...

THE FACTS

1.  The applicant, Mr Bronisław Woś, is a Polish national who was born in 1928 and lives in Cielcza. The respondent Government were represented by their Agents, Mr K. Drzewicki, and subsequently by Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.

A.  Historical background

2.  The realities of the international situation following the end of the Second World War prevented the Republic of Poland from asserting any claims arising out of the persecution of its citizens, including as forced labourers, by Nazi Germany.

3.  In the period immediately following the Second World War, Poland did not conclude a specific agreement with Germany regarding the issue of reparations. It relied on the Potsdam Agreement of 1 August 1945, concluded by the governments of the United States of America, the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics.

4.  On 27 February 1953 the London Agreement on German External Debts (the London Debt Agreement) was concluded by the United States of America, Great Britain, France and the Soviet Union. Under this Agreement, consideration of claims arising out of the Second World War by countries that had been at war with, or occupied by, Germany, and by nationals of such countries, against the Reich or agencies of the Reich were deferred until the final settlement of the issue of reparations.

5.  On 23 August 1953, the day after a similar declaration by the government of the Soviet Union, the government of Poland declared that it renounced any claims against Germany in respect of war reparations as of 1 January 1954. In a declaration of 27 September 1969 made at the United Nations, the government of Poland clarified that the renouncement of 1953 did not affect individual claims arising out of unlawful acts.

6.  It was only after the conclusion of the Treaty on the Final Settlement with respect to Germany of 12 September 1990 (the so-called Two-Plus-Four Treaty) and the conclusion of two treaties between the Federal Republic of Germany and the Republic of Poland in 19901 and 19912 that the issue of persons persecuted by the Nazi regime was addressed in a bilateral agreement of 16 October 1991 (see paragraph 20 below).

B.  The circumstances of the case

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

The applicant was subjected to forced labour during the Second World War on the territory of occupied Poland. In February and March 1941 he worked on a German farm near Cielcza. Subsequently, from April 1941 to April/May 1944, the applicant worked as a forest labourer in Cielcza. Finally, he was relocated to an area situated 200 kilometres from his habitual place of residence, where he was required to reinforce German defences from May/June 1944 to 26 January 1945. In February 1944 the applicant reached the age of 16.

1.  Proceedings concerning the first compensation scheme

8.  On 20 October 1993 the applicant applied to the Polish-German Reconciliation Foundation (Fundacja Polsko-Niemieckie Pojednanie “the Foundation”) for compensation on account of his forced labour from the funds contributed by the government of the Federal Republic of Germany under the Agreement of 16 October 1991 (see paragraphs 20-21 below). On 2 February 1994 the Foundation's Verification Commission (Komisja Weryfikacyjna), having regard to a document issued by the social security authorities, established that the applicant had been subjected to forced labour from February 1941 to January 1945 and awarded him 1,050 Polish zlotys (PLN) in compensation. This payment was granted within the framework of the “primary payments scheme” (wypłaty podstawowe). The issue of deportation was apparently not addressed in the decision. The applicant's subsequent appeal against this decision was dismissed by the Appeal Verification Commission (Odwoławcza Komisja Weryfikacyjna) on an unspecified date.

9.  On an unspecified date in 1999 the Foundation's management board (Zarząd Fundacji) adopted Resolution no. 29/99, which introduced a deportation requirement for claimants who had been forced labourers. The resolution also provided that those claimants who had been subjected to forced labour as children under the age of 16 could be granted compensation regardless of whether the deportation condition was met (see paragraph 27 below).

10.  On 2 March 2000, following the adoption of Resolution no. 29/99, the Foundation's Verification Commission granted the applicant a supplementary payment of PLN 365. The decision on supplementary payment related to the applicant's forced labour as a child under the age of 16 (from April 1941 to February 1944). Thus, the period of forced labour from March 1944 to January 1945 was not taken into account because the deportation condition as defined in Resolution no. 29/99 had not been met. The period of forced labour from February to March 1941 was not acknowledged in the absence of appropriate evidence.

11.  On 12 March 2000 the applicant appealed against that decision to the Appeal Verification Commission, challenging the amount of compensation granted. It appears that the applicant complained that the period of his forced labour between May/June 1994 and 26 January 1945, carried out in particularly harsh conditions connected with his relocation, was not taken into account by the Verification Commission. Having received no reply to his appeal, the applicant made further enquiries with the Foundation on 31 October 2000 and 3 January 2001.

