ITEMID: 001-113877
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: OGÓREK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The applicants, Mr Krzysztof Ogórek and Mr Karol Ogórek (the applicants”), are Polish nationals, who were born in 1929 and 1928 respectively and live in Tarnów Opolski. They were represented before the Court by Mr J. Forystek, a lawyer practising in Kraków.
The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Before the Second World War the applicants’ father, Paweł Ogórek, owned a limestone plant which operated under the name “Limestone Plant Ogórek and Co.” (Zakłady Wapienne Ogórek i Spółka). The company also had a German name “Kalwerke Ogórek et Co.” It was run by the applicants’ father before and during the war, until 1945.
In 1945 the plant consisted of two furnaces, one limestone plant, a smithy, an outhouse, office premises and 32 hectares of land, which included limestone deposits.
4. On 14 June 1948 the plant was nationalised by virtue of the Minister of Industry and Commerce’s (Minister Przemysłu i Handlu) decision (“the 1948 decision”) issued pursuant to section 3(1) and (5) of the Law of 3 January 1946 on the nationalisation of basic branches of the State economy (Ustawa o przejęciu na własność Państwa podstawowych gałęzi gospodarki narodowej) (“the 1946 Act”). The decision was published in the Cabinet’s Official Gazette (Monitor Polski) no. 58 of 26 June 1948 and took effect on that date. It was issued together with an annex listing companies, including the one belonging to the applicants’ father, which were subject to nationalisation and stipulated that “... enterprises listed in the annex thereto shall be taken over by the State in return for compensation”.
5. On 30 December 1990 the applicants asked the Minister for Economy (Minister Gospodarki) to declare the 1948 decision null and void.
9. On 30 July 2007 the Minister for Economy declared null and void the 1948 decision, finding that it had been issued in flagrant beach of the law since at the material time there had been no legal basis for the nationalisation of the applicants’ property. In the course of the proceedings, the authorities obtained expert reports determining the enterprise’s potential employment capacity on one shift vis-à-vis the technical equipment and its condition at the material time, bearing in mind war damage. It emerged from those reports that the plant had been partly destroyed and its potential production capacity had been severely limited due to the lack of electricity. This, in turn, justified the conclusion that its real employment capacity at the material time had been not more that 42 people on one shift, not from 70 to 213 as estimated for the purposes of the 1948 decision. Consequently, nationalisation of the plant had been unlawful as, pursuant to section 3(1) B of the 1946 Act, it could only be effected in respect of enterprises employing a minimum of 50 persons on one shift.
10. On 6 August 2007, relying on the above decision, the applicants asked the Minister for Infrastructure to annul the decision validating the acceptance protocol on taking over the nationalised property (orzeczenie o zatwierdzeniu protokołu zdawczo-odbiorczego), issued by the Minister for Construction and Building Materials Industry (Minister Budownictwa i Przemysłu Materiałów Budowlanych) on 29 November 1961.
11. Since no action had been taken for some 17 months, on 21 January 2009 the applicants lodged a complaint with the Warsaw Regional Administrative Court, alleging inactivity on the part of the Minister for Infrastructure.
12. On 23 February 2009 the Minister for Infrastructure declared the contested decision null and void, concluding that it had been issued in flagrant breach of the law because it had been based on the 1948 decision found to have been ab initio unlawful.
13. On 11 February 2003 the applicants issued the Prime Minister a legal notice, summoning him to “remove the state of infringement of a law” (wezwanie do usunięcia naruszenia prawa) by enacting the Cabinet’s ordinance ensuring the proper implementation of the 1946 Act within 30 days from the date of service of that notice.
The applicants relied on section 7 of the 1946 Act, by virtue of which a Cabinet’s ordinance was to be issued in order to determine the rules governing the calculation and means of payment of compensation for nationalised property (see also paragraphs 39-40 below). They stressed that, despite the fact that although by that stage 57 years had elapsed from the date of entry into force of the 1946 Act and despite the State’s legal duty to implement fully its provisions, the Cabinet had not yet enacted the ordinance, thus making it impossible for the former owners to receive the promised compensation. They further maintained that the State authorities’ failure to act amounted to a constitutional tort (delikt konstutucyjny) in the form of a legislative omission (zaniechanie legislacyjne) – for which both the former Prime Ministers of Poland and the current one had been responsible. Simultaneously, the applicants summoned the Prime Minister to pay them compensation in an amount of 30,000,000 Polish zlotys (PLN) for the nationalised plant, together with statutory interest from 1 July 1949 (one year after the 1948 decision had taken effect) until the date of settlement.
14. On 26 February 2003 the Prime Minister’s Chancellery, in its reply to the applicants’ notice, stated, among other things, the following:
“In connection with [your legal notice] and acting on the Prime Minister’s instruction, I should inform you that there is no legal basis for the issuance of the ordinances referred to in sections 6 and 7 of the 1946 Act by the Cabinet.
...
The statutory authorisation (upoważnienie ustawowe) to issue ordinances referred to in section 7(4) and (6) [of the 1946 Act] sets out a range of matters for regulation. These are: the composition of the [compensation] commission, the rules for the appointment of its members, the quorum, the rules of procedure before the commission, the rules for appeals against its decisions, the assessment of circumstances relevant for compensation, the means of payment of compensation and determination of the amortisation of securities.
It must be noted that the enactment of ordinances governing most of the above matters would be incompatible with the laws applicable at present. ... The matters regulated by [the 1946 Act] and [to be regulated] by the prospective ordinances relate to the constitutional right of property, a matter which is particularly designated for regulation in the form of a statute. It is therefore doubtful that any statutory authorisation to issue an ordinance could transfer [to the Cabinet] the entirety of the matters included in the authorisation, the more so as there are already in place and in force statutory provisions enacted after the entry into force of [the 1946 Act]. Issuing today, on the basis of this Act, ordinances under its section 7(4) and (6) could lead to the incompatibility of statutory solutions (subsequent to the Act) with ordinances.
...
[P]ursuant to Article 92 § 1 of the Polish Constitution, ... the enactment of an ordinance is admissible only on the basis of a detailed authorisation included in a statute and in order to implement that statute. This authorisation must be of a detailed nature in terms of the subject (must state an authority competent to issue an ordinance), the object (must state the range of matters delegated for regulation) and its content (must state the directions as to the content of an [ordinance]).... Pursuant to the Constitutional Court’s case-law, the absence of directions is sufficient to consider the authorisation unconstitutional, even if the remaining requirements are met.
...
First of all, the matters delegated in the [relevant] authorisation should have been addressed in [the 1946 Act] itself. The matter left by the legislature for regulation by ordinances (e.g. the procedure for the appointment of members of the commission, the procedure for appeals, the amortisation of securities, questions of compensation) are of such importance for an individual and his or her constitutional rights and guarantees that they cannot be regulated by any means other than a statute. ... Moreover, the statutory authorisation in [the 1946 Act] does not contain directions.
In sum, it should be concluded that in the light of the above arguments, it would not be legally admissible to issue the Cabinet’s ordinances on the basis of section 7(4) and (6) of [the 1946 Act].”
15. On 11 March 2003 the applicants lodged a complaint under the provisions of the law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) (ustawa o Naczelnym Sądzie Administracyjnym), alleging inactivity on the part of the Prime Minister in that the Cabinet had failed to issue an ordinance enabling the full implementation of the 1946 Act. This, in their submission, was in breach of several provisions of the Constitution.
16. On 21 May 2003 the Supreme Administrative Court rejected the complaint as being inadmissible in law. It stated that under the applicable laws its scope of jurisdiction over the State authorities’ actions or inactions was limited to their duties with respect to public administration and did not encompass any control of their competence in the sphere of the issuing of normative acts.
17. On 27 June 2003 the applicant’s lodged a constitutional complaint against the Supreme Administrative Court’s decision of 21 May 2003. They challenged the constitutionality of section 16(1) (1)-(4) of the 1995 Act in so far as this provision denied them access to a court to seek compensation granted under the 1946 Act, in particular as it excluded the possibility of lodging a complaint about the inactivity of the Prime Minister, i.e. the legislative omission consisting in the failure to enact the relevant ordinance, as required by the 1946 Act.
They further asked the Constitutional Court to declare unconstitutional section 7(1) (6) of the 1946 Act, in so far as it left to the Cabinet full discretion as to the date of payment and detailed procedure for compensation and thereby deprived them of access to a court in order to seek compensation for their nationalised property. Alternatively, they asked the court to declare that 7(1) (6) of the 1946 Act was an illusory provision and as such could not be considered part of the legal order and, on the basis of this declaration, to discontinue the proceedings in this part.
They invoked, in particular, Article 2 (rule of law), Article 21 (protection of ownership), Article 45 (right of fair trial), Article 64 (right of ownership) and Article 77 (right to compensation for unlawful action of public authority) of the Constitution and Article § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.
