly difficult in view of the economic and financial problems of the ORG . ”

On DATE the Government produced a valuation report prepared by an expert valuer commissioned by them . That report had been drawn up on DATE . The value of the property that the applicant 's grandmother had had to abandon was estimated at PLN CARDINAL,CARDINAL . The expert stated that the applicant 's family had so far received PERCENT of the compensation due .

On DATE the mayor of ORG organised a competitive bid for property situated in PERSON and PERSON , in the GPE , that was being sold by ORG . The reserve prices were ORG CARDINAL,CARDINAL and CARDINAL respectively . The bid was entered by several LOC claimants . The first property was sold for ORG , the second for ORG CARDINAL,CARDINAL . The applicant did not participate in those auctions .

On DATE , by virtue of the Law of DATE on offsetting the value of property abandoned beyond the present borders of the NORP State against the price of ORG property or the fee for the right of perpetual use ( LOC o zaliczaniu na poczet ceny sprzedaży albo opłat z tytułu użytkowania wieczystego nieruchomości PERSON wartości nieruchomości pozostawionych poza obecnymi granicami PERSON – “ the DATE Act ” ) , the ORG 's obligations towards persons who , like the applicant , have obtained some compensatory property under the previous statutes are considered to have been discharged ( see also paragraph CARDINAL below ) .

On DATE CARDINAL members of parliament from the opposition party , “ Civic Platform ” ( Platforma Obywatelska ) , applied to ORG , challenging a number of the provisions of DATE ( see also paragraph CARDINAL below ) .

The NORP Agreements ( see also paragraph CARDINAL above ) were each drafted in a similar way . LAW laid down rules concerning both the kind and the amount of property that repatriated persons could take with them upon evacuation , and obliged the Contracting Parties to return to them the value of the property which they had had to abandon .

Article CARDINAL of the Agreement of DATE between ORG and the government of the NORP GPE on the evacuation of NORP citizens from the territory of the GPE and of the NORP population from the territory of GPE ( GPE pomiędzy ORG a ORG Republiki Rad dotyczący ewakuacji obywateli polskich z terytorium GPE i ludności i ukraińskiej z terytorium GPE – “ the relevant NORP Agreement ” ) provided , in so far as relevant , as follows :

“ CARDINAL . Evacuated persons shall be allowed to take with them clothing , footwear , linen , bedding , foodstuffs , household goods , farming inventory stock , harnesses and other articles for household and agricultural use , up to a total weight of QUANTITY per family , as well as any cattle and poultry belonging to the evacuated farm .

Persons with specialised professions , such as workmen , craftsmen , doctors , artists and scholars , shall be accorded the right to take with them objects needed in the exercise of their professions .

The following may not be taken upon evacuation :

( a ) NORP cash , banknotes and gold and silver coins of any type , with the exception of NORP banknotes to a maximum amount of MONEY per person , or NORP currency to a maximum amount of MONEY per person ;

( b ) NORP gold and platinum in alloy , powder or scrap form ;

( c ) precious stones in unworked form ;

( d ) works of art and antiques whenever they constitute a collection , or even as individual items , unless they are the evacuated person 's family property ;

( e ) firearms ( with the exception of hunting rifles ) and military equipment ;

( f ) photographs ( other than personal photographs ) , charts and maps ;

( g ) automobiles and motorcycles ;

( h ) furniture , whether by rail or by motor vehicle , because of the transport problems caused by the war .

The value of movable belongings left behind upon evacuation , and also of immovable property , shall be returned to the evacuated person on the basis of insurance valuations , in accordance with the applicable laws in GPE and in the NORP GPE , as the case may be . In the absence of an insurance valuation , the value of movable and immovable property shall be assessed by ORG of the Parties . The Contracting Parties shall undertake to ensure that town and village houses vacated as a result of resettlement are made available to resettled persons on a priority basis . ”

On DATE the government of GPE and the governments of ORG , the GPE , the GPE Soviet GPE and the Lithuanian Soviet Socialist Republic concluded an agreement on the mutual settlement of accounts in connection with the evacuation of population groups and the delimitation of the NORP - Soviet State border ( Umowa między PERSON , z jednej strony i ORG Republik Radzieckich , PERSON , PERSON Republiki Radzieckiej i ORG PERSON , z drugiej strony , o wzajemnych rozliczeniach , wynikłych w związku z ewakuacją ludności i delimitacją polsko - radzieckiej granicy państwowej CARDINAL “ the DATE LAW ) . LAW pact provided :

“ With a view to the complete and definitive mutual settlement of accounts for movable and immovable property , agricultural products and seed left on the territories of GPE and of the GPE by persons evacuated and resettled in connection with the delimitation of the NORP - Soviet State border , the Government of GPE undertake to pay the Government of the GPE the sum of CARDINAL ( CARDINAL ) MONEY . ”

DATE to the present day , NORP law has provided that persons repatriated from the territories beyond LOC are entitled to have the value of the property abandoned as a result of the Second World War offset either against the fee for the right of perpetual use or against the price of immovable property purchased from ORG .

That provision has been repeated in several statutes , starting with the Decree of DATE on the transfer from the ORG of non - agricultural property in GPE and the former GPE of Gdańsk ( Dekret o przekazywaniu przez CARDINAL mienia nierolniczego na obszarze PERSON i b. PERSON ) .

The so - called “ LOC ” ( “ PERSON ” ) were former NORP territories east of FAC , with which – upon PERSON 's proposal – the victorious Allies compensated the NORP for the “ territories beyond the LOC ” taken away from them by the former GPE .

Under the policy pursued at that time by the authorities , the “ LOC ” and Gdańsk , after the expulsion of NORP residing there , were intended for the accommodation of NORP citizens “ repatriated ” from “ beyond the LOC ” , that is , from the territories beyond the PERSON line . The repatriated persons had priority in purchasing land .

Further decrees and statutes were enforced DATE .

In DATE , however , the authorities started to consider the possibility of enacting a single statute dealing with all forms of restitution of property , including claims for compensation for property abandoned by repatriated persons ( see also paragraphs CARDINAL below ) .

Ultimately , a statute exclusively relating to LOC claims ( DATE ) came into force on DATE ( see also paragraph CARDINAL above and CARDINAL below ) .

From DATE to CARDINAL DATE the rules governing the administration of land held by ORG and municipalities were laid down in ORG of DATE ( “ LAW DATE ” ) .

Section CARDINAL of this Act dealt with entitlement to compensation for property abandoned in the territories beyond LOC . The relevant parts of the version applicable from DATE to DATE read as follows :

“ ( CARDINAL ) Persons who , in connection with the war that began in DATE , abandoned real property in territories which at present do not belong to the NORP State and who , by virtue of international treaties concluded by the ORG , are to obtain equivalent compensation for the property they abandoned abroad , shall have the value of the real property that has been abandoned offset either against the fee for the right of perpetual use of land or against the price of a building plot and any houses , buildings or LOC situated thereon .

( CARDINAL ) In the event of the death of an owner of real property abandoned abroad , the entitlement referred to in subsection ( CARDINAL ) shall be conferred jointly on all his heirs in law or on the one [ heir ] designated by the entitled persons .

( CARDINAL ) The offsetting of the value of real property abandoned abroad , as defined in subsection ( CARDINAL ) , shall be effected upon an application from a person entitled to it ... ”

Detailed rules were set out in the ORG 's Ordinance of DATE ( as amended ) on the offsetting of the value of real property abandoned abroad against the fees for perpetual use or against the price of a building plot and buildings situated thereon ( ORG PERSON w sprawie zaliczania wartości mienia nieruchomego pozostawionego za granicą na poczet opłat za użytkowanie wieczyste lub na pokrycie ceny sprzedaży działki budowlanej i położonych na niej budynków – “ the DATE LAW ) .

The relevant part of paragraph CARDINAL of the DATE Ordinance provided as follows :

“ If the value of the property [ abandoned abroad ] exceeds the price of the real property that has been sold ... , the outstanding amount can be offset against the fee for the right of perpetual use , or against the price of an industrial or commercial plot of land and any commercial or small - business establishments , buildings designated for use as workshops or ateliers , holiday homes or garages situated thereon . ”

Paragraph CARDINAL provided that a first - instance body of the local ORG administration that was competent to deal with town and country planning should issue the decisions on offsetting the value of property abandoned abroad . Paragraph CARDINAL laid down detailed rules relating to the valuation of such property .

On DATE LAW DATE was repealed and LAW of DATE ( LOC o gospodarce nieruchomościami – “ LAW CARDINAL ” ) came into force .

The obligation to compensate repatriated persons was laid down in section CARDINAL , which was phrased in similar terms to section CARDINAL of the repealed DATE Act . The relevant part of section CARDINAL provided as follows :

“ ( CARDINAL ) Persons who , in connection with the war that began in DATE , abandoned real property in territories which at present do not belong to the NORP State and who , by virtue of international treaties concluded by the ORG , were to obtain equivalent compensation for the property abandoned abroad , shall have the value of the real property that has been abandoned offset against the fee for the right of perpetual use of land or against the price of a building plot and the ORG - owned buildings or LOC situated thereon .

( CARDINAL ) If the value of the real property that has been abandoned [ abroad ] exceeds the value of real property acquired by way of the equivalent compensation referred to in subsection ( CARDINAL ) , the outstanding amount may be offset against the fees for perpetual use , or against the price of a plot of land and a building designated for commercial purposes , or for use as an atelier , holiday home or garage , or of a plot of land designated for any of the above purposes .

( CARDINAL ) The offsetting of the value of real property defined in subsection ( CARDINAL ) shall be effected in favour of the owner of the property in question or a person designated by him who is his heir at law .