12.  In the meantime, the applicant had lodged a complaint with the Ombudsman regarding the Foundation's inactivity. On 4 April 2001 the Ombudsman informed the applicant that, regrettably, he was not in a position to question the lawfulness of resolutions adopted by the Polish-German Reconciliation Foundation or any other foundation. The Polish-German Reconciliation Foundation was established in accordance with the Foundations Act of 6 April 1984. In this particular case, the Foundation operated under the supervision of the Minister of the State Treasury. However, the Ombudsman could not interfere with the Foundation's actions as long as they complied with its statute and other legal regulations. The Ombudsman also referred to the Supreme Court's decision of 31 March 1998, which refused to recognise the Polish-German Reconciliation Foundation as a public administration body (see paragraphs 46-47 below).

13.  By a letter of 24 April 2001, the president of the Foundation's Appeal Verification Commission informed the applicant that, under the Foundation's internal regulations in force at the material time (Resolution no. 29/99), only forced labourers deported to the Third Reich or to an area occupied by the German Reich (with the exception of the territory of occupied Poland) were eligible for compensation. Finally, the applicant was informed that no further appeal lay against the decision of the Appeal Verification Commission.

14.  Nevertheless, on an unspecified later date, the applicant lodged a complaint against the decision of the Appeal Verification Commission of 24 April 2001 with the Supreme Administrative Court (Naczelny Sąd Administracyjny). It appears that in his complaint the applicant also challenged Resolution no. 29/99.

15.  On 14 December 2001 the Supreme Administrative Court dismissed the applicant's complaint, considering it inadmissible in law. It relied on Decision no. OPS 3/01, adopted by the Supreme Administrative Court on 3 December 2001 (see paragraph 50 below).

2.  Proceedings concerning the second compensation scheme

16.  On 21 November 2000 the applicant applied to the Polish Foundation for compensation under the scheme for slave and forced labourers (the second compensation scheme), established under the Joint Statement of 17 July 2000, the German Law of 2 August 2000 on the creation of the Remembrance, Responsibility and Future Foundation (“the German Foundation Act”) and the subsequent Agreement of 16 February 2001 between the Remembrance, Responsibility and Future Foundation and the Polish-German Reconciliation Foundation (see paragraphs 29-33 and 35-36 below). On 17 April 2001 the Foundation's Verification Commission rejected his request on the ground that he did not satisfy the deportation requirement set out in section 11(1)2 of the German Foundation Act (see paragraph 33 below). It appears that the applicant did not appeal against the decision of the Verification Commission of 17 April 2001.

17.  On 17 October 2001 the Polish Foundation granted the applicant PLN 1,000 in compensation due to the fact that he had been subjected to forced labour as a child under the age of 16. This decision was based on Resolution no. 15/2001 of the Foundation's management board, adopted on 16 March 2001 (see paragraph 42 below).

18.  The applicant's subsequent complaints to the Minister of the State Treasury, who acted as the supervisory authority of the Foundation, were unsuccessful.

C.  Relevant domestic and international law and practice

1.  Constitutional provisions

19.  Article 9 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and came into force on 17 October 1997, states:

“The Republic of Poland shall respect international law binding upon it.”

Article 45 § 1 of the Constitution reads:

“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”

Chapter III of the Constitution, entitled “Sources of law”, refers to the relationship between domestic law and international treaties.

Article 87 § 1 provides:

“The sources of the universally binding law of the Republic of Poland shall be: the Constitution, statutes, ratified international agreements, and regulations. ...”

The relevant part of Article 91 provides:

“1.  After promulgation thereof in the Journal of Laws of the Republic of Poland [Dziennik Ustaw], 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.

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

2.  The Agreement of 16 October 1991 and the establishment of the Polish-German Reconciliation Foundation (the first compensation scheme)

20.  On 16 October 1991 the governments of the Federal Republic of Germany and the Republic of Poland concluded an agreement on the basis of which the German government declared that, prompted by humanitarian considerations, it was prepared to contribute 500 million German marks (DEM) for the benefit of the Polish-German Reconciliation Foundation. The Foundation was to be established by the government of Poland with a view to providing financial assistance to victims of Nazi persecution who had suffered serious damage. The Foundation was to determine the necessary criteria for the granting of compensation, having regard to serious damage to the victims' health and to their current financial difficulties. The government of Poland declared that it would not pursue further individual claims by Polish citizens arising out of Nazi persecution. Both governments indicated that their agreement should not amount to a limitation of the rights of citizens of either country.