18. On 8 September 2004 the Constitutional Court discontinued the proceedings. As regards the first limb of the complaint, it ruled so on account of the fact that section 16(1) (1)-(4) of the 1995 Act had lost its binding force. As regards section 7(1) (6) of the 1946 Act, it discontinued the proceedings holding that ruling on the merits of this part of the complaint was inadmissible in law. In particular, it held that it could not review the constitutionality of section 7(1) (6) of the 1946 Act since, pursuant to Article 79 § 1 of the Constitution, a constitutional complaint could only be directed against provisions on the basis of which the courts or administrative authorities gave a final decision on rights, freedoms or obligations of the complainant. The contested provision was not a legal basis for the final decision examined by the Constitutional Court. Accordingly, it was prevented from dealing with the merits of this part of the complaint.
19. On 20 October 2004 the applicants asked the Prime Minister to ensure the enactment of an ordinance for the proper implementation of the 1946 Act by the Cabinet or, alternatively, in case of his refusal to do so, to issue an individual, appealable administrative decision refusing to see to the enactment of that ordinance.
20. On 20 November 2004 the Prime Minister gave a decision discontinuing the proceedings, relying on section 105 § 1 of the Code of Administrative Procedure (Kodeks postępowania administracyjnego) by virtue of which an administrative authority should discontinue proceedings if, for any reason, they had become devoid of purpose. In essence, the reasoning was two-fold. First, the Prime Minister found that it was inadmissible in law to regulate the public authorities’ normative activity by means of administrative decisions. Such decisions could be given only in the context of the application of the law, whereas normative acts were created in the completely distinct sphere of lawmaking. Secondly, the public authorities’ normative activity was their exclusive and, at the same time, sovereign competence and there were no grounds for interfering with this activity because, in his view, it would infringe the fundamental constitutional principles of the division of powers and the rule of law, as well as the competences of the constitutional authorities of Poland, namely the Cabinet.
21. The applicants asked for the matter to be reconsidered. On 11 January 2005 the Prime Minister upheld the contested decision, reiterating that the issues raised by the applicants could not be addressed by an individual administrative decision.
22. The applicants appealed to the Warsaw Regional Administrative Court.
23. On 12 August 2005 the court heard, and dismissed, the appeal. It upheld the grounds given in the previous decisions, holding that an administrative decision could be issued only in an individual case concerning a specific person and his or her concrete rights or obligations but not to compel an authority to enact a normative act, which in a general and abstract way regulates the legal situation of an unqualified number of persons. It also held the following:
“It should be stressed that the Supreme Court’s case-law underlines that the Cabinet’s failure to discharge its duty arising from its competence to enact an ordinance ensuring the proper implementation of a statute infringes the constitutional principles of the functioning of a democratic state ruled by law (Articles 2 and 7 of the Constitution) and, accordingly, may constitute a constitutional tort. ...
This court is of the opinion that the proper judicial protection of the applicants’ interests is secured in the provisions of the Civil Code. Article 4171 of the Code invoked in the appeal makes it possible [for them] to seek damages caused by the legislative omission of the State Treasury.”
24. The applicants lodged a cassation appeal with the Supreme Administrative Court (Naczelny Sąd Administracyjny), alleging a number of procedural shortcomings on the part of the first-instance court and the Prime Minister and a breach of Article 77 of the Constitution in that the contested decisions had prevented them from pursuing their claim for damages arising from the state authorities’ unlawful acts – most notably their failure to enact the ordinance implementing fully the 1946 Act.
On 8 November 2006 the Supreme Administrative Court dismissed the appeal as lacking any legal basis.
25. On 8 September 2003 the applicants sued the State Treasury, statio fisci the Prime Minister, before the Warsaw Regional Court (Sąd Okręgowy) for unpaid compensation for the nationalised company. They sought PLN 30,000,000 in damages, with statutory interest from 1 July 1949 until settlement, and PLN 24,000 by way of costs and expenses. They relied on Article 77 of the Constitution and Article 417 of the Civil Code as applicable on that date (see paragraphs 41-44 below).
26. On 8 June 2004 the court gave judgment in default and granted the applicants’ claims in their entirety.
27. Following the defendant’s opposition, the case was reconsidered by the Regional Court. The defendant asked the court to quash the judgment in default and to dismiss the applicants’ claims.
28. On 9 December 2004 the applicants modified their claim for payment of statutory interest, seeking payment only from 1 September 2004 until the date of settlement.
29. On 21 February 2005 the court summoned the Minister for the Treasury to take part in the proceedings as the second defendant.
30. In their pleading of 2 March 2006 the applicants altered the legal basis for their claims, stating that as those claims were based on a legislative omission on the part of the authorities consisting in their failure to enact an ordinance pursuant to section 7(4) and (6) of the 1946 Act, they should be based on Article 4171 § 4 of the Civil Code, which entered into force on 1 September 2004 (see paragraphs 42-43 below).
31. On 14 March 2006 the Regional Court quashed the judgment in default. It dismissed the applicants’ claims for PLN 30,000,000 in damages and for costs and discontinued the proceedings in respect of their claim for payment of statutory interest.
The reasoning for the judgment was in essence based on the Supreme Court’s resolution of 24 November 2005 (cited below, see paragraphs 45-47 below). It read, in so far as relevant, as follows:
“There is no dispute [between the parties] over the facts of the case ... The dispute is limited solely to [the question] whether the claims brought in this case are wellfounded in the light of the factual and legal bases relied on by the plaintiffs and to the amount of [compensation].
...
Considering the legal and factual basis invoked by the plaintiffs, their claims should be dismissed.
Section 7 of the 1946 Act, on which they rely, in its original version provided that an owner of an enterprise taken over by the State would receive compensation from the State Treasury within 1 year from the date on which a notice of final determination of the amount of compensation due had been served on him. Such compensation was to be paid in securities, although in exceptional circumstances also in cash or other values, and its amount was to be determined by special commissions. ...
Pursuant to section 7(4) and (6) the composition of the commissions, the rules for the appointment of their members, the quorum, the rules of procedure and rules for appeals against their decisions and the detailed rules for the calculation of compensation and means of its payment and depreciation of securities were to be determined by the Cabinet’s ordinance.
Despite [this] statutory authorisation, the above-mentioned ordinance (the failure to enact it, which was to be the cause of the loss sustained by the plaintiffs) has never been enacted which, in consequence, made it impossible [for the authorities] to establish the relevant commissions and to set up the procedure for the determination of the amount of compensation and its payment.
Accordingly, this legislative omission, which has been relied on by the plaintiffs as the cause of their loss, occurred in 1946 or, at the latest in 1947, assuming that in general the absence of any time-limit for the enactment (a specific action) is tantamount to a duty to enact an act implementing the law without undue delay. This opinion is supported by [the fact] that at the material time the Cabinet issued ordinances implementing other provisions of the 1946 Act. The same point of view was expressed by the Supreme Court in a resolution of 24 November 2005 ...[;] this court shares this point of view, and the applicants, when justifying their claims, have so far done the same.
The provisions of the civil law as applicable at the material time, preceding the entry into force of the Civil Code, did not provide for the State Treasury’s liability for legislative activity [or inactivity] of its agents. This situation did not change after the entry into force of the Civil Code on 1 January 1965, providing, in its Articles 417 and 418, for the State Treasury’s [tortious] liability, the scope of which did not encompass the State authorities’ legislative activity.
...
By the same token, it cannot be assumed that the defendant’s civil liability for the consequences of the so-called legislative omission is based on Article 417, which, in contrast to what the plaintiffs tried to plead, does not embody the State’s legislative activity.
This situation did not change radically on 17 October 1997, the date of entry into force of the new Constitution which, in Article 77 § 1, proclaimed the right to compensation for any harm caused by an act of a public authority in breach of the law and the possibility of its direct application. While the above-mentioned provision of the Constitution undoubtedly refers to civil liability including the State authorities’ normative activity ..., this liability cannot be taken in the abstract from regulations concerning civil claims laid down in the Civil Code and specific statutes and, accordingly, cannot be an autonomous legal basis for this kind of claims.
...
In view of the foregoing, the plaintiffs’ claims cannot be justified under Article 77 § 1 of the Constitution.
...
Article 4171 of the Civil Code, introduced ... on 1 September 2004 and invoked by the plaintiffs could be a legal basis for their claim.
This provision includes the defendant’s civil liability for the consequences of the socalled legislative omission in case of a failure to enact a normative act, where there is a statutory duty to do so. However, pursuant to section 5 of [the relevant law amending the Civil Code], setting out the temporal scope of the operation of [Article 4171], excludes the possibility of its application to events and situations that occurred before the date of its entry into force, requiring [the courts] to apply in that regard the hitherto applicable provisions, including Article 417, which was repealed by that law.