( CARDINAL ) In the event of the death of the owner of real property abandoned abroad , the entitlements referred to in subsection ( CARDINAL ) shall be conferred jointly on all his heirs or on the one [ heir ] designated by the entitled persons . ”

However , section CARDINAL stated :

“ Sections CARDINAL of this PERSON shall not apply to property held by ORG , unless the provisions relating to the administration of those ORG state otherwise . ”

On DATE the ORG put the issue of the constitutionality of sections CARDINAL ) and CARDINAL of LAW DATE before ORG ( see also paragraph CARDINAL above and paragraphs CARDINAL , DATE and DATE below ) .

The procedure for the implementation of section CARDINAL of LAW was laid down in the ORG 's Ordinance of CARDINAL DATE on the procedure for offsetting the value of real property abandoned abroad against the price of a title to real property or against the fees for perpetual use , and on the methods of assessing the value of such property ( as amended ) ( ORG PERSON w sprawie sposobu zaliczania wartości nieruchomości pozostawionych za granicą na pokrycie ceny sprzedaży nieruchomości lub opłat za użytkowanie wieczyste oraz sposobu ustalania wartości tych nieruchomości DATE “ the DATE LAW ) .

Paragraph CARDINAL(CARDINAL ) of the DATE Ordinance provided that the offsetting in question had to be effected on an application from the entitled person . The application had to be made to the mayor of the district in which the person resided . The mayor was to keep the register of claims submitted by repatriated persons .

Pursuant to paragraph CARDINAL ) , the mayor had , within DATE , to issue a decision determining the value of the real property that had been abandoned abroad . Once such a decision was taken , the authorities responsible for handling claims submitted by repatriated persons could not refuse to effect the offsetting ( paragraph CARDINAL ) .

In practice , the acquisition of title to compensatory property or of the right of perpetual use could be enforced only through participation in a competitive bid organised by the relevant public authority . Repatriated persons were not given priority in purchasing land from the ORG .

Transitional provisions , in particular paragraph CARDINAL of the DATE Ordinance , stated that proceedings that had been initiated under the previous rules and not terminated were to be governed by this new GPE .

A very significant reduction in ORG land resources was brought about by legislative measures aimed at reforming the administrative structure of the ORG .

ORG ( introductory provisions ) of CARDINAL DATE ( PERSON wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych – “ the DATE LAW ) , which came into force on DATE , and other related statutes enacted at that time , re - established municipalities and transferred to them powers that had previously been exercised solely by the local ORG administration . That included the relinquishment of control over public land and the transfer of the ownership of most of ORG land to municipalities .

Pursuant to section CARDINAL ) of LAW , ownership of land which had previously been held by ORG and which was within the administrative territory of a municipality was transferred to the municipality .

As the LOC claimants could only enforce their entitlement vis - à - vis the State property and not that of local self - government entities , this resulted in a shortage of land for satisfying those claims .

Until DATE , repatriated persons could seek to obtain compensatory property from ORG ( PERSON Rolnej PERSON ) under the provisions of the Law of DATE on the administration of ORG agricultural property ( LOC o gospodarowaniu nieruchomościami rolnymi PERSON – “ the DATE LAW ) . However , on that date , with the entry into force of the LAW of DATE on amendments to the PERSON on the administration of ORG agricultural property and to other statutes ( LOC o zmianie ustawy o gospodarowaniu nieruchomościami rolnymi PERSON oraz o zmianie niektórych ustaw – “ the DATE LAW ” ) , that possibility was excluded .

Section CARDINAL of the DATE Amendment was phrased as follows :

“ As long as the forms of compensation for loss of property and the rules for the restitution of property to persons who , under LAW of LAW DATE , have applied for the offsetting of the value of real property abandoned abroad in connection with the war that began in DATE , have not been determined in an autonomous statute , no such offsetting shall be effected against the price of property held by ORG . ”

On DATE the ORG put the issue of the constitutionality of LAW before ORG ( see also CARDINAL above and CARDINAL and CARDINAL below ) .

That law ( LOC o zagospodarowaniu nieruchomości PERSON przejętych od wojsk GPE – “ the DATE LAW ) came into force on DATE . Pursuant to section CARDINAL read in conjunction with section CARDINAL , repatriated persons must be given priority in acquiring such property .

At the oral hearing , the Government admitted that , in reality , the property resources left by the army of GPE had already been exhausted .

The aforementioned law ( LOC o gospodarowaniu niektórymi składnikami mienia PERSON oraz o Agencji Mienia Wojskowego – “ the CARDINAL LAW ” ) , which came into force on DATE , deals with the administration of military property belonging to the ORG , including land , industrial property , hotels , dwellings and commercial LOC . ORG may organise competitive bids for the sale of real property .

Until DATE , under the general provisions of the CARDINAL Act , repatriated persons could seek to obtain compensatory property through participating in such bids . They did not have any priority over other bidders . However , with the entry into force of the Law of DATE on amendments to the PERSON on the organisation and work of the ORG and on the powers of ministers , to the PERSON on the branches of the executive and to other statutes ( LOC o zmianie ustawy o organizacji i trybie pracy PERSON oraz o zakresie działania ministrów , ustawy o działach administracji rządowej oraz o zmianie niektórych ustaw CARDINAL “ the DATE LAW ” ) , the situation changed . Since then , no property administered by the agency could be designated for the purposes of providing compensation for property abandoned beyond LOC .

The amended section CARDINAL(CARDINAL ) of LAW read as follows :

“ Section CARDINAL of LAW of DATE does not apply to property mentioned in section CARDINAL(CARDINAL ) of this PERSON . ”

“ Property ” within the meaning of the latter provision is “ ORG property that is administered or used by any entity subordinate to , or supervised by , the Minister for ORG and which does not serve the purposes of the functioning of such an entity ” . That , for instance , includes land , commercial and industrial property , dwellings , sports facilities , etc .

On DATE the ORG put the issue of the constitutionality of section CARDINAL(CARDINAL ) of the DATE Act before ORG ( see also CARDINAL , DATE and DATE above and paragraphs DATE below ) .

NORP However , before the entry into force of the DATE Amendment , the authorities of ORG issued an instruction on handling claims submitted by repatriated persons . The relevant part of that document read as follows :

“ In connection with the entry into force on DATE of the provisions of the ORG 's Ordinance of DATE amending the Ordinance on the procedure for the offsetting of the value of real property abandoned abroad against the price of a title to real property or against the fees for perpetual use , and on the methods of assessing the value of such property ( ORG no . CARDINAL , item CARDINAL ) , and with the questions submitted regarding the agency 's responsibility for the settlement of the claims of LOC repatriates , the following was agreed :

ORG will not offset the value of property abandoned abroad against the price of a title to real property or against the fees for perpetual use .

Offers submitted by LOC repatriates in competitive bids without the payment of a deposit should be disregarded . If , after the deposit has been paid , and the competitive bid has been successful , the bidder asks to offset the value of the land abandoned abroad against the price of the title or against the fees for perpetual use , it should be assumed that the bidder has withdrawn from the conclusion of the contract , and the deposit is forfeited in favour of the Agency .

In the event of the bidder in the above cases submitting a complaint concerning the competitive bid , the complaint should be immediately transmitted to the President of the ORG for settlement . Such complaints will not be taken into account .

In the event of the bidder bringing the case to court , the competitive bid process should continue , because the court summons will not delay the proceedings unless the court issues an interim order to protect the interests of the complainant .

In the event of sale without a competitive bid and in the event of sale by negotiation , offers by LOC repatriates should also be disregarded on account of the non - settlement of their claims by the ORG . ... ”

The drafting of the DATE PERSON on the restitution of immovable property and certain kinds of movable property taken from natural persons by the ORG or by GPE , and on compensation ( ORG ustawy o reprywatyzacji nieruchomości i niektórych ruchomości QUANTITY przejętych przez Państwo lub gminę miasta stołecznego Warszawy oraz o rekompensatach – “ the Restitution Bill DATE ” ) was completed in DATE .

The bill was introduced in ORG by the government in DATE . However , it provoked a mounting conflict among all existing political factions before it was finally rejected , after a legislative process that lasted DATE .

It provided that all persons whose property had been taken over by the ORG by virtue of certain statutes enacted under the totalitarian regime were to receive PERCENT of the actual value of their property , either in the form of restitutio in integrum or in the form of compensation in securities . Under section CARDINAL(CARDINAL ) read in conjunction with section CARDINAL , repatriated persons were to receive securities amounting to PERCENT of the value of their property , calculated according to the detailed rules applying to all the persons concerned .

Following a heated debate involving all sections of society , the media and all the political parties and factions , the relevant Act of ORG was transmitted for the President of GPE 's signature in DATE .

The President , exercising his right of veto , refused to sign it .

The President transmitted the vetoed Act to ORG on DATE . ORG for Adopting the Restitution Bill DATE moved for its readoption .

Ultimately , the government coalition failed to gather the CARDINAL majority necessary to override the President 's veto , and the PERSON was rejected by ORG on DATE .

The right of perpetual use is defined in Articles CARDINAL et seq . of LAW ( PERSON ) . It is an inheritable and transferable right in rem which , for DATE , gives a person the full benefit and enjoyment of property rights attaching to land owned by ORG or municipality . It has to be registered in the court land register in the same way as ownership . The transfer of that right , like the transfer of ownership , can be effected only in the form of a notarised deed , on pain of it being void ab initio . The “ perpetual user ” ( użytkownik wieczysty ) is obliged to pay ORG ( or the municipality , as the case may be ) an DATE fee which corresponds to a certain percentage of the value of the land in question .