21.  Subsequently, on 27 November 1991, the Minister – Head of the Cabinet's Office (Minister – Szef Urzędu Rady Ministrów), acting as a founder, made a declaration before the State notary on the establishment of the Foundation. He declared that, acting on the initiative of the government of the Republic of Poland and on behalf of the State Treasury, he was establishing the Polish-German Reconciliation Foundation. The Foundation's aim was to provide assistance to the victims of Nazi persecution and to undertake other activities for the benefit of those persons. The Minister also declared that the Foundation's capital fund consisted of DEM 500 million, contributed by the German government to the Polish government.

22.  The Polish-German Reconciliation Foundation was established in accordance with the Foundations Act of 6 April 1984, which regulates the activities of foundations in Poland. The Act stipulates that individuals and legal persons may establish foundations in order to carry out socially and economically beneficial goals which comply with the basic interests of the Republic of Poland. In principle, supervision of a foundation's activities is exercised by the regional governor (Wojewoda) or the competent minister. These supervisory authorities may apply to a court to establish whether a foundation's activities comply with its aim, its statute and the general legislation (section 12). The competent minister or the regional governor may also apply to the courts to quash a resolution adopted by a foundation if it is evidently incompatible with its aim, its statute or the general legislation (section 13).

23.  The statute of the Polish-German Reconciliation Foundation was drafted and subsequently registered by the Warsaw District Court on 24 February 1992. On that date the Foundation began its activities. The founder could amend the statute and decide whether the Foundation was to go into liquidation. According to paragraph 6 of the statute, the Foundation's primary aim was to render direct financial assistance to those victims of Nazi persecution whose health had been seriously damaged and who were in a difficult financial situation as a result of that persecution.

24.  The Foundation's main bodies were the supervisory board (Rada Nadzorcza), composed of twenty-one members, and the management board (Zarząd), composed of nine members. The members of those bodies were appointed and dismissed by the founder, namely the Minister – Head of the Cabinet's Office, who exercised full control in this respect. The two other bodies of the Foundation were the Verification Commission (Komisja Weryfikacyjna), whose members were appointed by the Foundation's management board, and the Appeal Verification Commission (Odwoławcza Komisja Weryfikacyjna), whose members were appointed by the Foundation's supervisory board.

25.  The Foundation assessed the substantive and procedural aspects of requests for financial assistance on the basis of its statute and the regulations drawn up by the management board and adopted by the supervisory board. The Verification Commission was responsible for reaching decisions on whether to grant financial assistance to victims. Appeals against the Verification Commission's decisions could be lodged with the Appeal Verification Commission. The latter's decisions were to be final.

26.  The financial assistance granted by the Foundation from the funds contributed by the government of the Federal Republic of Germany in 1992-93 was paid in two parts: a primary payment and a supplementary payment, the latter deriving from the interest accrued on the original contribution from the German government. On 23 May 2002 the disbursement of all those compensation payments was terminated on the basis of Resolution no. 29/2002 of the Foundation's management board.

27.  On an unspecified date in 1999 the Foundation's management board adopted Resolution no. 29/99 which introduced a deportation requirement. The resolution specified that only those forced labourers who had been deported from their place of residence to the territory of the German Reich or to territories occupied by Germany were eligible for compensation. It stipulated that the deportation condition was not fulfilled by those persons who had been subjected to forced labour on the territory of Poland within that country's borders of August 1939. In addition, Resolution no. 29/99 laid down a separate eligibility criterion to the effect that those who had been subjected to forced labour as children under the age of 16 could be granted compensation regardless of whether the deportation condition was met.

28.  On an unspecified date in 2001 or earlier, the Minister of the State Treasury (Minister Skarbu Państwa) assumed the function of founder and supervisory authority of the Foundation.