It should therefore be concluded that both Article 417 and Article 4171 of the Civil Code read in conjunction with Article 77 § 1 of the Constitution cannot be legal bases for granting the plaintiffs’ claims.
...”
32. The applicants appealed to the Warsaw Court of Appeal (Sąd Apelacyjny). On 5 December 2006 the appeal was dismissed.
33. On 8 April 2009 the applicants sued the State Treasury staciones fisci the Minister for Economy and the Minister for Infrastructure before the Warsaw Regional Court, seeking damages arising from the nationalisation of the limestone plant. They sought 26,000,000 Polish zlotys (PLN) each and the costs of the proceedings. Later, they limited the claim to PLN 16,756,228.50, an amount corresponding to the damage as determined by experts appointed by the court. This sum included PLN 12,634,426.05 for damage caused by exploitation of the limestone deposits by the State and PLN 3,895,607.25 for damage caused by nationalisation of the enterprise’s buildings, machines and technical equipment.
34. On 20 June 2011 the Regional Court, relying on Article 160 §§ 1 and 2 of the CAP granted the applicants’ claim in its entirety. It awarded each applicant PLN 8,378,114.25 (i.e. the whole amount jointly claimed) with interest from 21 June 2011 and PLN 2,228 for the costs incurred. The court held that there was no doubt that the applicants had sustained loss that should be compensated by the State. That loss consisted in the value of the plant on the date of its nationalisation, the value of the limestone deposits exploited by the State and the costs involved in the rehabilitation of the nationalised land.
35. The State Treasury appealed against the judgment
36. The case was heard by the Warsaw Court of Appeal on 28 February 2012. The court fully upheld the Regional Court’s findings of fact and law and its assessment of evidence. It gave partial judgment. It rejected the defendant’s appeal in so far as it concerned compensation for the value of the enterprise’s buildings, machines and technical equipment and upheld the award in this respect, granting each applicant PLN 1,947,803.62 (i.e. a total sum of PLN 3,895,607.24). This ruling is final.
The Court of Appeal postponed the examination of the remainder of the claim (compensation amounting to PLN 12,634,426.05 for damage caused by exploitation of the limestone deposits by the State). In that respect, it decided to obtain a fresh expert report in order to determine the value of the loss actually sustained. The expert was appointed on 12 July 2012. The proceedings are pending.
37. Following the establishment of the communist regime in Poland nearly all branches of industry, as well as banking, insurance, transport and commercial companies were taken over by the State under the 1946 Act which, in its section 1, stated the purposes of nationalisation as follows:
“ In order to ensure the planned rebuilding of the state economy, the economic sovereignty of the State and to foster the general well-being, the State shall take over ownership of enterprises on the conditions laid down in this law.”
Pursuant to section 2(1), only those industrial, mining, transport, banking, insurance and commercial enterprises that belonged to the Third Reich and the former Free City of Gdańsk, their citizens (except for those of Polish or other nationality who had been persecuted by the Germans), German and Gdańsk legal persons (except for those set up under public law), companies controlled by German or Gdańsk citizens or administration or those owned by persons who had defected to the enemy were to be taken over by the State without payment of compensation.
38. Section 3(1) of the 1946 Act (as amended) states that the owners of the remaining enterprises were to be compensated for their nationalised property. That provision reads, in so far as relevant, as follows:
“1. The State shall compensate [the owners] for taking over ownership of the following:
A. Mining and industrial enterprises in the following sectors of State economy:
1) mines and mining leases subject to mining law;
2) oil and gas industry, including mines, refineries, gasoline production and other processing plants, gas pipes and synthetic fuel industry;
3) companies that generate, process, transmit or distribute electricity ...;
4) companies that generate, process, transmit or distribute gas ...;
5) water supply companies serving more than one municipality ...;
6) steelworks and non-ferrous metals smelting plants;
7) armaments, aviation and explosives industry;
8) coking plants;
9) sugar factories and refineries;
10) industrial distilleries, spirit refineries and vodka production plants;
11) breweries with an annual output exceeding 15,000 hectolitres;
12) yeast production plants;
13) grain plants with a daily output exceeding 15 tons of grain ...;
14) oil plants with an annual output exceeding 500 tons and all refineries of edible fats;
15) cold stores;
16) large and medium textile industry;
17) printing industry and printing houses;
...
B. Industrial enterprises not listed in subsection “A” if they are capable of employing in the production more than 50 persons on one shift.
...
C.
1) Transport enterprises (standard gauge and narrow-gauge railways, electric railways and aviation transport enterprises);
2) communication enterprises (telephone, telegraph and radio enterprises).
39. Section 7 lays down general principles for compensation to be paid for nationalised property. It states, in so far as relevant, as follows:
“1. The owner of an enterprise whose ownership has been taken over by the State (section 3) shall receive compensation from the State Treasury within one year from the date on which a notice of final determination of the amount of compensation due has been served on him.
2. Such compensation shall in principle be paid in securities; however, in exceptional and economically justified cases it may also be paid in cash or other values.
3. The amount of compensation due shall be determined by special commissions. The persons concerned shall have the right to participate in proceedings before those commissions. If need be and in any case if so requested by the persons concerned, the commission shall appoint appropriate experts.
4. The composition of the commissions, the rules for the appointment of their members, the quorum, the rules of procedure before the commissions and rules for appeals against their decisions shall be determined by an ordinance issued by the Cabinet.
5. The following factors shall be taken into account in determining compensation:
a) general deterioration of the value of State property;
b) net value of the corporate property on the date of nationalisation;
c) deterioration of the value of the enterprise cause by war losses or losses incurred by the enterprise in connection with the war, occupation in the period from 1 September 1939 to the date of nationalisation;
d) value of expenditures made after 1 September 1939;
e) special circumstances affecting the value of the enterprise (concession terms, licenses etc.).
6. A Cabinet’s ordinance shall determine detailed rules governing the calculation of compensation, assessment of the circumstances listed in subsection 5 and means of payment of compensation (subsection 2) and depreciation of securities.”
40. Pursuant to section 10, the Cabinet and the relevant Ministers shall be entrusted with the implementation of the 1946 Act. However, since 5 February 1946, the date of entry into force of the 1946 Act, until the present day the Cabinet has not yet issued an ordinance on the organisation of the compensation commissions and determination of compensation referred to in section 7(4) and (6).
41. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort.
In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:
“1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.”
42. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. The relevant amendments were in essence aimed at enlarging the scope of the State Treasury’s liability in tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and provision being made for the State’s tortious liability for failure to enact legislation, a concept known as “legislative omission” (zaniechanie legislacyjne).
43. Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows:
“4. If damage has been caused by failure to enact a law [akt normatywny] where there is a statutory duty to do so, the incompatibility of the failure to enact that law shall be established by the court dealing with the claim for damages.”
However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 applies to all events and legal situations that subsisted before that date.
44. The concept of the State’s civil liability for a constitutional tort was introduced into the Polish legal order on 17 October 1997, the date of entry into force of the 1997 Polish Constitution.
Article 77 § 1 of the Constitution states, in so far as relevant, as follows:
“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.”
45. In its resolution of 24 November 2005 (“the 2005 Resolution”), the Supreme Court (Sąd Najwyższy), sitting as a bench of three judges, dealt with the following legal questions submitted to it by the Warsaw Court of Appeal (Sąd Apelacyjny):
“ Is the State Treasury liable for damage caused by failure to enact a law [akt normatywny] if the duty to enact that law, laid down in section 7(4) and (6) of [the 1946 Act] was not fulfilled until the date of entry into force of [the 2004 Amendment],
and, if so,
When this duty should have been performed and whether damages for failure to enact the above law corresponds to unreceived compensation for the enterprise nationalised by the State, determined in accordance with the principles laid down in section 7(2) and (5) of [the 1946 Act]?”.
The question arose in the context of a case brought by a certain E.K., who sought damages for the nationalisation of her family’s printing house and, as one of the basis for her claim, invoked Article 4171 of the Civil Code, relying on the State’s legislative omission consisting in its failure to issue the relevant ordinance.
46. The Supreme Court’s answer in the operative part of the resolution reads:
“Until the date of entry into force of [the 2004 Amendment] the Cabinet’s failure to issue an ordinance foreseen in section 7(4) and (6) of [the 1946 Act] did not constitute a basis for a claim by an owner of the nationalised enterprise for damages arising from [nationalisation].”
47. The resolution contains extensive reasoning, the main thrust of which reads as follows:
“[As regards the time-frame for the issue of the ordinance]. The determination of the beginning of that situation carries with it a certain element of arbitrariness since [the 1946 Act] does not lay down any term within which the ordinance referred to in section [7] (4) and (6) should be issued. Assuming that in general the absence of a term is tantamount to a duty to enact a law without undue delay, it can be considered that the discharge of the statutory authorisation, assuming the existence of willingness of the authorised body (the Cabinet) should have taken place in 1946 or in 1947 at the latest. This is supported by the fact that the Cabinet issued ordinances implementing other provisions (including section 2(7) of the Act, a fundamental provision for the interest of the State).