In its resolution of CARDINAL DATE ( no . III CZP CARDINAL/CARDINAL ) , adopted by a bench of CARDINAL judges , ORG ( Sąd Najwyższy ) dealt with the question whether persons repatriated under LAW DATE between the government of ORG and the government of the GPE on the timing and procedure for the further repatriation from the GPE of persons of NORP nationality , were entitled to the deduction referred to in section CARDINAL(CARDINAL ) of LAW DATE ( continued by LAW ) . The answer was in the affirmative .

In that context , ORG referred to the NORP Agreements of DATE and held , inter alia , the following :

“ ... by virtue of the NORP Agreements of DATE , the NORP ORG undertook to pay equivalent compensation for [ the abandoned ] property . Thus , in this way , the provisions of those agreements were incorporated into NORP law and , in respect of NORP citizens , may constitute a basis for general rights . ...

Section CARDINAL(CARDINAL ) ... , on account of its specific wording , causes serious difficulties in construction . Instead of determining directly subjective and objective preconditions for the right to equivalent compensation , the legislature referred to the provisions of international treaties . That reference constitutes the incorporation of the provisions of those agreements into NORP law . Yet that section does not list the treaties to which it refers . Thus the possible instruments are :

( a ) NORP the NORP Agreements of CARDINAL and DATE ;

( c ) the Pact of DATE between the government of the Polish People 's Republic and the government of the GPE on the timing and procedure for further repatriation from the GPE of persons of NORP nationality .

Among the general principles laid down in DATE Agreements only CARDINAL fundamental principle , enunciated in LAW of each of those Agreements – which provided that the NORP State should return the value of [ abandoned property ] to persons evacuated under those agreements – was incorporated into domestic law . Not from those other principles , but only from this one , does the general right to equivalent compensation derive . ”

DATE . In its resolution of DATE ( no . CZP CARDINAL/CARDINAL ) , ORG , sitting as a bench of CARDINAL judges , dealt with the question whether an entitlement to compensation for property abandoned in the territories beyond LOC could be considered a debt chargeable to ORG , and whether a person thus entitled could transfer his entitlement by way of a contribution in kind to pay for shares in a joint - stock company .

According to ORG , the entitlement in question is for all practical purposes a debt chargeable to ORG , and undoubtedly has a pecuniary and inheritable and , to some extent , transferable character , as it can only be transferred between persons expressly mentioned in section CARDINAL ) of LAW , namely the owners of property abandoned in the territories beyond LOC or their heirs .

Consequently , that entitlement can not be transferred to a legal person who was not listed in section CARDINAL(CARDINAL ) and who , under NORP law , is not capable of inheriting . It has also been stressed that , in the light of the relevant practice and legal theory , a contribution in kind must be fully transferable , must have a precise accounting value and must be able to be entered as a capital asset on a balance sheet . Accordingly , the relevant entitlement does not satisfy the requirements for a contribution in kind .

In a letter of DATE , the ORG reminded the Prime Minister that he had already asked his predecessor in office whether any legislative process would be initiated in order to amend legislation and to increase the amount of land held by ORG with a view to providing compensatory property for repatriated persons . He also referred to the practice of refusing to make deductions under LAW of LAW . The relevant part of that letter read as follows :

“ On CARDINAL DATE I wrote to the former Prime Minister , Professor PERSON , and raised my objections to the infringement by district mayors ' offices [ starostwa powiatowe ] of certain rights of people repatriated from the ' territories beyond LOC . As well as bringing your attention to this problem , I also requested information on whether specific legislative work had been undertaken in order to increase the stock of real property designated for settling the claims of this quite considerable group of citizens . ...

Paragraph CARDINAL of the DATE Ordinance makes very clear that , apart from the district mayors , other entities that administer ORG property on the basis of separate regulations are also to administer immovable property belonging to ORG in order to ensure more effective realisation of compensation in kind for ' property beyond LOC . However , it turns out that , following the amendments to the DATE Ordinance , the necessary amendments to legislation , that would have increased the stock of property designated for settling the claims of people repatriated from the ' territories beyond LOC , have not been introduced .

This state of affairs is confirmed by the letters I have received from entitled persons who claim , for instance , that ORG still refuses to offset the value of their property abandoned abroad against the price of property being sold by the agency or against the fee for the right of perpetual use . The situation is similar when people repatriated from the ' territories beyond LOC wish to participate in bids organised by ORG . In all the cases referred to above , each agency , as grounds for denying entitled persons the right to participate in a bid , points to the absence of relevant legal regulations that would allow it to offset the value of property abandoned abroad against the price of property being sold by a given agency . ...

With regard to the above , I cordially ask you to inform me whether you are currently planning to amend the relevant legislation in order to increase the number of entities administering public property that are obliged to respect the right of people repatriated from the ' territories beyond LOC to compensation in kind . ... ”

The Prime Minister replied that for the time being the authorities did not envisage any specific measures .

On DATE the ORG made an application to ORG , asking that :

“ CARDINAL . Section CARDINAL ) of LAW , in so far as it excludes the possibility of offsetting the value of property abandoned in connection with the war that began DATE against the sale price of agricultural property owned by ORG ;

Section CARDINAL of LAW , in so far as it excludes the application of section CARDINAL of that Act to property held by ORG ;

Section CARDINAL of the [ CARDINAL Amendment ] ;

Section CARDINAL(CARDINAL ) of the [ CARDINAL Act ] ;

be declared incompatible with the principle of maintaining citizens ' confidence in the ORG and the law made by it , emerging from LAW , as well as with LAW and CARDINAL read in conjunction with LAW of the LAW . ”

In the reasoning for his application , the ORG invited ORG to qualify the entitlement under section CARDINAL ) of LAW as , inter alia , an “ opportunity or hope [ of acquiring ] ownership title to specific properties ” , a “ right of a proprietorial nature secured by LAW and a “ right of a pecuniary nature , which also has the character of a debt ” .

Article CARDINAL of the LAW reads as follows :

“ GPE shall be a democratic ORG ruled by law and implementing the principles of social justice . ”

Article CARDINAL § CARDINAL of the LAW , which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms ( the principle of proportionality ) , provides :

“ Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute , and only when necessary in a democratic ORG for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . ”

Article CARDINAL of the LAW lays down the principle of protection of property rights . Its relevant parts read as follows :

“ CARDINAL . Everyone shall have the right to ownership , other property rights and the right of succession .

Everyone , on an equal basis , shall receive legal protection regarding ownership , other property rights and the right of succession . ... ”

Article CARDINAL § CARDINAL refers to the ORG 's civil liability for a constitutional tort in the following way :

“ Everyone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law . ”

DATE . Article CARDINAL lists the sources of law . The relevant parts of that provision read as follows :

“ CARDINAL . The sources of the universally binding law of GPE shall be : the LAW , statutes , ratified international agreements , and regulations . ... ”

Article CARDINAL of the LAW , in its relevant part , states :

“ CARDINAL . After promulgation thereof in LAW [ PERSON ] , a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly , unless its application depends on the enactment of a statute .

An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement can not be reconciled with the provisions of such statutes . ”

Article CARDINAL of the LAW determines the scope of ORG jurisdiction . Article CARDINAL lists the authorities and organisations entitled to apply to ORG for a ruling on the conformity of a piece of legislation , or particular legislative provisions , to LAW .

The relevant parts of LAW provide as follows :

“ The Constitutional Court shall adjudicate regarding the following matters :

( CARDINAL ) the conformity of statutes and international agreements to the LAW ;

( CARDINAL ) the conformity of legal provisions issued by central ORG authorities to the LAW , ratified international agreements and statutes ; ... ”

The relevant part of LAW reads as follows :

“ CARDINAL . The following may make an application to the Constitutional Court regarding matters specified in Article CARDINAL :

( CARDINAL ) NORP the President of the Republic , the Speaker of the PERSON , the Speaker of the ORG , the Prime Minister , CARDINAL deputies , CARDINAL senators , the First President of ORG , the President of ORG , the ... Prosecutor General , the President of ORG and the ORG ; ... ”

The Constitutional Court heard the ORG 's application on DATE ( see also paragraphs CARDINAL above ) . The parties to the proceedings were the Prime Minister , representing the government , ORG ) and the PERSON , represented by its Speaker ( PERSON ) . ORG of ORG ( PERSON Wierzycieli PERSON ) submitted pleadings which addressed the manner in which the authorities had , or – rather – in their view , had not satisfied the entitlements under section QUANTITY of LAW . ORG admitted their pleading and considered it an opinion filed by a non - governmental organisation .

ORG held that sections CARDINAL ) and CARDINAL of LAW , in so far as they excluded the possibility of offsetting the value of property abandoned abroad against the sale price of ORG agricultural property , were incompatible with the constitutional principles set out in LAW principles of the rule of law and maintaining citizens ' confidence in the ORG and the law made by it ) and LAW and CARDINAL ( principle of protection of property rights ) , read in conjunction with LAW ( prohibition of disproportionate limitations on constitutional rights and freedoms ) , of LAW . It went on to hold that section CARDINAL of the DATE LAW and section CARDINAL(CARDINAL ) of LAW were , in their entirety , incompatible with the above - mentioned principles .

In GPE , ORG judgment was considered a landmark ruling on LOC claims , encompassing a detailed historical and legal analysis of that issue . Referring to the historical background of the case , ORG stated , inter alia :

“ The first issue to be dealt with concerns the empowerment of the [ communist authorities that concluded the NORP Agreements ] to enter into international agreements . There is no doubt that ORG can not be considered a constitutional entity of a sovereign ORG , with corresponding democratic legitimacy and capable of taking sovereign decisions in the name of the ORG .