3.  Compensation scheme for slave and forced labourers (the second compensation scheme)

29.  From 1998 to 2000 another set of international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by Nazi Germany. The government of Poland was one of the parties to these negotiations. They were prompted by a number of lawsuits against certain German companies before the courts in the United States in which compensation was sought on account of forced labour during the Second World War. The German companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace. The negotiations concluded on 17 July 2000 with the adoption of a Joint Statement which was signed by all the parties to the negotiations, including the government of Poland3.

30.  The parties to the Joint Statement acknowledged the intention of the government of Germany and of the German companies concerned to accept moral and historic responsibility arising from the use of slave and forced labourers and from other injustices committed during the National Socialist era and the Second World War. They affirmed their consensus of 17 December 1999 on the establishment of the Remembrance, Responsibility and Future Foundation, which was to be a means of providing funds for victims from central and eastern Europe, most of whom had benefited little from prior German compensation and restitution programmes. The parties to the Joint Statement further agreed to base their decisions regarding distribution of funds on the eligibility criteria set out in the German Foundation Act.

31.  According to the Joint Statement, the government of Germany and the German companies concerned undertook to contribute DEM 5 thousand million to the Remembrance, Responsibility and Future Foundation. The Joint Statement stipulated that the governments of the participating central and eastern European States, including Poland, and the government of Israel agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace.

32.  Subsequently, on 2 August 2000, the German parliament enacted the Law on the creation of the Remembrance, Responsibility and Future Foundation. It came into force on 12 August 2000. However, the disbursement of payments only started on 30 May 2001, once the relevant guarantees had been secured by the German companies concerned with regard to the dismissal of the lawsuits filed against them in the United States courts.

33.  The relevant parts of the Law on the creation of the Remembrance, Responsibility and Future Foundation provide:

“Preamble

Recognising

that the National Socialist State inflicted severe injustice on slave labourers and forced labourers, through deportation, internment and exploitation, which in some cases extended to destruction through labour, and through a large number of other human rights violations,

that German companies which participated in the National Socialist injustice bear a historic responsibility and must accept it,

that the companies which have come together in the Foundation Initiative of German Industry [Stiftungsinitiative der deutschen Wirtschaft] have acknowledged this responsibility,

that the injustice committed and the human suffering it caused cannot be truly compensated by financial payments,

that the Law comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime,

the German Bundestag acknowledges political and moral responsibility for the victims of National Socialism. The Bundestag intends to keep alive the memory of the injustice inflicted on the victims for coming generations as well.

...

Section 1 – Establishment and headquarters

(1)  A legally recognised Foundation with the name 'Remembrance, Responsibility and Future' shall be established under public law.

...

Section 2 – Purpose of the Foundation

(1)  The purpose of the Foundation is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from the National Socialist period.

...

Section 10 – Distribution of resources through partner organisations

(1)  The approval and disbursement of one-off payments to those persons eligible under section 11 will be carried out through partner organisations. The Foundation is neither authorised nor obligated in this regard. The board of trustees may opt for another mode of payment.

...

Section 11 – Eligible persons

(1)  Eligible under this Law are:

1.  persons who were held in a concentration camp as defined in section 42(2) of the German Indemnification Act [Bundesentschädigungsgesetz] or in another place of confinement outside the territory of what is now the Republic of Austria or a ghetto under comparable conditions and were subjected to forced labour;

2.  persons who were deported from their homelands into the territory of the German Reich within the borders of 1937 or to a German-occupied area, subjected to forced labour in a commercial enterprise or for public authorities there, and held under conditions other than those mentioned in paragraph 1, or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions;

...

(2)  Eligibility shall be demonstrated by the applicant by submission of documentation. The partner organisation shall bring in relevant evidence. If no relevant evidence is available, the claimant's eligibility may be substantiated in some other way.”

4.  Implementation of the second compensation scheme by Poland

34.  On 10 August 2000 the Polish government submitted to Parliament a bill on exemption of payments received in connection with Nazi persecution from tax and duties. In the written grounds of the bill the government stated that payment of benefits on account of forced labour for the Nazi regime had been agreed in the course of negotiations involving the respective governments, German companies and the victims. They further stated that, as a result of the agreement with the Germans, Poland would receive more than DEM 1.8 thousand million. On 21 September 2000 the Polish parliament enacted the Law on exemption of payments received in connection with Nazi persecution from tax and duties. That Law also exempted the Polish-German Reconciliation Foundation from taxes due on funds received by the Foundation for the distribution of payments. It came into force on 17 November 2000.