[As regards the State’s civil liability for legislative omission], ... it should be concluded that before the entry into force of the 1997 Constitution the State had not been liable under civil law for the consequences of its legislative inactivity. ...
17 October 1997, marking the entry into force of the Constitution is the relevant date as its constitutes the beginning of the existence in the legal order of, inter alia, Article 77 § 1 of the Constitution, proclaiming the right of “everyone” to compensation for any harm done to him by any act of a public authority in breach of the law ....
Assuming that Article 77 § 1 does not contain a provision making it possible to draw from it a direct basis for a claim for damages for the legislature’s inactivity, it must be said that the rules for the State’s liability in the sphere of law-making should be established by means of an ordinary statute, determining in a more detailed manner than Article 77 §1 premises for an effective claim. ...
Article 4171 § 4 of the Civil Code, as introduced by [the 2004 Amendment] satisfies the requirement of detailed premises. The relevant temporal consequences have been clearly set out in its section 5, evidently indicating the prospective operation of Article 4171 § 4 of the Civil Code. A formulation laying down a non-retroactive character of the provision is telling in that it refers to “events and legal situation that subsisted before its entry into force” ... In consequence, the assessment of the effects of legislative omission subsisting before 1 September 2004 was governed by [earlier provisions]. The relevant Article 417, in its version before the amendment, did not include legislative omission as it was based on a completely different premise, namely, the absence of the State’s civil liability for the legislature’s acts. ... “
48. On 5 December 2007 the Supreme Court, sitting as a bench of three judges, dealt with a cassation appeal (kasacja) lodged by Lubelska Fabryka Maszyn i Narzędzi Rolniczych “Plon”, a limited liability company which was at that time subject to a winding-up procedure. The appellant contested the judgment of the Warsaw Court of Appeal of 2 February 2007, rejecting its appeal (apelacja) against the judgment of the Warsaw Regional Court of 30 May 2006 whereby its claim for damages arising from the State’s failure to issue the relevant ordinance, pursuant to section 7(2) and (5) of the 1946 Act, had been dismissed. The claim was based on Article 77 of the Constitution and Articles 417 and 4171 § 4 of the Civil Code.
In dismissing the cassation appeal, the Supreme Court essentially reiterated the grounds stated in the 2005 Resolution (see paragraph 25 above), stressing that the impugned legislative omission occurred in 1946 or, at the latest in 1947 and since then had continued. However, Article 77 § 1 of the Constitution could not be considered a legal basis for a claim deriving from an “omission” by public authorities since that provision clearly covered only their “acts”. The provision of Article 4171, enabling a plaintiff to seek damages for legislative omission, had been introduced only on 1 September 2004 by virtue of the 2004 Amendment. The terms of section 5 of the Amendment 2004 were unambiguous: Article 4171 of the Civil Code did not apply to events and situations that had subsisted before its entry into force. Consequently, its operation was excluded in respect of legislative omissions that originated in facts that had occurred earlier, even if this state of affairs continually existed until the present day.
49. On 13 June 2011 the Constitutional Court (Trybunał Konstytucyjny) heard a constitutional complaint lodged by a company Elektrownia w Kielcach spółka akcyjna, challenging the constitutionality of section 5 of the 2004 Amendment in so far as it excluded the application of Article 4171 of the Civil Code to situations that had subsisted before the entry into force of that Amendment, i.e. 1 September 2004 (see also paragraphs 20-26 above). The claimant invoked, in particular, Article 77 § 1 of (right to compensation for unlawful action of public authority) read in conjunction with Article 2 (rule of law), Article 64 §§ 1 and 2 (right of ownership) read in conjunction with Article 21 §§ 1 and 2 (protection of ownership) and Article 32 § 1 (equality before the law) and Article 45 § 1 (right of fair trial) of the Constitution.
Before lodging the complaint, the company, which had been nationalised under the 1946 Act, unsuccessfully sought compensation for the Prime Minister’s legislative inactivity in that he had failed to enact an ordinance on rules for compensation as required by the 1946 Act. On 4 April 2008 the claim was finally rejected by the Warsaw Court of Appeal on the grounds stated in the 2005 Resolution (see paragraphs 23-25 above).
The Constitutional Court’s decision (no. SK 26/09), in its relevant part, reads as follows:
“4.7. ... Consequently, in the light of the provisions of the Constitution it is difficult to assume that non-fulfilment of the duty to enact an ordinance on compensation for nationalised property derived from [the 1946 Act] amounted to “[an] act of a public authority in breach of the law” linked with the State’s liability for [constitutional] tort under the Constitution. Even assuming that the state of legislative omission still persists, it should at the same time be concluded that the duty is non-enforceable. Thus, it is evident that on the basis of the applicable laws only a statute could regulate compensation for the claimant’s nationalised property. ... Accordingly, the Constitutional Court considers that the assumption that a legislative omission “in breach of the law” still continues is unwarranted, in particular after the entry into force of the Constitution, in the light of its standards. ... In the light of the constitutional standards as applicable at present it is difficult to accept that there is any legal force attached to the duty imposed on the Cabinet by section 7 of the 1946 Act.
50. Article 156 § 1 of the Code of Administrative Procedure (“the CAP”) (Kodeks postępowania administracyjnego), which sets out grounds on which a final administrative decision is subject to annulment, states:
“1. A public administration authority shall declare a decision null and void if:
1) it has been issued in breach of the rules governing competence;
2) it has been issued without a legal basis or in flagrant breach of the law;
3) concerns a case already decided by means of another final decision;
4) it has been addressed to a person who is not a party to the case;
5) it was unenforceable on the date of its issuance and its unenforceability is of a permanent nature;
6) it would give rise to a punishable offence in the event that it has been enforced;
7) it has a flaw making it null and void by the force of law.
There is no time-limit for a party’s request to have an administrative decision declared null and void under Article 156 § 1.
However, there are situations where, even if certain grounds listed in Article 156 § 1 exist, the lapse of time or irreversible effects of the contested decision have consequences for the formula used in a decision given in the annulment procedure. Article 156 § 2 provides for the following exceptions:
“ A decision shall not be declared null and void on the grounds listed in paragraph 1 (1), (3), (4) and (7) if 10 years have expired from the date of its service or promulgation, as well as if the decision has produced irreversible legal effects.”
Article 158 reads as follows:
“1. A ruling on annulment of a decision shall be given by means of a decision.
2. If it is impossible to declare a decision null and void because of the circumstances referred to in Article 156 § 2, a public administration authority shall only declare that the contested decision has been issued contrary to the law and indicate circumstances because of which it has not declared the decision null and void.”
For the purposes of compensation, the effects of declaring the original administrative decision “null and void” or “issued contrary to the law” are the same.
51. Article 160 set out principles for compensation for loss caused by the issuance of an administrative decision subsequently annulled on the grounds listed in Article 156 § 1.
This provision was repealed by the 2004 Amendment with effect from 1 September 2004 (see also paragraphs 42-43 above) and replaced by new Article 4171 § 2 of the Civil Code. However, under section 5 of the 2004 Amendment, which sets out transitional rules, Article 160, in the version applicable on the repeal date, still applies to “events and legal situations” that subsisted before the entry into force of the 2004 Amendment.
Article 160, in the version applicable on the relevant date, read as follows:
“1. A party who has suffered a loss on account of the issuance of a decision in breach of Article 156 § 1 or on account of annulment of such a decision shall have a claim for compensation for actual damage, unless he has culpably caused the circumstances mentioned in this provision.
2. The provisions of the Civil Code, except for Article 418 [provision repealed], shall apply to [such] compensation.
3. Compensation is due from an authority that issued a decision in breach of Article 156 § 1, unless the other party to the proceedings concerning the decision culpably caused the circumstances mentioned in this provision; in the latter case a claim for compensation shall be directed against the culpable party.
4. A public administration authority that has declared a decision null and void or declared, pursuant to Article 158 § 2, that it has been issued contrary to the law shall rule on compensation due from the authority referred to in § 1. The vindication of compensation from a person who has culpably caused the circumstances mentioned in Article 156 §1, shall be effected before a court of law.
5. A party who is not satisfied with compensation granted by a public administration authority referred to in § 4, may lodge a claim with a court of law within 30 days from the date of service of a decision given on that matter.
6. A claim for compensation shall be time-barred after 3 years from the date on which has become final the decision declaring null and void the decision issued in breach of Article 156 § 1 or decision whereby an authority has declared, pursuant to Article 158 § 2, that the contested decision has been issued in breach of Article 156 § 1.”