The scope of compensation set out for repatriated persons in the NORP Agreements was in no way equivalent or proportionate to the scope of compensation that the GPE with which these Agreements were concluded took upon themselves as an obligation . In most cases the repatriation was de facto in one direction , as most evacuees were former NORP citizens from the territories lost by GPE as a result of the Second World War . As a consequence , despite a considerably greater material burden of resettlement and repatriation , GPE , by virtue of the CARDINAL Pact , was obliged to pay the GPE the substantial sum of MONEY ( LAW ) . As in the case of the change in GPE 's borders , this type of obligation can certainly not be treated as a sovereign decision by the NORP State authorities .

It should be mentioned at this point that similar burdens in connection with the consequences of the war were also borne by other GPE , but in no case , with the exception of GPE , was the weight of the burden comparable to the CARDINAL ORG had to bear . It is worth recalling that meeting these obligations was further complicated by the considerable material losses suffered during the war and immediately afterwards . Under these conditions , it was evident that the process of affording satisfaction to the repatriated persons , as set forth in the agreements with the GPE and GPE concerned , had to be moderate and spread over time . This also means that it is necessary to take into consideration the difficult financial situation of the ORG and , above all , the situation of groups of citizens other than LOC repatriates . Undoubtedly , the consequences of the war were felt by NORP society as a whole . In this connection , it can not be argued that , for example , compensation that is incomplete , subject to time - limits or taking a specific form is automatically in contradiction with the principle of justice . This view also applies to mechanisms providing only partial compensation for losses suffered as a result of acts of war and territorial changes . ”

The judgment , which contained extensive reasons , was based on the following main grounds :

“ ( CARDINAL ) The NORP Agreements gave rise to a specific type of State obligation to award compensation , through appropriate domestic law , to persons who had lost property in connection with the delimitation of GPE 's borders after the Second World War . ORG did not constitute a direct basis for repatriates to lodge compensation claims , as the legislature was left free to determine how the compensation machinery would be set up . The ORG 's responsibilities in this regard , as undertaken in successive legal regulations , are matters left for an independent decision by the legislature .

( CARDINAL ) The right to credit , which provides for the possibility of offsetting the value of property lost by NORP citizens after being abandoned outside the present territory of the ORG against the sale price of immovable property or against fees for the right of perpetual use , constitutes a specific surrogate for the lost property rights , which is not solely a legal expectation of compensation but rather a property right recognised in the LOC 's legal order as part of its public law . As such , this right enjoys the constitutionally guaranteed protection of property rights ( LAW and QUANTITY of the LAW ) .

( CARDINAL ) The creation of legal frameworks for given institutions can not be entirely abstracted from the factual circumstances and the economic realities in which the legal institutions thus established are to function . As a matter of principle , therefore , the legislature may not narrow down the possibility of benefiting from a general right granted to an individual so severely that the ultimate result is essentially a nudum ius , so that the property becomes an immaterial right devoid of any pecuniary value in practice . In the case of the so - called right to credit , its nominal value does not , however , correspond to its actual value . The depreciation of the value of this right has occurred as a result of the legislature excluding specific categories of immovable property , which has fundamentally limited the possibility of enjoying this right .

( CARDINAL ) All property rights within the legal order are subject to constitutional protection . An interference with the sphere of an entity 's legally protected property interests , when it occurs without the formal removal of the entity 's legal title , amounts to de facto expropriation , within the meaning adopted in the case - law of ORG . Consequently , the assessment of provisions that eliminate the possibility of benefiting from a right in practice leads to the conclusion that they are incompatible with LAW and QUANTITY of the LAW .

( CARDINAL ) ORG solutions limiting the possibility of benefiting from the right to credit , within the framework determined by the law , and resulting in those rights being stripped of their substance , can not be considered necessary in a democratic State governed by the rule of law , and are not functionally related to any of the values set out in LAW [ of LAW ] ( the principle of proportionality ) .

( CARDINAL ) The requirement of respect for the principle of maintaining citizens ' confidence in the ORG and the law made by it , ensuing from the principle of the rule of law ( LAW ) , entails a prohibition on enacting laws that would create illusory legal institutions . This principle therefore requires that the obstacles which prevent [ persons ] from benefiting from the right to credit be eliminated from the legal system . From the point of view of the confidence principle , in the case of the right to credit it is the means of protecting this right that is subject to assessment , rather than its substance . The lack of opportunity to benefit from this right , within the framework set out by the legislature , shows that an illusory legal institution has been created , and thereby constitutes a violation of LAW . ”

ORG coined a new term for the entitlement under section CARDINAL of LAW , calling it the “ right to credit ” ( “ prawo zaliczania ” ) . That term has already entered legal usage and has frequently been referred to in many subsequent judicial decisions and various legal texts .

The court considered that even though that right originated in the provisions of the NORP Agreements , section CARDINAL constituted the actual legal basis for it . In that regard , it held that those agreements did not constitute part of the domestic legal order since , even though they had been ratified , they had not been published in ORG and could not be regarded as a source of law within the meaning of LAW .

ORG defined the right to credit as follows :

“ The right to credit has a special nature as an independent property right . In the opinion of ORG , it constitutes a specific surrogate for property rights rather than a mere expectation of the right to compensation , and for this reason it should be recognised as enjoying the constitutionally guaranteed protection of property rights ( LAW and CARDINAL ) . In the assessment of ORG , it is justified to hold that the right to credit is a special property right of a public - law nature . It is not a proper ownership right , but neither can it be reduced to the category of a potential right in the sense of a maximum formulated expectation [ ekspektatywa maksymalnie ukształtowana ] . Even though materialisation of the right depends on action by the entitled person , it would not be justified to conclude that this right does not exist until the time of its realisation resulting from winning a bid , in which the entitled person may offset the value of abandoned property against the value of acquired property or against fees for perpetual use . ...

There can be no doubt that the right to credit belongs to the category of rights subject to protection under LAW No . CARDINAL to ORG . ”

The Constitutional Court further examined the case under LAW , laying down the principle of the protection of property rights . It described the ORG 's conduct in the following way :

“ In the opinion of ORG , there is no doubt that , in these circumstances , all laws restricting the repatriates ' access to acquisition by means of bids for certain categories of ORG property have a direct impact on the possibility of realising the right to credit .

In the present legal circumstances , one can identify a peculiar functional paradox in that a general right laid down in the legislation in force can not be materialised in practice . Consequently the right to credit is becoming more and more of an ' empty obligation ' and is turning into a nudum ius . Maintenance of the present trend , in which various types of ORG land are excluded from the application of the right to credit will mean that there is no hope of this right materialising in the future . This state of affairs is already resulting in an unfavourable and paradoxical situation : entitled persons who have been waiting for DATE to be able to participate in competitive bids and , subsequently , in the course of such bids , being aware of how difficult it is to realise their right to credit , ' push up ' the price of the property to a level considerably exceeding its market value .

In the present circumstances , in order to assess the possibility of taking advantage of the right to credit , one must take into consideration not only the limitation of the availability of certain types of property , with varying degrees of justification , but also the actual opportunities for enforcement of this right and its economic value .

The statutes restricting repatriates ' access to ORG property essentially result in de facto expropriation , whereby it is impossible to enjoy the right to credit either at present or in the future , in the sense in which this concept is used in ORG case - law cited above . ...

The unconstitutionality of the limitations set out in section CARDINAL ) and section CARDINAL of LAW , in DATE LAW , and in section CARDINAL(CARDINAL ) of LAW , consists precisely in the fact that the general right ( the right to credit ) was formulated in such a way that it could not be materialised in the existing legal environment , so that it has become illusory and a mere sham . Moreover , it is not just a question of temporary impossibility , conditioned by certain factual and legal circumstances , but rather a question of the creation of legal constructions that exclude this possibility ex thesi . In the case at hand , assessment of the possibility of this right materialising is all the more essential in that the legislature , in accepting the principle of the ORG 's obligations towards repatriates on the basis of the international agreements , failed at the same time to establish any alternative compensation mechanism . For DATE , the right to credit has been the only available de lege lata solution allowing for compensation of the material losses suffered by NORP citizens as a result of territorial changes in DATE . ... ”

Assessing the situation from the point of view of LAW , namely the admissibility of the restrictions imposed by the authorities on the exercise of the right to credit , ORG observed , inter alia :

“ [ T]he protection of property rights does not mean that it is completely impossible to interfere with their substance , or that they are absolutely inviolable ... What is necessary is to remain within the constitutional framework which sets out the boundaries for constitutional protection of a given property right [ references to the relevant judgments of ORG ] . Such limitations are introduced by LAW in LAW . In ORG case - law it has been indicated on many occasions that this provision provides tests for determining the conditions for the admissibility of limitations on the enjoyment of constitutional rights and freedoms . ...

In this context , it is important to note ORG position expressed in the judgment of DATE , [ references ] , according to which the scope of such limitations must not cause annihilation of the fundamental components of the general right , resulting in its being ' stripped ' of its real substance and turned it into a legal fiction . Such a situation leads to a constitutionally unacceptable violation of the fundamental substance or the essence of that right . ...

In the light of the foregoing considerations , it must be recognised that all the provisions referred to in the ORG 's application , which limit the actual scope of property in respect of which the procedure set out in section CARDINAL of LAW DATE can be applied , are incompatible with LAW and CARDINAL read in conjunction with LAW of LAW .