35.  On 16 February 2001 an agreement was concluded between the Remembrance, Responsibility and Future Foundation and the Polish-German Reconciliation Foundation. Under its terms the Polish-German Reconciliation Foundation was to act as a partner organisation of the German Foundation, with a view to securing prompt disbursement of compensation payments to slave and forced labourers (paragraph 1 of the agreement). Both parties agreed to implement fully the provisions of the German Foundation Act and declared that their agreement was in compliance with the Joint Statement of 17 July 2000.

36.  The above agreement further stipulated that the Polish Foundation, as a partner organisation, was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of Poland as of 16 February 1999 (paragraph 2). The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way (paragraph 5.1). A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of compensation awarded before an independent appeal body established within the partner organisation (paragraph 5.5). According to paragraph 6.3 of the agreement, decisions taken by the appeal body were final and could not be challenged before a court (paragraph 3).

37.  The Agreement of 16 February 2001 was accompanied by three annexes. Annex no. 3 contained a declaration by the Polish government with regard to responsibility for the disbursement of compensation payments. The relevant parts provide:

“Since 1998 the government of the Republic of Poland has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed by Nazi Germany. In the negotiations, the government has played a significant role on behalf of the representatives of the victims. Due to the government's efforts, former slave and forced labourers will receive in total DEM 1,812 thousand million, which constitutes a very positive outcome to the negotiations.

The government of the Republic of Poland will endeavour to ensure that the payments from the Remembrance, Responsibility and Future Foundation, handled by the Polish-German Reconciliation Foundation with the participation of Polish financial institutions, will be processed properly. To that end the Polish authorities will take steps with regard to the Polish-German Reconciliation Foundation within their founding and supervisory competences.”

38.  The statute of the Polish-German Reconciliation Foundation was amended on the initiative of its founder, namely the Minister of the State Treasury, with a view to implementing the provisions of the German Foundation Act and the Agreement of 16 February 2001; those amendments were subsequently registered by the Warsaw District Court on 26 June 2001.

39.  The amended statute stipulated that the Foundation was to disburse compensation payments to the victims specified in section 11 of the German Foundation Act from the funds contributed by the Germans on the basis of the same Act (paragraphs 6.2 and 9.2)4. It further specified that the Foundation's decisions in individual cases were to be taken on the basis of internal regulations. A decision in an individual case could be appealed against; however, a decision taken after an appeal had been considered was final and no appeal lay against it (paragraphs 6.4 and 6.5).

40.  Pursuant to paragraph 20 of the amended statute, the Verification Commission was to determine individual claims for assistance filed by victims of Nazi persecution. Members and the president of the Verification Commission were to be appointed and dismissed by the Foundation's management board (paragraph 21.1). Detailed regulations as to the organisation of the Verification Commission and the rules and criteria on the granting of assistance were specified in the internal regulations of the Verification Commission, drafted by the management board and adopted by the supervisory board (paragraph 21.2).

41.  Decisions taken by the Verification Commission could be appealed against to the Appeal Verification Commission. Its president and members are appointed and dismissed by the Foundation's management board, having consulted the supervisory board. The Appeal Verification Commission operates on the basis of internal regulations drafted by the management board and adopted by the supervisory board (paragraph 23.2). The amended statute stipulated that the decisions of the Appeal Verification Commission were final (paragraph 23.3).

42.  On 16 March 2001 the management board of the Polish-German Reconciliation Foundation adopted Resolution no. 15/2001 with a view to providing compensation to certain categories of claimants who were not eligible under the criteria laid down in the German Foundation Act. Under that resolution, the Foundation decided to allocate PLN 40 million from its own funds and 10 million United States dollars from the London Gold Fund (Victims of Nazi Persecution Fund), received by the Polish government from the government of the United States of America, to those claimants who had been subjected to forced labour as children under the age of 16 at their place of residence (that is to say, without the deportation requirement being met).

5.  Case-law of the Polish courts

43.  In a decision of 12 January 1993 (no. I SA 1762/92), the Supreme Administrative Court stated that:

“A foundation is not a civic organisation and therefore, in accordance with the Code of Administrative Procedure, it is not possible to delegate to a foundation power to determine individual cases by way of administrative decisions.”