52. On 30 March 2011 the Civil Chamber of the Supreme Court, sitting in plenary, gave a resolution (no. III CZP 112/10) on the application of Article 160 of the CAP and rules regarding compensation. The resolution was given in response to legal questions submitted by the First President of the Supreme Court in connection with certain problems and divergences arising in judicial practice, in particular in respect of the temporal effects of Article 160 as determined in section 5 of the 2004 Amendment, the application of Article 4171 § 2 of the Civil Code which replaced Article 160 (see paragraphs 42-43 and 51 above) and rules for adjudicating compensation.
The resolution contains an extensive reasoning which, in so far as relevant, may be summarised as follows:
1) Article 160 §§ 1,2,3 and 6 of the CAP applies to all claims for damages arising from an issuance of a final administrative decision given before 1 September 2004, which has been declared null and void or has been declared as being issued in breach of Article 156 § 1 of the CAP. In contrast, paragraphs 4 and 5 of Article 160, setting out the procedure for vindicating such claims, should be considered as no longer applicable. Consequently, a party seeking compensation under this provision should file an action directly with a civil court.
2) Where an annulled administrative decision has been given before the entry into force of the Constitution (17 October 1997), compensation defined in Article 160 of the CAP shall not include loss of profits sustained in consequence of its issuance, even if such loss has occurred after this date.
53. In the years 1990-2005 Parliament dealt with 11 bills on reprivatisation, restitution and compensation for property taken over by the communist authorities under nationalisation laws passed in 19441962. None of them was successfully enacted mostly because fresh elections were called and the work on them had to be discontinued. In the case of the 1999 bill on the restitution of immovable property and certain kinds of movable property taken from natural persons by the State or by the Warsaw Municipality, and on compensation (Projekt ustawy o reprywatyzacji nieruchomości i niektórych ruchomości osób fizycznych przejętych przez Państwo lub gminę miasta stołecznego Warszawy oraz o rekompensatach – “the Restitution Bill 1999”) the relevant Act of Parliament never entered into force because it had been vetoed by the President of Poland.
Each of those bills, although they differed in specific modalities, contained provisions for compensation for nationalisation of property under the 1946 Act.
54. In 2007 the Polish Parliament started the first reading of the Government’s bill on compensation for property or other assets taken over by the State (projekt ustawy o rekompensatach za przejęte przez państwo nieruchomosci oraz inne składniki mienia) (“the 2006 Compensation Bill”). In general, compensation claims were to be subject to a statutory ceiling of 15% of the value of the original property taken over by the State. The claims of the owners of property nationalised under the provisions of the 1946 Act were included in the list of claimants entitled to compensation. The work on the 2006 Compensation Bill was discontinued in September 2007 since snap parliamentary elections were called following the collapse of the government coalition.
55. In 2008 the new Government started preparatory work on fresh restitution legislation, i.e. the “Bill on pecuniary benefits to be granted to some persons who were subject to nationalisation procedures” (projekt ustawy o świadczeniach pieniężnych przyznawanych niektórym osobom, których dotyczyły procesy nacjonalizacji) (“the 2008 Compensation Bill”).
56. The 2008 Compensation Bill provided for no restitution of nationalised properties and was based on the principle of limited compensation, corresponding to a certain – not stipulated in the bill but to be determined in the Minister for Treasury’s future ordinance – percentage of the value of the property in question on the date of its nationalisation.
57. In the Minster for Finance’s report on the assessment of the budgetary impact of the implementation of the 2008 Compensation Bill (drawn up in 2008) the total value of the claims to be covered by the 2008 Compensation Bill was estimated at PLN 100,000,000,000.
It was expected that some 80,000 applications for compensation will be submitted under the provisions of the new legislation. The process of the realisation of cash payments was to be spread over the period of 15 years and instalments were to be indexed each year in accordance with the consumer price index.
The entry into force of the bill was tentatively foreseen for 2012.
58. In February 2010 the Minister for Finance was asked to make an analysis of the consequences of the implementation of the 2008 Compensation Bill.
59. On 5 March 2010 the Minister for Finance submitted a report stating that if the bill entered into force in 2012, there would be an abrupt increase in the public debt by PLN 18,000,000,000 which would correspond to 1.001.10% of the Gross National Product (GNP). In the circumstances, the allocation of PLN 20,000,000,000 for securing nationalisation claims might result in Poland’s exceeding the permissible limits of the national debt in relation to GNP as set by the European Union.
60. In March 2011 the Minister for Treasury issued a press release on the Ministry’s website, informing the public that the Government had decided not to submit the 2008 Compensation Bill to Parliament. That statement gives the following explanation:
“In view of the considerable savings that have been made in recent years, connected with the global financial crisis in many sectors of our social and economic life and the large financial burden resulting from the planned legislation, in the present economic situation, [the 2008 Compensation Bill] cannot be enacted.”


ITEMID: 001-109579
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF SITAROPOULOS AND GIAKOUMOPOULOS v. GREECE
IMPORTANCE: 1
CONCLUSION: No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Free expression of opinion of people;Vote)
JUDGES: Anatoly Kovler;Angelika Nußberger;Ann Power-Forde;Christos Rozakis;Dean Spielmann;Egbert Myjer;Elisabeth Steiner;Flogaitis;Françoise Tulkens;Ineta Ziemele;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Luis López Guerra;Nicolas Bratza;Nona Tsotsoria;Spyridon Flogaitis;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 10. The applicants were born in 1967 and 1958 respectively and live in Strasbourg. They are officials of the Council of Europe.
11. By Presidential Decree no. 154/2007 of 18 August 2007, the Greek Parliament was dissolved and a general election was called for 16 September 2007.
12. In a faxed letter of 10 September 2007 to the Greek ambassador in France, the applicants, who are permanently resident in France, expressed the wish to exercise their voting rights in France in the elections to be held on 16 September 2007.
13. On 12 September 2007 the ambassador, relying on the instructions and information provided by the Ministry of the Interior, replied as follows.
“[The Greek State] confirms its wish – frequently expressed at the institutional level – to enable Greek citizens resident abroad to vote from their place of residence. However, it is clear that this necessitates statutory rules which do not currently exist. In fact, such rules cannot be introduced by a simple administrative decision, as special measures are required for the setting-up of polling stations in embassies and consulates ... In the light of the above and despite the wish expressed by the State, your request concerning the forthcoming elections cannot be granted for objective reasons.”
14. The general election took place on 16 September 2007. The applicants, who did not travel to Greece, did not exercise their right to vote.
15. The relevant provisions of the Constitution read as follows.
“ ...
2. Popular sovereignty shall be the foundation of government.
3. All powers shall derive from the people and exist for the people and the nation; they shall be exercised as specified by the Constitution.”
“1. The number of members of parliament shall be defined by law. It shall not be below two hundred or above three hundred.
2. The members of parliament shall represent the nation.
3. The members of parliament shall be elected through direct universal suffrage and by secret ballot, by those citizens who have the right to vote, as specified by law. The law shall not curtail citizens’ right to vote except in cases where the statutory minimum age has not been attained, in cases of legal incapacity or in connection with a final criminal conviction for certain offences.
4. Parliamentary elections shall be held simultaneously throughout the country. The conditions governing the exercise of the right to vote by persons outside the country may be specified by statute.
5. The exercise of the right to vote shall be mandatory. Exceptions and criminal sanctions shall be specified in each case by law.”
“1. The electoral system and constituencies shall be specified by a law which will apply to the elections immediately following the forthcoming elections unless an explicit provision, adopted by a majority of two-thirds of the total number of members of parliament, stipulates that it is to apply as of the forthcoming elections.
2. The number of members of parliament elected in each constituency shall be specified by presidential decree on the basis of the population of the constituency for legal purposes, derived, according to the latest census, from the number of persons registered on the relevant municipal rolls, as provided for by law. The results of the census for this purpose shall be those published on the basis of the data held by the relevant department one year after the last day of the census.
3. Part of the Parliament, comprising not more than one-twentieth of the total number of its members, may be elected on a uniform nationwide basis in proportion to the total votes won by each party throughout the country, as specified by law.”
“1. The State must be attentive to the situation of emigrant Greeks and to the maintenance of their ties with the homeland. The State shall also attend to the education and the social and professional advancement of Greeks working outside the State.
2. The law shall lay down arrangements relating to the organisation, operation and competences of the World Council of Hellenes Abroad, whose mission is to allow the full expression of Hellenism worldwide.”
The second paragraph of Article 108 was added during the 2001 revision of the Constitution.
16. In 2001, Article 51 § 4 was amended as follows:
“Parliamentary elections shall be held simultaneously throughout the country. The conditions governing the exercise of the right to vote by persons living outside the country may be specified by statute, adopted by a majority of two-thirds of the total number of members of parliament. Concerning such persons, the principle of holding elections simultaneously does not rule out the exercise of their right to vote by postal vote or other appropriate means, provided that the counting of votes and the announcement of the results are carried out at the same time as within the country.”