Such limitations are not justified in a democratic ORG governed by the rule of law . The aims set out in section CARDINAL of LAW , and the grounds provided for limiting the right to credit in the case of property entrusted to ORG , namely the need for funds to modernise the armed forces , must not be pursued in a manner that deprives only a specific group of persons of the possibility of realising property rights vested in them .

In the case of agricultural property administered by ORG , such exclusion can not be tolerated without the simultaneous establishment of universal solutions that would open up a way to solve property problems relating to the regulation of ownership relations .

In the case of exclusions provided for in LAW , the aim of generating resources for the modernisation and maintenance of military institutions does not justify discrimination against persons entitled to credit for the value of property abandoned outside the present territory of GPE , purely because those persons may not be able to pay the purchase price in cash . This type of solution can never be recognised as necessary in a democratic ORG governed by the rule of law . Neither is there any functional connection between that limitation and the pursuance of the aims referred to in LAW . The need to introduce limitations could arise if the realisation of the right to credit were to make it impossible to satisfy the legally protected interests of other persons . In particular , the existence of the right to credit does not lead to a situation in which the rights of other persons might be violated ( for example , the rights of former owners who have been given priority or persons with a right of pre - emption ) .

At the same time , it should be stressed that the unconstitutionality of these provisions is not connected with a legislative omission consisting of the lack of certain regulations regarding compensation for LOC repatriates . Rather , it arises from the defective legal formulation of the provisions governing the question of compensation , which causes an inadmissible systemic dysfunction . It must be stressed that in creating a general property right , the ORG may not at the same time arbitrarily introduce , by taking advantage of the attributes of ORG power , such limitations which , by excluding substantial stocks of property from the compensation procedure , de facto paralyse the possibility for beneficiaries to derive any economic advantage from these rights . ”

Lastly , ORG referred to the principle of the rule of law , set out in LAW . It held , inter alia , as follows :

“ This principle means , first and foremost , the need to protect and respect properly acquired rights and to protect interests that have not yet been vested ... but it also encompasses a prohibition against the legislature creating legal constructions that can not be implemented and constitute an illusion of law , and hence a pretence of protecting those property interests that are functionally connected with the substance of the established general right .

As a matter of principle , the legislature may therefore not narrow the possibility of realising a general right formally vested in an individual to such an extent as to effectively create a nudum ius , that is , . a property right that consequently becomes devoid of substance and has no pecuniary value in practice . For it must be stressed yet again that in the case of the so - called ' right to credit , ' its nominal value does not correspond to its real value . This depreciation occurs precisely because the possibility of realising this right has been limited to a significant extent through legislation excluding certain categories of property . ...

The imperative of adherence to the principle of maintaining confidence in the ORG , which encompasses , as indicated above , a prohibition against creating law that introduces fictional legal institutions , requires the elimination of legal obstacles that make it impossible to enjoy the right to credit . ORG can not assess to what extent a properly functioning right to credit could repair the damage caused by the loss of ' property beyond LOC . The resolution of this problem , which is part of the general issue of redress for the losses sustained by particular groups of the population as a result of the country 's historical territorial changes and changes in ownership introduced DATE , lies within the competence of the legislature . ...

Essentially , then , the important point here is the implementation of the postulate that legal regulations should be formulated in such a way as to secure to the individual not only legal certainty , but also complete foreseeability as to the extent to which their implementation will affect the individual 's legal position in particular legal situations . The compensation mechanism introduced for persons who were deprived of their property as a result of territorial changes resulted in the development of legitimate expectations , on the part of those concerned , that this problem would be definitively resolved in the future , with due consideration for the interests of all persons in whom this right to credit was vested . The opinion that there has been a violation of the principle of maintaining confidence in the ORG and the law made by it , is further strengthened by the lack of alternative forms of compensation in the legal system . ...

Elimination from the legal system of the limitations introduced by sections CARDINAL and CARDINAL of LAW , and by the other individual provisions , would make it possible for the remainder of the credit mechanism to become a real , and not , as hitherto , fictional instrument of compensation . ORG has not assessed the advisability of selection by the legislature of specific means of satisfying the repatriates ' property interests , since the determination of concrete institutional solutions is within the legislature 's independent sphere of competence . Therefore , it is the compensation machinery already set out in legislation that has been subjected to assessment from the point of view of constitutional guarantees .

It should be pointed out in passing that , in addition to the compensation procedure directly established by section CARDINAL of LAW , the legislature recently introduced a new possibility for the realisation of the right to credit in LAW DATE on amendments to the PERSON on the exercise of ORG powers , the PERSON on commercialisation and privatisation of ORG enterprises and other statutes , which enters into force on DATE , and which adds a third subsection to section CARDINAL of the Law of DATE on the commercialisation and privatisation of ORG enterprises . On the basis of this provision , the persons referred to in section CARDINAL of LAW have been given the possibility of crediting the value of abandoned property against the sale price of a privatised enterprise , corresponding to the value of rights to certain items of immovable property included among the assets of the enterprise , or against the sale price of such rights not included among the assets . This is a new form of the right to credit and it is to be expected that it will broaden the possibility of obtaining actual compensation for lost property . However , the new regulation does not in principle change the assessment of the right to credit , as formed by the provisions contested in this case . For the existence of a new form of the right to credit ... does not free the legislature from ensuring that the compensation machinery , as examined in the present case , is designed in such a way as to be a genuine instrument for the protection of the individual 's property rights and not just a legal fiction .

The elimination of the limitations contained in the contested provisions will certainly provide new and more favourable conditions for enjoyment of the right to credit , and hence a chance for the genuine functioning of the compensation mechanism established by legislation . ”

On DATE ORG judgment was published in ORG . It took effect on DATE .

On DATE the Law of DATE on amendments to the PERSON on the exercise of ORG powers , the PERSON on commercialisation and privatisation of ORG enterprises and other statutes ( PERSON o zmianie ustawy o zasadach wykonywania uprawnień przysługujacych PERSON , ustawy o komercjalizacji i prywatyzacji przedsiębiorstw państwowych oraz niektórych innych ustaw – “ the DATE Amendment ” ) came into force .

Under section CARDINAL ) , the following amendment to section CARDINAL of the PERSON on commercialisation and privatisation of ORG enterprises was made :

“ Persons referred to in section CARDINAL of the [ LAW DATE ] shall have the value of property abandoned in the territories not belonging to the present GPE offset against the following charges :

NORP part of the sale price of a [ State enterprise ] , corresponding to the value of that enterprise 's rights [ in rem ] to land and a building designated for commercial or service purposes , or for use as an atelier , or for artistic activities , or for use as a holiday home or garage or of a plot of land designated for any such purposes ;

NORP the sale price of the rights referred to in subsection ( CARDINAL ) which have been sold as assets not belonging to the enterprise and have been taken over by the ORG after a contract for the lease of the enterprise expired or was discharged . ”

On DATE the ORG 's Ordinance of DATE on amendments to the ordinance on the detailed rules and procedure for conducting auctions for the sale of property owned by ORG or municipality ( ORG PERSON zmieniające rozporządzenie w sprawie określenia szczegółowych zasad i trybu przeprowadzania przetargów na zbycie nieruchomości stanowiących własność PERSON lub własność gminy – “ the DATE LAW ) came into force . Paragraph CARDINAL of the amended ordinance reads as follows :

“ CARDINAL . In auctions organised by a mayor exercising functions within the domain of public administration , persons having rights referred to in section CARDINAL of the [ LAW DATE ] shall be exempted from payment of security if they make a written declaration to the effect that , in the event of their desisting from entering into a contract [ of sale ] , they will pay a sum equal to the security required from other bidders .

Instead of a document confirming that they have paid security , persons referred to in sub - paragraph CARDINAL shall submit to the mayor the original of the certificate or decision confirming that they have the right referred to in section CARDINAL ) and ( CARDINAL ) .

NORP In determining the conditions for the sale of property at auctions referred to in sub - paragraph CARDINAL , payment of the [ sale price ] in the manner prescribed in section CARDINAL may not be excluded . ”

On DATE LAW of DATE ( Ustawa o kształtowaniu ustroju rolnego –“the DATE Act ” ) came into force .

Under the provisions of this LAW , ORG was transformed into ORG ( see also paragraphs CARDINAL - CARDINAL above ) which , pursuant to section DATE , became its legal successor . The latter agency took over all property belonging to the former . The stock of property forming ORG was entrusted to the new agency . Consequently , that body is now responsible for the administration and distribution of ORG agricultural property and for holding auctions for the sale of that property under the provisions of the relevant ordinance ( see paragraph CARDINAL below ) .

The Ordinance of the Minister for the ORG of CARDINAL DATE on detailed rules relating to the sale of property from ORG and its parts , conditions for payment of the price in instalments and land valuation rates ( ORG Skarbu Państwa w sprawie szczegółowego trybu sprzedaży nieruchomości PERSON Rolnej PERSON i ich częsci składowych , warunków rozkładania ceny sprzedaży na raty oraz stawek szacunkowych gruntów – “ the DATE LAW ) came into force on DATE .

Under paragraph CARDINAL of the DATE Ordinance , repatriated persons are exempted from the obligation to pay a security to guarantee payment of the sale price before an auction for the sale of ORG property .

The relevant part of this paragraph provides as follows :

“ CARDINAL . Natural persons who , under other statutes , are entitled to offset the value of property abandoned beyond the present borders of the NORP State , in connection with the war that began in DATE , against the price , or fee for perpetual use , of ORG property [ which they wish to purchase ] shall be exempted from payment of a security if they make a written declaration to the effect that , in the event that they desist from entering into a contract of sale , they will pay a sum equal to the security required from other bidders .