Consequently, a foundation's decisions cannot be appealed against to the Supreme Administrative Court.

44.  In a decision of 12 March 1993 (no. I ACr 133/93), the Warsaw Court of Appeal (Sąd Apelacyjny) held that:

“The Foundation's aims in respect of its capital fund, which are determined in the Foundation's statute, do not create rights for other persons vis-à-vis the capital fund. Lack of legal protection for the entitlements of particular persons to receive benefit from the Foundation implies that a claim raised in this respect is not a civil one, and accordingly the jurisdiction of the [civil] courts is excluded.”

45.  In 1997 the Ombudsman referred to the Supreme Court a question of law (pytanie prawne), as to whether decisions given by the bodies of the Foundation could be appealed against to the Supreme Administrative Court and, if not, whether they were subject to judicial review in civil proceedings. The Ombudsman relied, inter alia, on Article 45 of the Constitution and Article 6 § 1 of the Convention. In particular, the Ombudsman asked the Supreme Court to consider the following issues:

(a)  whether there was any legal provision excluding judicial review if a dispute arose between an individual and the Foundation;

(b)  whether the Foundation could be regarded as a body performing functions in the area of public administration, given that it served public aims with the use of public resources;

(c)  whether Article 1 § 2 and Article 5 § 2 (3) of the Code of Administrative Procedure constituted sufficient grounds to conclude that it could not perform any functions in the area of public administration;

(d)  whether the assessment of facts and law established by the Foundation also had a bearing on the claimant's relationship with the Director of the Veterans and Persecuted Persons Office;

(e)  whether the decision to award or refuse to award compensation was not a purely technical act, since it was always preceded by a legal assessment of an individual case.

46.  On 31 March 1998 the Supreme Court (Sąd Najwyższy) adopted Decision no. III ZP 44/97, holding that, since administrative functions could only be delegated by a statute, which was not the case with regard to the Polish-German Reconciliation Foundation, its decisions did not meet the requirements of an administrative decision and thus could not be challenged before the Supreme Administrative Court. However, the Supreme Court refused to give a definite answer to the question whether the Foundation's decisions were subject to judicial review in civil proceedings. It nevertheless observed that entitlement to receive a benefit from the Foundation did not fall within the scope of civil law, and thus could not be raised before a civil court. In exceptional cases, such as where the claimant's eligibility was established but the benefit had not been paid, a claim could arise under civil law.

47.  The Supreme Court considered that the fact that the Foundation's aims were the same as the aims which were to be achieved by the public authorities would not justify the conclusion that the Polish-German Reconciliation Foundation performed functions in the area of public administration. Similarly, the manner in which the Foundation had been established and the nature of its tasks, common – in the Supreme Court's view – to all foundations, could not support the above conclusion.

48.  In a decision of 19 February 1999 (no. V SAB 7/99), the Supreme Administrative Court ruled:

“The Polish-German Reconciliation Foundation does not perform any functions in the area of public administration, in that there is no legal provision giving it the competence to do so. It follows that, in view of the lack of statutory authority, decisions granting or refusing to grant compensation to a victim of the Nazi regime are not administrative decisions and cannot be challenged before the Supreme Administrative Court.”

49.  In a decision of 5 October 2001 (no. III CZP 46/01), the Supreme Court ruled that a plaintiff's claim seeking recognition of the fact that he had been subjected to forced labour during the Second World War could not be examined by a (civil) court. The Supreme Court considered that the awarding of compensation by the Foundation did not create an individual right of a contractual nature. The Foundation decided whether the eligibility conditions for the granting of a payment were established. Thus, according to the Supreme Court, the Foundation was not a debtor vis-à-vis the claimants, but acted as a decision-making body. The Foundation's decisions merely created a legal basis for the awarding of compensation. The above situation did not, therefore, resemble civil-law relations.

50.  In a decision of 3 December 2001 (no. OPS 3/01), the Supreme Administrative Court confirmed the earlier case-law to the effect that it did not have jurisdiction to review the decisions of the Foundation and observed:

“The Polish-German Reconciliation Foundation, which awards benefits to the victims of Nazi persecutions using the financial resources allocated to it by foreign entities, does not perform functions in the area of public administration. Thus, the source of the entitlement to receive an award from the Foundation does not stem from acts of the public administration.”