17. At the time of the parliamentary elections in issue, Presidential Decree no. 96/2007, which was the electoral legislation then in force, provided as follows.
“1. Any Greek national aged 18 or over shall be entitled to vote. ...”
“The following persons shall lose the right to vote:
(a) persons who have been placed under guardianship, in accordance with the provisions of the Civil Code;
(b) persons whose final conviction for one of the offences provided for in the Criminal Code or the Military Criminal Code is accompanied by a measure disqualifying them from voting for the duration of their sentence.”
“1. The right to vote in a constituency shall be reserved to those persons registered on the electoral roll of a municipality or local authority area within that constituency.
2. The exercise of the right to vote shall be mandatory.”
18. The report on this bill placed before Parliament by the Ministers of the Interior, Justice and the Economy on 19 February 2009 indicated that the purpose of the bill was to fulfil “one of the government’s major historical obligations, one which undeniably reinforces Greek expatriates’ ties with the homeland”. The report stated that voting rights for Greek nationals living abroad arose out of both Article 108 and Article 51 § 4 of the Constitution. It pointed out in particular that Article 108 “affords Greek expatriates a ‘social right’. This provision obliges the Greek State to take all necessary measures to maintain Greek expatriates’ ties with Greece, to ensure that they have access to Greek education and to make provision, as a matter of State duty, for the social and professional advancement of Greeks working outside Greece. Regulating the conditions for the exercise by Greek expatriates of their right to vote in Greek parliamentary elections will undeniably contribute to real ties being forged between Greek expatriates and their homeland.” Moving on to the constitutional provision on this specific subject, namely Article 51 § 4, the report characterised the statute to which that Article referred as a law implementing the Constitution. Lastly, the report considered that “in these times of globalisation, it is self-evident that Greek expatriates should have a decisive say in the development of their own country”.
19. The Scientific Council (Επιστημονικό Συμβούλιο) of Parliament is a consultative body reporting to the Speaker of Parliament. It comprises ten members, including professors of law, political science, economics, statistics and information technology, and an expert in international relations. It produced a report dated 31 March 2009 on the above-mentioned bill. The report noted that, in the past, some legal authorities had argued that Article 51 § 4 of the Constitution imposed upon the legislature an obligation to permit expatriate Greeks to exercise the right to vote from outside Greece. However, referring to other legal authorities and to the preparatory work for Article 51 § 4 of the Constitution, it asserted that it was an option rather than a duty for the legislature to permit the exercise of voting rights from abroad. It also took the view that the optional nature of the above-mentioned provision of the Constitution had not been affected by the 2001 constitutional revision.
20. On 7 April 2009 the bill was rejected by Parliament since it failed to secure the majority of two-thirds of the total number of members of parliament required under Article 51 § 4 of the Constitution. The members of parliament, especially those on the opposition benches, referred in particular to the number of Greek citizens living abroad compared with the numbers resident in Greece, and to the implications this would have for the composition of the legislature.
21. The relevant texts adopted by the Parliamentary Assembly of the Council of Europe read as follows.
“...
2. In accordance with the opinion of the European Commission for Democracy through Law (Venice Commission) adopted in December 2004, [the Parliamentary Assembly] ... invites the member and observer States of the Organisation to reconsider all existing restrictions to electoral rights and to abolish all those that are no longer necessary and proportionate in pursuit of a legitimate aim.
3. The Assembly considers that, as a rule, priority should be given to granting effective, free and equal electoral rights to the highest possible number of citizens, without regard to their ethnic origin, health, status as members of the military or criminal record. Due regard should be given to the voting rights of citizens living abroad.
...
7. Given the importance of the right to vote in a democratic society, the member countries of the Council of Europe should enable their citizens living abroad to vote during national elections bearing in mind the complexity of different electoral systems. They should take appropriate measures to facilitate the exercise of such voting rights as much as possible, in particular by considering absentee (postal), consular or e-voting, consistent with Recommendation Rec(2004)11 of the Committee of Ministers to member States on legal, operational and technical standards for evoting. Member States should cooperate with one another for this purpose and refrain from placing unnecessary obstacles in the path of the effective exercise of the voting rights of foreign nationals residing on their territories.
...
11. The Assembly therefore invites:
i. the Council of Europe member and observer States concerned to:
...
b. grant electoral rights to all their citizens (nationals), without imposing residency requirements;
c. facilitate the exercise of expatriates’ electoral rights by providing for absentee voting procedures (postal and/or consular voting) and considering the introduction of e-voting consistent with Recommendation Rec(2004)11 of the Committee of Ministers and to cooperate with one another to this end;
...”
“1. Referring to its Resolution 1459 (2005) on the abolition of restrictions on the right to vote, the Parliamentary Assembly calls upon the Committee of Ministers to:
i. appeal to member and observer States to:
a. sign and ratify the 1992 Council of Europe Convention on the Participation of Foreigners in Public Life at Local Level (ETS No. 144) and to grant active and passive electoral rights in local elections to all legal residents; and
b. reconsider existing restrictions on electoral rights of prisoners and members of the military, with a view to abolishing all those that are no longer necessary and proportionate in pursuit of a legitimate aim;
ii. invite the competent services of the Council of Europe, in particular the European Commission for Democracy through Law (Venice Commission) and its Council for Democratic Elections, to develop their activities aimed at improving the conditions for the effective exercise of election rights by groups facing special difficulties, such as expatriates, prison inmates, persons who have been convicted of a criminal offence, residents of nursing homes, soldiers or nomadic groups;
iii. review existing instruments with a view to assessing the possible need for a Council of Europe convention to improve international cooperation with a view to facilitating the exercise of electoral rights of expatriates.”
22. The Code states that “the right to vote and to be elected may be accorded to citizens residing abroad” (point I.1.1.c.v.). The explanatory report makes the following indication in this regard:
“... the right to vote and/or the right to stand for election may be subject to residence requirements, residence in this case meaning habitual residence. ... Conversely, quite a few States grant their nationals living abroad the right to vote, and even to be elected. This practice can lead to abuse in some special cases, e.g. where nationality is granted on an ethnic basis.”
23. The other relevant parts of the Code provide:
“...
3.2 Freedom of voters to express their wishes and action to combat electoral fraud
i. voting procedures must be simple;
ii. voters should always have the possibility of voting in a polling station. Other means of voting are acceptable under the following conditions:
iii. postal voting should be allowed only where the postal service is safe and reliable; the right to vote using postal votes may be confined to people who are in hospital or imprisoned or to persons with reduced mobility or to electors residing abroad; fraud and intimidation must not be possible;
iv. electronic voting should be used only if it is safe and reliable; in particular, voters should be able to obtain a confirmation of their votes and to correct them, if necessary, respecting secret suffrage; the system must be transparent;
v. very strict rules must apply to voting by proxy; the number of proxies a single voter may hold must be limited;
...”
24. The report notes, among other things, the following:
“Voting rights for citizens abroad
57. External voting rights, e.g. granting nationals living abroad the right to vote, are a relatively new phenomenon. Even in long-established democracies, citizens living in foreign countries were not given voting rights until the 1980s (e.g. Federal Republic of Germany, United Kingdom) or the 1990s (e.g., Canada, Japan). In the meantime, however, many emerging or new democracies in Europe have introduced legal provisions for external voting (out-of-country voting, overseas voting). Although it is yet not common in Europe, the introduction of external voting rights might be considered, if not yet present. However, safeguards must be implemented to ensure the integrity of the vote ...
...
152. Postal voting is permitted in several established democracies in western Europe, e.g. Germany, Ireland, Spain, Switzerland ... It was also used, for example, in Bosnia and Herzegovina and the Kosovo in order to ensure maximum inclusiveness of the election process (CG/BUR (11) 74). However, it should be allowed only if the postal service is secure and reliable. Each individual case must be assessed as to whether fraud and manipulation are likely to occur with postal voting.
...”
25. The conclusions of this report read as follows.
“91. National practices regarding the right to vote of citizens living abroad and its exercise are far from uniform in Europe.
92. However, developments in legislation, such as the judgment delivered recently by the European Court of Human Rights in a case concerning Greece, which is not yet final, point to a favourable trend in out-of-country voting, in national elections at least, as regards citizens who have maintained ties with their country of origin.
93. That is true at least of persons who are temporarily out of the country. But definitions of the temporary nature of a stay abroad vary greatly and if this criterion is adopted, it should be clarified.
94. Distinctions should also be drawn according to the type of elections. National, single-constituency elections are easier to open up to citizens resident abroad, while local elections are generally closed to them, particularly on account of their tenuous link with local politics.
95. The proportions of citizens living out of the country may also vary greatly from one country to another. When there are a large number of them, they may have a decisive impact on the outcome of the election, which may justify the implementation of specific measures.