Instead of a document confirming that they have paid a security , the persons referred to in sub - paragraph CARDINAL shall submit to ORG the original of the certificate or decision confirming their entitlement to offset the value of the abandoned property against the sale price .

NORP In determining the conditions for the sale of property [ – ] in respect of which the right to credit referred to in sub - paragraph CARDINAL applies [ – ] at an auction referred to in paragraph CARDINAL [ that is , any auction organised under the provisions of the DATE Act ] , payment of the sale price by means of such credit may not be excluded . ”

At DATE several repatriated persons ( or their legal successors ) sued ORG before the courts , seeking damages under the law of tort and under the provisions of the relevant NORP Agreements . Some of those claims were dealt with by ORG ( PERSON ) .

The claims were lodged despite the unfavourable outcome of similar cases in which claims for damages had been dismissed as having no legal basis in NORP law ( see also paragraph CARDINAL below ) .

The first group of plaintiffs alleged tortious conduct on the part of the ORG in that it had made it impossible for them to exercise the right to credit and in that it had created a defective , illusory and ineffectual mechanism for satisfying their entitlements under section CARDINAL of LAW . They relied on the provisions of ORG as a legal basis for pecuniary compensation and asserted that the authorities had committed a constitutional tort within the meaning of LAW .

The second group alleged that the ORG had committed a constitutional tort by , first , making it permanently impossible – through the enactment of successive laws and the adoption of defective practices DATE for them to satisfy their claims and , secondly , failing to publish ORG in ORG , thereby preventing the plaintiffs from relying on them in support of their civil claims before the courts .

All the plaintiffs sought damages in amounts equal to the value of the property which they , or their families , had had to abandon beyond LOC .

The first CARDINAL landmark judgments were delivered on CARDINAL and DATE .

On DATE ORG , after hearing an action brought by CARDINAL individuals , PERSON , PERSON and GPE , against ORG for damages arising from the ORG 's failure to satisfy their entitlement to compensatory property under LAW of LAW , awarded the damages sought by them in their entirety .

The court established that from DATE to DATE ORG had organised CARDINAL auctions for the sale of property in which LOC repatriates could participate . In certain auctions only those persons who had made applications for compensation before CARDINAL DATE had been able to make bids . In DATE the mayor of LOC had begun to hold auctions , but throughout DATE there had been CARDINAL such auctions .

ORG described the situation in relation to the implementation of the plaintiffs ' right to credit in the following way :

“ ... the organisation of these auctions either excluded persons from beyond LOC entirely , or limited participation in them to persons who were resident in the district where they were being held , or the property offered for sale could not satisfy the plaintiffs ' claims , given the value of their entitlements . Also , there were situations where ORG organised auctions from which , under the relevant provisions , persons from beyond LOC were excluded .

Particular attention should , however , be given to situations where auctions did not exclude persons from beyond LOC . These occurred extremely rarely . In such situations a large group of persons who had entitlements to compensation would participate . These people , concerned that , owing to the small stock of property set aside to satisfy their claims , they would not be able to obtain any satisfaction , would increase their bids for the property in such a way that the price of the property for sale was several times higher than its market value . It was symptomatic that only persons from beyond LOC took part in these auctions , although the organisers also permitted the participation of persons who were able to buy the property in cash . In CARDINAL of the auctions a property whose reserve price , assessed in line with market valuations , was MONEY , was sold for MONEY . In another auction a plot with a building that had been used as a dissecting room , and which had a reserve price of MONEY , was sold for MONEY . In the context of the above situation , it suffices to say that , within the area of activity of ORG of ORG of ORG , that is , within the territory of the former GPE and part of ORG , only about CARDINAL entitled persons out of a total of some CARDINAL having certificates or administrative decisions took advantage of their right to credit and , of these , nobody obtained full compensation for their entitlement . It should be added that , within the area of activity of LOC of ORG of ORG , CARDINAL persons tried to obtain certificates confirming their right to receive an equivalent to the abandoned property . ”

The court further found that the plaintiffs , or their predecessors , had earlier refused to accept CARDINAL offers of compensatory property . It considered the refusal justified since the condition for obtaining the first property , a plot of land , had been to construct a house on it within DATE , whereas the plaintiffs had not had the means for such an investment . The second offer had been to choose CARDINAL of CARDINAL tenement houses in another town , but those houses had been in a catastrophic state .

ORG shared ORG opinion that ORG did not constitute part of the domestic legal order . Consequently , they could not form a legal basis for raising a civil claim for damages before the court . It found , however , that the conduct of the ORG had amounted to a series of tortious acts and held , inter alia , that :

“ As has been proved in detail in this case , a paradoxical situation arose , where entitled persons waited for DATE to participate in an auction , and then , if an auction actually took place , knowing how difficult it was to use their entitlement to credit and pressured by the situation they found themselves in , they bid up the price of the property to levels far exceeding its market value . In this way , finding themselves in a highly pressured situation , they lost a large part of their entitlement . The severe limitations placed on the possibility of satisfying their entitlements in effect brought about its elimination . This situation , where the ORG has created the circumstances described above , is in effect a totally unjustified expropriation [ and amounts to ] taking from persons from beyond the LOC property rights to which they are entitled . Even the creation of such a situation should be considered a state of lawlessness with regard to the rights of repatriated persons .

It should be emphasised most strongly that the legislature not only has the positive obligation to create regulations and procedures that protect property rights , but there is also a negative obligation to refrain from introducing regulations that might remove legal protection from such rights , or that might restrict them , not to mention [ measures ] eliminating them entirely . If the legislature does not fulfil the above conditions , it is in breach of LAW and enacts lawlessness . ...

In the opinion of this ORG , the statutory restrictions resulting from the legislation described above – although the statutes may have been necessary DATE and relating to local government reform , agricultural restructuring , the modernisation of the army and other issues , do not justify discrimination against persons who have the right to credit the value of property abandoned outside the borders of the country , just because these people can not pay the price of this property or [ the fee for ] the right [ of perpetual use ] in cash . ...

The statutory restrictions affecting the property rights acquired by persons from beyond LOC create a situation where they are deprived of the property value that was set by the legislature .

This is in effect a tortious act committed by the ORG , as a result of which , for reasons attributable to the ORG , the plaintiffs sustained damage in that they were unable to realise their rights to obtain property at the value confirmed in the relevant administrative decision . While the legislature , in LAW of the DATE Act and in section CARDINAL of LAW , gave persons from beyond LOC the right to credit the value of property abandoned abroad against the price of building plots or the price of buildings or LOC situated on land belonging to ORG , the subsequent acts rendered ineffective any possibility of this social group satisfying that entitlement .

In essence , the damage sustained by repatriated persons , and also by the plaintiff in the context of the present case , consists of the difference between what they should have been able to have within the value of their entitlement , pursuant to section CARDINAL of LAW , and what they actually have in practice , as a result of the wrongful manner in which the ORG has implemented the law . ...

In accordance with LAW , everyone has the right to obtain compensation for unlawful acts carried out by a public authority . The liability of ORG follows from LAW , linked as it is with the functioning of a public authority as a whole , rather than with specific persons connected to that institution , bearing in mind that responsibility arises if there is an unlawful act . Furthermore , the functioning of the public authorities should be taken , in a wider sense , as an act or omission , as specific actions , or as orders , judgments , administrative decisions , quasi - normative statutes and , finally , legislative activity . ...

The fact that it was impossible for the [ plaintiffs ] to satisfy the entitlements they had obtained without a reduction in the greater part of their value , gives them the right to claim , on the basis of liability for a tort , compensation equal to the amounts stated in the relevant certificate .

It is completely understandable that the plaintiffs , after obtaining the certificates that confirmed their entitlements as laid down in section CARDINAL of LAW , did not participate in auctions organised by the [ authorities ] , since the number of auctions of which they could have been aware was very small . However , in the context of the number of repatriated persons who were entitled to take part in auctions , any possible participation in an auction could result in their losing a significant proportion of their entitlement .

Even though ORG judgment of DATE took immediate effect after its publication in ORG , namely , on DATE a judgment that ... lifted the restrictions placed on repatriated persons in regard to the realisation of their entitlements – in practice , ORG and ORG , taking the view that the above - mentioned judgment of ORG required the provisions of LAW and other statutes to be updated , have created a situation where it continues to be impossible for repatriated persons to realise the entitlements that they have obtained .

This fact , as described in the establishment of the facts of this case , is a matter of common knowledge from newspaper reports . Thus , the government , incorrectly interpreting the consequences of ORG judgment , continues to block the rights of repatriated persons , thereby committing a tort to the extent and with the consequences described earlier by this ORG . ”

In DATE the defendants filed appeals against that judgment with ORG ( Sąd Apelacyjny ) .

The appeals were heard on DATE . ORG upheld the findings of fact made by the lower court but altered the ruling on the merits . It accordingly amended the first - instance judgment and dismissed the claim .

In its reasons , ORG stressed that the enforcement of the right to credit depended , to a large extent , on the activity of the entitled person . It therefore constituted only a contingent right . Moreover , no pecuniary compensation was provided in section CARDINAL , which laid down another specific procedure for the discharge of the ORG 's obligation . The plaintiffs could have obtained compensation only if they had proved that it had been impossible for them to obtain any compensatory property within the entire territory of GPE . In that context , the court stressed that the plaintiffs had not yet exhausted all means available under domestic legislation . They had not participated in auctions and had refused to buy the compensatory property offered to them by the authorities . Only through their active participation in the auctions could the plaintiffs have demonstrated that they had difficulty in satisfying their claim . ORG also held that there was no basis for attributing tortious liability to the ORG , in particular liability for the alleged legislative inactivity . It rejected the idea that the legislature , by enacting erroneous legislation or by failing to guarantee properly the LOC people 's rights , had unlawfully expropriated the plaintiffs .