It further observed:

“There is no doubt that the Agreement of 16 October 1991 concluded between the Polish and German governments, which was not ratified, as well as subsequent acts [starting with the Joint Statement and the German Foundation Act] concerning grants of financial assistance by the Foundation on account of Nazi persecution do not fulfil the criteria which would make it possible to classify them as sources of binding Polish law. No administrative-law relation arises between a claimant and the Foundation on the basis of the aforementioned acts, and consequently the Foundation is not an organ of public administration established by law to determine cases in the sphere of public administration.”

COMPLAINT

51.  The applicant complained, without relying on any of the Convention Articles, that the Foundation's decisions, partly refusing to grant him compensation in respect of his forced labour, were unfair and that these decisions could not be appealed against to any other competent body. The applicant alleged in substance that he was deprived of the right of access to a court.

THE LAW

52.  The applicant complained of the Polish-German Reconciliation Foundation's decisions partly refusing to grant him compensation. He further alleged, in substance, that he did not have access to a court in respect of the Foundation's decisions in his case. The Court considers that the applicant's complaint falls to be examined under Article 6 § 1 of the Convention, the relevant parts of which provide:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...”

A.  Responsibility of the Polish State

53.  As a preliminary issue, the Court has to determine whether Poland's responsibility under the Convention is engaged in respect of the acts of the Polish-German Reconciliation Foundation.

1.  The parties' submissions

54.  The Government argued that the Foundation was not a governmental agency. It was a fully independent entity operating under private law, and the State could not be held responsible for its actions or decisions concerning individual applications for financial assistance. The Government submitted that supervisory functions exercised by the public authorities were limited to the examination of whether the Foundation's activities complied with its aims, its statute and the applicable legislative provisions. According to the Government, it could not be overlooked that State supervision of foundations was limited only to their bodies, whereas neither the founder nor the recipients of financial assistance were subject to any supervision by the State authorities.

55.  The Government further submitted that two separate periods should be distinguished in the Foundation's activities. The first period began in 1991 with the establishment of the Foundation and ended in 2000, when the international agreement regarding compensation schemes for slave and forced labourers was concluded.

56.  Having regard to the Agreement of 16 October 1991, the Government contended that in the first period of its activities the Foundation was fully authorised to define its own rules for awarding financial assistance to the victims of Nazi persecution. The rules adopted by the Foundation were exclusively a matter for its internal regulations, and any possibility of reviewing those rules was reserved solely for the Foundation's supervisory authority, which could apply to the courts to have a resolution adopted by the Foundation quashed. The Government further submitted that the Verification Commission and the Appeal Verification Commission were entirely independent from the Foundation's management board and the supervisory board. In addition to the right to lodge an appeal against the Verification Commission's decision, every person concerned had a right to lodge a complaint with the minister responsible for supervising the Foundation.

57.  The second period in the Foundation's activities started in 2001, when the Polish-German Reconciliation Foundation began to operate as the “partner organisation” of the German Remembrance, Responsibility and Future Foundation. The Government contended that the legal and financial framework for voluntary payments by the German government and German industry had been established on the basis of the Joint Statement of 17 July 2000 and the German Foundation Act. The German Foundation Act contained specific rules on eligibility for compensation payments and the division of funds among partner organisations.

58.  The Government argued that both the Joint Statement and the German Foundation Act, which had been negotiated over a period of two years, constituted an integral whole. Further, they contended that Poland, like all the other signatories to the Joint Statement, could not apply its own regulations departing from the scheme, which was binding on all the parties to the agreement. The parties to this agreement, when making compensation payments to eligible persons, undertook to follow the criteria set out in the Foundation Act. The Government underlined that, consequently, the Polish-German Reconciliation Foundation, as one of the partner organisations, could not introduce its own rules for compensation payments.

59.  The applicant argued that the Polish State was responsible for the acts of the Polish-German Reconciliation Foundation. He maintained that the government had established the Foundation and entrusted it with its tasks. The applicant also submitted that members of the Foundation's management board were appointed and dismissed by the government and that the Minister of the State Treasury supervised the Foundation's operations.