96. It is perfectly legitimate to require voters living abroad to register to be able to vote, even if registration is automatic for residents.
97. The obligation to vote in an embassy or consulate may in practice severely restrict the right to vote of citizens living abroad. This restriction may be justified on the grounds that the other means of voting (postal vote, proxy voting, e-voting) are not always reliable.
98. To sum up, while the denial of the right to vote to citizens living abroad or the placing of limits on that right constitutes a restriction of the principle of universal suffrage, the Commission does not consider at this stage that the principles of the European electoral heritage require the introduction of such a right.
99. Although the introduction of the right to vote for citizens who live abroad is not required by the principles of the European electoral heritage, the European Commission for Democracy through Law suggests that States, in view of citizens’ European mobility, and in accordance with the particular situation of certain States, adopt a positive approach to the right to vote of citizens living abroad, since this right fosters the development of national and European citizenship.”
26. The right to vote is enshrined in Article 25 of the Covenant, the relevant parts of which read as follows:
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:
...
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
...”
During the drafting of the General Comment on Article 25 of the Covenant, which was published on 12 July 1996 by the Human Rights Committee, a proposal was made calling on States to enable their nationals residing overseas to make use of absentee postal-voting systems where such systems were available. However, as the Human Rights Committee could not agree on the proposal, it was not included in the General Comment.
27. Article 23 of the said Convention provides as follows:
“1. Every citizen shall enjoy the following rights and opportunities:
a. to take part in the conduct of public affairs, directly or through freely chosen representatives;
b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and
c. to have access, under general conditions of equality, to the public service of his country.
2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.”
28. The right to vote under Article 23 is not absolute and may be subject to restrictions on the grounds expressly laid down in the second paragraph, which include “residence”. However, not every restriction of the right to vote based on residence is justified.
29. In the case of Statehood Solidarity Committee v. United States (Case 11.204, Report no. 98/03 of 29 December 2003), the Inter-American Commission on Human Rights held that the approach to the interpretation and application of the right guaranteed under Article 23 of the American Convention was consistent with the case-law of the other international systems of human rights protection whose treaties provided similar guarantees. It referred in that regard to the case-law of the European Court of Human Rights and the United Nations Human Rights Committee:
“93. ... Like the European Court and this Commission, the UN Human Rights Committee has recognized that the rights protected under Article 25 of the ICCPR [International Covenant on Civil and Political Rights] are not absolute, but that any conditions that apply to the right to political participation protected by Article 25 should be based on ‘objective and reasonable criteria’. The Committee has also found that in light of the fundamental principle of proportionality, greater restrictions on political rights require a specific justification.
...”
30. Article 13 § 1 of this Charter is worded as follows:
“Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.”
31. Taking the view that this provision was similar in substance to Article 25 of the International Covenant, the African Commission on Human and Peoples’ Rights interpreted Article 13 of the Charter in the light of the Human Rights Committee’s General Comment on Article 25. It therefore held that any conditions applicable to the exercise of Article 25 rights should be based on objective and reasonable criteria established by law (see Purohit and Moore v. The Gambia, Communication no. 241/2001, § 76).
32. According to the comparative-law materials available to the Court on the legislation of member States of the Council of Europe concerning the right to vote from abroad, the majority of the countries concerned authorise and have implemented procedures to allow their nationals resident abroad to vote in parliamentary elections. However, the situation varies greatly and the different scenarios do not lend themselves to classification into neat categories. A distinction can nevertheless be made between two broad categories: those member States which permit their citizens to vote from abroad, on the basis of a variety of arrangements; and those which, as a general rule, do not. Lastly, most of the member States which allow voting from abroad lay down administrative procedures for the registration of expatriates on the electoral roll.
33. Thirty-seven member States fall into this category: Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, the Republic of Moldova, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom.
34. The above-mentioned countries provide either for voting in polling stations abroad or postal voting, or both. The following seventeen countries allow voting in embassies or consulates or in polling stations set up elsewhere: Bulgaria, Croatia, the Czech Republic, Denmark, Finland, France, Georgia, Hungary, Iceland, the Republic of Moldova, Norway, Poland, Romania, Russia, Serbia, “the former Yugoslav Republic of Macedonia” and Ukraine.
Eight countries (Austria, Germany, Italy, Liechtenstein, Luxembourg, the Netherlands, Portugal and Slovakia) allow their citizens living abroad to vote by post only, either through an embassy or consulate or by writing directly to the competent national authority. The possibility of voting either at an embassy (or consulate) or by post is provided for in Belgium, Bosnia and Herzegovina, Estonia, Latvia, Lithuania, Slovenia, Spain and Sweden. A handful of countries – Belgium, France, the Netherlands, Switzerland and the United Kingdom – also allow voting by proxy. In Monaco, proxy voting is the sole means by which nationals of that country can vote from abroad.
A few States (the Netherlands and Switzerland) allow Internet voting. This type of voting is already enshrined in law and in operation in Estonia, while it is under consideration in Spain.
35. In five member States (Bosnia and Herzegovina, Denmark, Hungary, Liechtenstein and “the former Yugoslav Republic of Macedonia”), only persons temporarily resident outside the country have the right to vote from abroad. In the last-mentioned country, the law refers explicitly to persons living and working abroad temporarily. In some countries, expatriates lose the right to vote after a certain period of time (fifteen years in the United Kingdom and twenty-five years in Germany).
36. Certain countries such as Austria, Hungary, Slovenia and Ukraine allow external voting only with the permission of the host country.
37. In four countries – Croatia, France, Italy and Portugal – expatriates may elect their own representatives to the national parliament in constituencies set up outside the country. In Portugal, each of the two constituencies elects a member of parliament. French citizens living abroad participate in the election of twelve members of the Senate via the 150strong Assembly of French Expatriates. From 2012, they will also be able to elect eleven members to the National Assembly. In Croatia and Italy, the number of parliamentary seats allocated to expatriate constituencies depends on the number of votes cast.
38. Eight member States – Albania, Andorra, Armenia, Azerbaijan, Cyprus, Malta, Montenegro and San Marino – do not allow voting from abroad in parliamentary elections. In particular, in Albania, the electoral code in force contains no provisions concerning voting from abroad. In Ireland, strict rules are laid down, with postal voting for expatriates being confined to members of the police and armed forces and to Irish diplomats and their spouses. The right is therefore limited to a specific, very small group of individuals. Under the legislation in Montenegro and San Marino, persons resident abroad may vote only in their own country.
39. In at least twenty-two of the member States which allow voting from abroad, persons wishing to avail themselves of this facility must apply by a certain deadline to be registered on the electoral roll, either to the authorities in their country of origin or to the diplomatic or consular mission abroad.
40. In Bosnia and Herzegovina an application for registration must be made before each election to the country’s central electoral commission. In Denmark, persons eligible to vote have to submit an application to the last municipality in which they lived. In Hungary, voters may request registration at the diplomatic or consular mission, by filling out an application to the local electoral bureau within the specified time-limit. In Germany and Luxembourg, the request must be made to the local authorities. In Slovakia, voters living abroad must request registration on a special electoral roll held by the municipal authorities of BratislavaPetržalka. In Slovenia, persons voting abroad must notify the national electoral commission, while in Serbia they must request registration on the electoral roll as foreign residents. Spanish voters must apply to the provincial branch of the electoral bureau for registration on the special list of absentee voters. In the United Kingdom, overseas voters must re-register each year with their local electoral registration office.
41. In some countries, the request must be sent to the diplomatic mission or consulate, which either draws up the list of voters itself or forwards requests to the competent authority in the country of origin. Belgian citizens included on the population register held by the diplomatic mission or consulate must complete a form indicating the municipality in which they wish to be registered and the voting method they will use. The form is then sent to the municipality concerned and the person’s name is added to the list of expatriate voters.
42. In Bulgaria, the Czech Republic, Poland and Russia, the list of expatriate voters is drawn up by the diplomatic or consular mission on the basis of requests from voters. Croatian citizens wishing to vote abroad must register with the Croatian embassy or consulate. Latvian voters who wish to vote by post have to apply to the diplomatic mission or consulate concerned, where they are registered on a special list. In the Netherlands, expatriates eligible and wishing to vote must request registration on the electoral roll of Dutch nationals living abroad by applying to the head of the consular mission, who forwards the request to The Hague. In Portugal, voting abroad entails prior registration on a consular list of voters. Swiss citizens living abroad must apply to the diplomatic or consular mission with which they are registered. The application is forwarded to the municipality in which the person concerned habitually voted, and he or she is registered on the electoral roll there. In “the former Yugoslav Republic of Macedonia”, expatriate voters are registered on the country’s electoral roll after applying to the diplomatic mission or consulate. In Turkey, expatriate voters must register on a special electoral roll by submitting a declaration of residence to the nearest consulate.