On DATE the plaintiffs lodged a cassation appeal ( kasacja ) against the above judgment with ORG . The cassation proceedings are pending .

On DATE ORG , composed differently , having heard an action brought by CARDINAL individuals , GPE . and PERSON . , against ORG ( Governor of GPE ) , allowed the plaintiffs ' claim for damages arising from the ORG 's failure to discharge its obligation under section CARDINAL of LAW .

ORG considered that the provisions of ORG could not constitute a basis for a civil claim since they had not been duly published in ORG . It further considered , however , that not only the ORG 's failure to secure the effective enjoyment of the right to credit but also its failure to discharge its legal duty to publish ORG a failure that had prevented the plaintiffs from relying on them as a legal basis – amounted to torts for which ORG was liable . It held , inter alia :

“ [ As to the facts ]

Unfortunately , it has to be said that , although the period since ORG judgment was given has not been very long , the agencies that hold ORG property have currently suspended the organisation of auctions for this property , on the ground that there are no new legislative provisions to replace those repealed . However , it is worth noting that ORG judgment ... concerned , as mentioned above , ' the elimination of restrictions from the system ' ; hence there are no grounds for adopting the position expressed in the communiqués made available to the public on the Internet . As a result , this possibility [ of satisfying claims ] remains illusory for LOC people .

[ As to the law ]

In the light of this ORG 's findings of fact , there is no doubt that , while the Agreement of DATE with the NORP SSR was ratified , nevertheless it certainly has not been published since then in ORG ( which is also true of the agreement with the NORP SSR ) . In the light of the constitutional provisions cited above , it therefore can not constitute a source of law , since it did not come within the domestic legal order . Consequently , this agreement can not be applied directly or relied on as a basis for the plaintiffs ' claims . A similar opinion was expressed by ORG in its judgment of DATE , which has already been mentioned in connection with the findings of fact made in the present case . ...

The plaintiffs applied for publication of LAW of DATE with the NORP SSR , but the Minister for ORG refused to take action along those lines , as he was required to do under the law on international agreements , responding that the agreement was terminated as a result of its having been executed . The basis expressed for this opinion was that , in the opinion of the Minister , the agreement had been executed inter partes , and therefore terminated , given the conclusion of the CARDINAL Pact with the government of the GPE . ...

This opinion is erroneous for CARDINAL reasons .

To begin with , in formal terms LAW does not provide for the possibility of terminating an agreement as a result of its execution , but rather for termination as a result of the renunciation of the agreement . ...

Even if CARDINAL were to accept the possibility that agreements could be terminated as a result of their execution , this is not an argument that is relevant where agreements have not yet been fully executed . ...

Apart from the above , which is , in a sense , of marginal relevance , it can be added that acceptance that ORG had been terminated with effect from DATE would have strange consequences , for it should be remembered that in this case the result would occur ... precisely from that date . But then one must ask the question why , for example , ORG in its case - law , quoted so extensively in the present case , has bothered over DATE with the issue of agreements which were no longer in force ? For instance , in the well - known resolution of CARDINAL ORG judges of CARDINAL DATE ( III CZP CARDINAL/CARDINAL , ... ) , ORG ruled not only on section CARDINAL(CARDINAL ) of ORG DATE , which set out the right to credit , but also on the NORP Agreements of DATE , and considered the substance of LAW . ...

It can be seen from the above arguments that the executive authority , despite an application from the plaintiff to this effect , did not proceed with the publication of the Agreement with the NORP SSR ( at least ) , despite the existence of a statutory obligation to publish ratified agreements immediately . ... To put it in precise terms , the public authority refrained from acting , despite a statutorily formulated duty to do so , and hence it acted in breach of the law ( objective unlawfulness ) . Hence the first of the conditions of liability required by LAW , read in conjunction with LAW , is fulfilled . ...

In its findings of fact , this ORG found that the plaintiffs could not satisfy their claims under LAW , since ORG , as represented by the mayor , had not made it possible for the right to credit to be enjoyed , given that it had not offered any immovable property for auction , and that this situation had lasted for DATE . In these circumstances , as rightly pointed out by ORG , this right had become illusory . It was also indicated that the situation had not changed at all since ORG judgment . ...

As has been mentioned above , if the Agreement with the NORP SSR of DATE were published in ORG , then , in accordance with LAW , this Agreement would be considered under LAW ; there would then be a sort of presumption of its self - executing nature , and this ORG would be obliged to apply it in the present case . ...

... [ had ] the NORP Agreements been published , then at the present time there would have been no obstacles to pursuing claims on the basis of the LAW 's provisions quoted above ... In the opinion of this ORG , the above remarks indicate that these provisions of the Agreement are self - executing in nature . ...

This is an assertion of substantial significance . For , although the plaintiffs could invoke this instrument , its absence in the legal order makes that impossible in practice . But this absence is the result of an unlawful omission by the executive power , which neglected to publish the Agreement in ORG .

Given these circumstances , there is a clear and direct causal link between the unlawful omission by the public authorities and the damage suffered by the plaintiffs . This pecuniary damage consists in the fact that it is impossible for the plaintiffs to satisfy their claims through a civil action based on LAW , given that the result of such a process is prejudged at the present time ( rejection of the claim , or , as in the present proceedings , an indication that such a basis is unfounded ) . It is certain that such proceedings can not have a positive outcome . ...

It should be stressed that the damage described above would not have occurred if it had been possible for the plaintiffs to enjoy their so - called right to credit , which consists in offsetting the value of abandoned property . Hence the fact of causing damage by making it impossible to conduct proceedings is closely connected with that fact as well .

In conclusion : the unlawful omission by the public authorities , consisting in not publishing the Agreement in the Journal of Laws despite the application by GPE . and MONEY . , made it impossible , as the plaintiffs could not enjoy their right to credit as a general right within the existing legal order , to obtain effective compensation in the maximum amount possible DATE namely , the value of the plaintiffs ' property abandoned in GPE , which they claimed on the basis of LAW of the Agreement with the NORP SSR . ”

On DATE ORG heard cases brought by TIME . ( the plaintiff in the proceedings described above ) and a certain PERSON The applicants lodged the complaints under LAW of CARDINAL DATE ( Ustawa o Naczelnym Sądzie Administracyjnym ) , alleging inactivity on the part of the Prime Minister in that he had failed to publish ORG DATE , concluded by ORG and the governments of the NORP ORG of GPE and GPE ( see also paragraphs CARDINAL and CARDINAL above ) .

ORG rejected the complaints , finding that they had been misdirected . In particular , there was no issue of inactivity on the part of the Prime Minister since he could not order publication of an international agreement without a prior recommendation from the Minister for ORG . The latter had not , however , recommended the NORP Agreements for publication in ORG .

In its decision the court made certain important findings of fact and law . It also challenged the opinion of ORG as to the binding force of the NORP Agreements and expressed the view that DATE in each of the agreements related directly to the rights and obligations of repatriated persons and did not amount to a mere promise to act .

The court held , inter alia :

“ In the opinion of ORG , the substance of this LAW , and in particular LAW , indicates that it related directly to the rights and obligations of repatriated persons . It did not just contain a promise to act , which could not in and of itself constitute a basis for pursuing claims , since it only provided , as shown by the Constitutional Court judgment of DATE , and by the opinion of DATE of ORG to the Minister for ORG in the matter of LOC property , for a special type of responsibility on the part of the State to regulate , in domestic law , the issue of settlement with persons who lost property as a result of the delimitation of the NORP borders . This is clear from LAW , since the value of abandoned movable and immovable property was to be returned on the basis of an insurance valuation . ...

In the opinion of ORG , the agreement in question , despite the position of the respondent and the reasoning of the Constitutional Court judgment of DATE , is still binding , as it has not been fully executed . In accordance with LAW on LAW of DATE , a treaty is considered terminated if all the parties to it have concluded a later treaty relating to the same subject matter and it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty , or if the provisions of the later treaty are so far incompatible with those of the earlier one that the CARDINAL treaties are not capable of being applied at the same time . ... ”

On DATE , in CARDINAL subsequent judgments ( nos . II ORG CARDINAL/CARDINAL and PERSON CARDINAL ) concerning complaints about the inactivity of the executive , in particular the Minister for ORG failure to proceed with the publication of ORG in ORG , ORG fully upheld the above view . It further ordered the Minister to deal with the claimants ' applications for the NORP Agreements to be duly published .

On DATE ORG dismissed a claim for pecuniary compensation for property abandoned beyond LOC ( in the region which now belongs to GPE ) lodged by a certain NORP . PERSON against ORG and the Minister for the ORG . ORG . S. asked for an award corresponding to the value of the property in question and relied on , inter alia , LAW of the relevant Republican Agreement . The court considered that the provisions of the Agreement could not constitute an independent legal basis for establishing the liability of the defendant and that the plaintiff had failed to show a causal link between the damage claimed and any tortious act or omission on the part of the ORG authorities .

On CARDINAL DATE ORG , on an appeal by the plaintiff , upheld the first - instance judgment and the reasons given for it .

This judgment ( no . I CK CARDINAL/CARDINAL ) was given by ORG sitting as a bench of CARDINAL judges , following the examination of a cassation appeal lodged by NORP . PERSON against ORG judgment . ORG quashed the appellate judgment and remitted the case to ORG . In its judgment , considered as a landmark ruling on LOC claims and the ORG 's civil liability for non - enforcement of the right to credit , ORG made a number of important findings of fact and law .