43. In other countries, expatriate voters do not have to complete any formalities in order to register, as the authorities register them automatically on the basis of the existing lists of voters. This is the case in Estonia, Finland, France, Georgia, Iceland, Italy, Lithuania, the Republic of Moldova, Norway, Romania, Sweden and Ukraine. Voters who are not on the electoral roll may register on request (for instance in France, Georgia, Italy and Ukraine).
44. In Iceland, voters must re-register on the national electoral roll after eight years’ residence abroad; in Norway and Sweden, the time-limit is ten years.
45. In some countries which have automatic registration, expatriates must complete certain formalities in order to vote in their country of origin. For instance, Italian voters resident abroad who wish to vote in Italy must inform the relevant consular authority in writing. French expatriates must request registration on the electoral roll in France if they wish to vote there.
NON_VIOLATED_ARTICLES: P1
NON_VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-4906
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: C.C.F. v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicant is a Dutch national, born in 1970, and resides on the isle of Bonaire, the Netherlands Antilles. He is represented by Mr E.Th. Hummels, a lawyer practising in Utrecht, the Netherlands.
On 25 February 1995, acting on information received that behind the X. snack on the isle of Bonaire drugs were being sold, the police officers R.P. and M.R. conducted an investigation on that location. Upon their arrival there, they saw two men, one of whom the applicant.
According to the applicant, the two police officers searched him in public while he was made to stand facing a wall with his trousers and underpants lowered until the knees. No drugs were found on him. When the applicant refused to comply with the police officers' subsequent order to remove his underpants, he was arrested and taken to the police station
According to the formal police record (proces-verbaal) on this investigation, the police officer R.P. saw that the applicant gave a small object to the other person present who gave the applicant a banknote in return. The applicant added this banknote to a bundle of notes, which he then put in his pocket. The police officers apprehended the applicant. The other person absconded. The officers searched the applicant. No drugs were found on him. An amount of 252.37½ Antillean Guilders found on him was seized. While searching the applicant, the police officer R.P. saw the applicant hide an object in his underpants. The applicant was arrested and brought by car to the police station. When the applicant got out of the car at the police station, he dropped a plastic bag on the floor. The police officer M.R. picked up the bag and secured it. The bag was found to contain six small plastic sachets each containing cream-coloured powder.
Subsequent tests indicated that the powder found contained cocaine. Following his arrest, the applicant was placed in pre-trial detention.
By summons of 27 April 1995, the applicant was ordered to appear on 9 May 1995 before the Court of First Instance (Gerecht in Eerste Aanleg) sitting in Bonaire on charges of possession of and trafficking in narcotics.
On 9 May 1995, the Court of First Instance started its examination of the case. The defence stated that it had summoned E.J., B.W., G.S. and K.V. in order to be heard as witnesses, but that only K.V. had appeared. It granted the request by the prosecution to stay the proceedings in order to take evidence from these persons. It adjourned its examination until 13 June 1995.
On 22 May 1995, Mr E.J. gave evidence before the investigating judge (rechter-commissaris). G.S. and B.W. gave evidence before the investigating judge on 29 May 1995. All three witnesses confirmed that, on 25 February 1995, the two police officers had forced the applicant to lower his pants and underpants when they searched him.
On 13 June 1995, the prosecution sought a further stay, as it wished to verify certain allegations which had been made against the police. The prosecution further stated it wished to hear as witnesses the police officers R.P., M.R. and J. The defence did not object to a further stay, but requested the applicant's release from pre-trial detention. The Court of First Instance adjourned the case until 8 August 1995, ordered that the police officers R.P., M.R. and J. be heard before the investigating judge and further ordered the applicant's immediate release. The applicant was released on the same day.
On 8 august 1995, upon the request of both the prosecution and the defence, the Court of First Instance adjourned the proceedings until 12 September 1995 in order to hear R.W. as a witness.
On 12 September 1995, the Court of First Instance adjourned its examination until 3 October 1995 as the witness R.W. had not appeared. It ordered that this witness be forcibly brought before it on 3 October 1995.
On 3 October 1995, the Court of First Instance took evidence from the applicant, who denied the charges. It further took evidence from R.W., who stated inter alia that he had bought two sachets of base (cocaine) from the applicant shortly before the latter was arrested on 25 February 1995. He himself had walked away. He further stated that he never bought any drugs from the applicant previously. He also stated to have been beaten by the police upon his arrest as he had refused to talk. Both the prosecution and the defence were given the opportunity to put questions to this witness.
The Court of First Instance further considered various other means of evidence, including the formal police records of the investigation carried out on 25 February 1995 and statements made to the police officer A.W. on 23 November 1993 by L.B. and L.A. respectively, who had each declared to have bought base from the applicant. The court of First Instance further heard the parties' final pleadings and closed its investigation.
In its judgment of 17 October 1995, the Court of First Instance convicted the applicant of trafficking in narcotics and sentenced him to eighteen months' imprisonment with deduction of the time spent in pre-trial detention. The applicant filed an appeal with the Joint Court of Appeal of the Netherlands Antilles and Aruba (Gemeenschappelijk Hof van Justitie van de Nederlandse Antillen en Aruba).
On 2 April 1996, the Joint Court of Appeal heard the applicant, who stated to be innocent, and considered the means of evidence before it, including formal police records concerning the investigation of 25 February 1995, the report of the Curaçao Public Health Laboratory containing the findings of the test carried out on the powder found on 25 February 1995, a statement made to the police officer A.W. on 21 November 1993 by E.W., who had stated to have bought base from the applicant, statements made to the police officer A.W. on 23 November 1993 by L.B. and L.A. respectively, who had each declared to have bought base from the applicant, and a statement made to the police officer A.W. on 8 January 1994 by S.C., who had stated to have bought base from the applicant. The Joint Court of Appeal further heard the parties' pleadings and closed its investigation.
By judgment of 23 April 1996, the Joint Court of Appeal quashed the judgment of 17 October 1995, convicted the applicant of trafficking in narcotics and sentenced him to eighteen months' imprisonment with deduction of the time spent in pre-trial detention.
The Joint Court of Appeal rejected as not having been made plausible the assertion by the defence that the evidence against the applicant had been fabricated and that the finding of the cocaine had been faked. It found no reasons to doubt the veracity of the facts and circumstances as related in the formal police records.
It further rejected the argument of the defence that the statements of the witnesses K.V., E.W., L.A., L.B., S.C., and R.W. could not be used in evidence on grounds that their statements concerned different facts. The Joint Court of Appeal considered that these statements mutually support each other, since they concern similar facts. The court added that these statements were only used in conjunction with the other means of evidence. It further rejected the argument by the defence that the witness R.W. had been afraid to retract his statement for fear of being prosecuted for perjury. The court held that it had not appeared that this statement had not been made freely. It added that this was also the case with the other statements used in evidence,
The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad). Pursuant to Article 99 of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) an appeal in cassation is limited to points of law and procedural conformity.
In his appeal in cassation, the applicant complained that the prosecution should have been declared inadmissible on grounds that the applicant's rights under Article 3 had been violated in that the police officers had forced the applicant to lower his pants and underpants on a public place. The applicant further complained under Article 6 of the Convention that the Joint Court of Appeal had unjustly rejected his argument that the evidence against him had been fabricated and that the finding of the cocaine had been faked. He also complained under Article 3 of the Convention that he would have to serve his sentence in the Koraalspecht prison on the isle of Curaçao, where the conditions of detention, according to the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment in its Report CPT/Inf (96)1 of 18 January 1996, constitute inhuman and degrading treatment.
In his advisory opinion to the Supreme Court, the Procurator-General (Procureur-Generaal) to the Supreme Court advised the Supreme Court to reject the first complaint on grounds that the defence had not raised this argument before the Joint Court of Appeal whereas in cassation proceedings no facts or circumstances can be invoked which have not been established before the trial courts. He further advised to reject the second complaint on grounds that the rejection by the Joint Court of Appeal of this argument was based on its comprehensible assessment of the facts, which cannot be further reviewed in cassation proceedings. As to the third complaint, the Procurator-General noted that this complaint had not been raised before the trial court and considered that this issue could not be raised for the first time in cassation proceedings as this would require an investigation of the conditions in which prison sentences imposed by courts in the Netherlands Antilles are habitually executed.

In its judgment of 11 November 1997, referring to Article 101a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie), the Supreme Court rejected the applicant's complaints in cassation without stating any further reasons. It further did not find any grounds on the basis of which the judgment of 23 April 1996 should be quashed ex officio.
Article 101a RO provides as follows:
<Translation>
"If the Supreme Court considers that a complaint submitted cannot lead to cassation and does not prompt a determination of legal issues in the interest of legal unity and legal development, it can limit itself to this finding when giving the reasons of its decision on that point."