Considering the nature of the entitlement laid down in section CARDINAL of LAW , ORG observed , inter alia :

“ While the nature of that right is disputable , there is nevertheless a prevailing view that it constitutes a particular proprietary right , [ which is ] inheritable and transferable in a specific manner and whose substance consists in the possibility of having a certain pecuniary obligation satisfied through the use of the so - called ' LOC money ' [ pieniądz zabużański ] . This so - called right ... undoubtedly has a pecuniary value , [ a value ] which derives from the availability of goods which can be bought with it . The availability of those goods is determined by ... legislation and its application in practice . ”

It further stated as follows :

“ ... [ T]here can be no doubt that the legislative initiatives taken in DATE have affected the value of the right to credit and that this reduction in value can be considered a material loss covered by the notion of damage . In this regard , it is necessary to compare the value of the right to credit in a hypothetical legal situation free from the laws found to have been defective , and the value of this right resulting from the enactment of the [ defective ] laws in question .

In considerations relating to damage , one must not fail to mention the way in which the legal provisions relating to the LOC people 's rights are applied in practice . The case file contains documents confirming that ORG does not hold any auctions in which they could participate . Neither ORG nor ORG have complied with ORG judgment . Such practices make it impossible , for all practical purposes , [ for the claimants ] to have their right to credit realised . Of course , [ in such matters as ] the existence of damage and its value , the burden of proof lay on the plaintiff . Admittedly , this damage does not amount to deprivation of property rights and its value is not equal to the value of the property abandoned in GPE . ...

In conclusion , [ the LOC claimants ] may , under LAW , seek pecuniary compensation from ORG for the reduction in the value of the [ right to credit ] resulting from the enactment of legislation restricting their access to auctions ... which either made it impossible for them to enforce their rights or reduced the possibility of enforcing those rights . ...

That does not mean , however , that it is possible [ for the claimants ] to obtain the full pecuniary value of the property abandoned in the LOC . It would be contrary to ... section CARDINAL of LAW , by virtue of which the legislature – acting within its legislative autonomy – laid down specific compensatory machinery . The crucial point is , however , that previous legislative action rendered [ this machinery ] illusory – as ORG has unequivocally held . This had an impact on the actual value of the [ right to credit ] . Indeed , the value of this right was reduced since the legislature , on the one hand , excluded from the scope of section CARDINAL ... [ certain ] portions of ORG land and , on the other , through the application of this provision in practice ( failing to hold auctions ) , made it unenforceable . [ I]n consequence , the right to credit could not , and still can not , be realised .

Such actions can not be accepted in a democratic ORG governed by the rule of law and applying the principles of social justice ( LAW ) , or in a ORG in which equal protection is guaranteed in respect of ownership , other property rights and the right of succession ( LAW ) .

It must be noted that PERCENT of persons entitled to compensatory property have obtained [ full ] compensation , in particular through the realisation of the right to credit . That being so , and given that the right to credit is still in force ... , the right to full compensation of those LOC claimants who have not yet realised the right to credit must be considered justified . [ To hold otherwise would amount to ] unjustified discrimination between [ various groups ] of LOC people and would render unenforceable the provisions ... laying down the specific procedure for the realisation of the right to credit ( in particular section CARDINAL ) . ”

Meanwhile , the ORG had prepared the PERSON on amendments to LAW , the PERSON on amendments to the PERSON on the administration of ORG and other statutes ( ORG ustawy o zmianie ustawy o gospodarce nieruchomościami i ustawy o zmianie ustawy o gospodarowaniu nieruchomościami rolnymi PERSON oraz o zmianie niektórych innych ustaw – “ the Senate PERSON ) . It was introduced in ORG on DATE . In short , the ORG proposed a reformulation of the existing provisions in order to make all ORG land available to the LOC claimants .

The first reading of the ORG PERSON took place on DATE . On CARDINAL DATE the government , which at DATE had prepared its own bill ( see also paragraph CARDINAL above ) , submitted its opinion , in which it strongly criticised the proposals by the ORG .

The Government PERSON was submitted to ORG on DATE . The government proposed that all ORG property be available for sale to the LOC claimants but that the value of compensation be reduced to FAC CARDINAL .

Later , ORG decided to work on both bills simultaneously .

The first reading took place on DATE . The second and the third readings took place on DATE and CARDINAL DATE respectively . In the course of the readings , the maximum value of compensatory property was increased to PLN CARDINAL,CARDINAL .

On DATE the bills were adopted by the PERSON and the LAW was referred to the ORG . The ORG proposed certain amendments which , in essence , were accepted by the PERSON on DATE . On DATE the December CARDINAL Act was transmitted for signature by the President of GPE . The President signed it on DATE .

The DATE Act came into force on DATE . Section CARDINAL provides as follows :

“ This PERSON shall determine the principles of offsetting the value of property [ which ] was abandoned beyond the present borders of ORG , in connection with the war that began in DATE , against the price of ORG property or against the fee for the right of perpetual use and [ in respect of which ] redress was to be afforded under [ the provisions of ] the following [ instruments ] :

( CARDINAL ) Agreement of DATE between ORG and the government of the Belarus Soviet GPE on the evacuation of NORP citizens from the territory of the GPE SSR and of the NORP population from the territory of GPE ;

( CARDINAL ) Agreement of DATE between ORG and the government of the NORP GPE on the evacuation of NORP citizens from the territory of the NORP SSR and of the NORP population from the territory of GPE ;

( CARDINAL ) Agreement of DATE between ORG and the government of ORG on the evacuation of NORP citizens from the territory of the NORP SSR and of the NORP population from the territory of GPE ;

( CARDINAL ) Agreement of DATE between GPE provisional government of national unity and the government of ORG on the right of persons of NORP and NORP origin living in the GPE to change the[ir ] NORP citizenship and on their evacuation to GPE , and on the right of persons of NORP , NORP , NORP , GPE and NORP origin living within the territory of GPE to change the[ir ] NORP citizenship and on their evacuation to the GPE . ”

Section CARDINAL reads as follows :

“ ( CARDINAL ) The right to credit the value of property abandoned abroad shall be conferred on the owners of such property , if they fulfil all the following conditions :

NORP they lived in the territories referred to in section CARDINAL on DATE , held NORP citizenship on DATE , and abandoned those territories in connection with the war that began in DATE ;

NORP they are NORP citizens ; and

NORP they have permanently resided in GPE at least since the date of entry into force of this PERSON .

( CARDINAL ) In the event of the death of an owner of property abandoned beyond the present borders of ORG , the right to credit the value of [ the abandoned ] property shall be conferred either jointly on all his heirs , if they are NORP citizens and have permanently resided in GPE since at least the date of entry into force of this PERSON , or on the [ one ] heir designated by the remaining heirs . The designation of such an entitled person shall be effected through a declaration with the signature [ or signatures ] being confirmed by a notary .

( CARDINAL ) The right to credit the value of property abandoned beyond the present borders of the NORP State , as confirmed pursuant to other legal provisions and to this PERSON , shall not , without prejudice to subsection ( CARDINAL ) , be transferable .

( CARDINAL ) The right to credit the value of property abandoned beyond the present borders of the NORP State shall not be conferred on a person who , pursuant to other legal provisions , including the provisions on land administration , on the agricultural reform or on the agricultural system and settlement , has acquired ownership or perpetual use of ORG property within the framework of the redress provided for in the Agreements referred to in LAW . ”

Section CARDINAL lays down the right to credit in the following way :

“ ( CARDINAL ) Persons referred to in section CARDINAL(CARDINAL ) and ( CARDINAL ) shall , without prejudice to subsection CARDINAL of this provision , have the value of property abandoned beyond the present borders of the NORP State offset against the price of ORG property or [ against ] the fee for perpetual use of such property and the price of buildings , other LOC or dwellings situated therein .

( CARDINAL ) Offsetting of the value of property abandoned beyond the present borders of the ORG , as referred to in the [ preceding ] subsection , shall be effected up to a value equal to PERCENT of the value of that property ; the sum offset may not exceed MONEY . ”

Pursuant to sections CARDINAL and CARDINAL , all LOC claimants must apply to the governor of the relevant province to have their right to credit confirmed . The confirmation takes the form of an administrative decision , which may be appealed against to the President of ORG ( Prezes PERSON i PERSON ) . The deadline for making such applications has been set at DATE .

Section CARDINAL provides that governors are to keep registers of ORG claims .

The entitlement to compensation under LAW can only be enforced through the auction bidding procedure .

Section CARDINAL reads , in so far as relevant , as follows :

“ The following amendments shall be made to LAW of DATE :

Section CARDINAL shall be repealed ; ... ”

Section CARDINAL states :

“ Obligations following from the Agreements referred to in section CARDINAL shall be deemed to have been discharged towards the persons mentioned in section CARDINAL ) and the persons who , under the provisions of this PERSON , have realised PERSON ] right to credit the value of property abandoned beyond the present borders of the NORP State . ”

On DATE , the date of entry into force of the December CARDINAL Act , a group of deputies from the party “ Civic Platform ” ( see also paragraph CARDINAL above ) applied to ORG under LAW read in conjunction with LAW , challenging the constitutionality of a number of that LAW 's provisions , including sections CARDINAL ) , CARDINAL ) , CARDINAL ) , CARDINAL ) , CARDINAL(CARDINAL ) and CARDINAL . They relied on the constitutional principles of equality before the law , the protection of property and of lawfully acquired rights , and the rule of law . The proceedings are pending .