2.  The Court's assessment

(a)  Principles deriving from the Court's case-law

60.  The Court has consistently held that the responsibility of a State is engaged if a violation of one of the rights and freedoms defined in the Convention is the result of non-observance by that State of its obligation under Article 1 to secure those rights and freedoms in its domestic law to everyone within its jurisdiction (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, judgment of 13 August 1981, Series A no. 44, p. 20, § 49). Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of the member State's “jurisdiction” from scrutiny under the Convention (see United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 17-18, § 29). Furthermore, the State cannot absolve itself from responsibility ratione personae by delegating its obligations to private bodies or individuals (see, mutatis mutandis, Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, p. 58, § 27). The undertakings given by a Contracting State under Article 1 of the Convention include, in addition to the duty to refrain from interfering with the enjoyment of the rights and freedoms guaranteed, positive obligations to take appropriate steps to ensure respect for those rights and freedoms within its territory (see, among other authorities, Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V).

(b)  Application of the above principles to the present case

(i)  General considerations

61.  The Court accepts the argument advanced by the Government that two separate periods should be distinguished in the Foundation's operations. However, it finds that, for the purposes of State responsibility for the Foundation's acts under the Convention, the distinction proposed by the Government, although not without relevance, is not conclusive.

(α)  The first compensation scheme

62.  The Court observes that the Polish-German Reconciliation Foundation was established in 1991 in implementation of the Agreement of 16 October 1991 concluded between the governments of the Republic of Poland and the Federal Republic of Germany. The Foundation was established by the Minister – Head of the Cabinet's Office (the founder), acting on the initiative of the government of Poland and on behalf of the Polish State Treasury. It is true that, in a formal sense, the Foundation is a private-law entity operating under the Foundations Act of 6 April 1984. However, it cannot be overlooked that the very existence of the Foundation was brought about by the action of a government minister in implementation of a bilateral agreement negotiated and co-formed by the representatives of the Polish government. Furthermore, the Foundation's statute was drawn up by the government minister who acted as founder. The Court also notes that the founder could decide whether the Foundation went into liquidation.

63.  The Court notes that the tasks with which the Foundation was originally entrusted stemmed from the bilateral Agreement of 16 October 1991, which had been freely entered into by Poland. The Court recognises the specific character of the obligations undertaken by the Polish State under that agreement, namely to establish a body which would assess compensation claims by Polish citizens who had been persecuted under the Nazi regime and to distribute compensation payments provided for that purpose by the other party to the agreement. In the Court's view, the respondent Government had consented under the Agreement of 16 October 1991 to delegate these obligations to a body operating under private law. Thus, they established the Polish-German Reconciliation Foundation, a body exercising quasi-public functions, and entrusted it with the obligations arising out of the international agreement.

64.  It is of significance that the Agreement of 16 October 1991 contained only a general clause to the effect that the Foundation's capital fund would be distributed among those victims of Nazi persecution who had been particularly wronged. The Court notes that, under the agreement, the Foundation was to define the necessary conditions for awarding compensation, namely, serious harm to a claimant's health and his or her current financial difficulties. These conditions were subsequently transposed into the Foundation's statute and reflected in the internal regulations adopted by the Foundation. It is apparent that the Agreement of 16 October 1991 specified only general requirements for the awarding of compensation by the Foundation, while leaving a substantial degree of regulatory powers to the Foundation in respect of the specific eligibility criteria and procedural rules to be applied. The Court notes that the power to regulate granted to the Foundation was considerable and has been extensively used, as evidenced, inter alia, by Resolution no. 29/99 introducing the deportation requirement.

(β)  The second compensation scheme

65.  The Court observes that the respondent State was a party to international negotiations which led to the adoption of the legal acts governing the operation of the second compensation scheme. The Court cannot but note that during these negotiations the government of Poland entered into commitments which were subsequently made binding on the Polish-German Reconciliation Foundation. Thus, the Government recognised, at least implicitly, that they were able to exercise a measure of control over the Foundation. The Court also notes the grounds of the governmental bill on exemption of payments received in connection with Nazi persecution from tax and duties, and the content of Annex no. 3 to the Agreement of 16 February 2001, in which the government of Poland stated that it would oversee the process of disbursement of compensation payments by the Polish-German Reconciliation Foundation.

66.  The Court also notes that, according to section 10 of the German Foundation Act, the Polish-German Reconciliation Foundation, as one of the partner organisations, was entrusted with evaluation of the compensation claims and disbursement of compensation payments to eligible claimants. In addition, this provision stipulated that the Remembrance, Responsibility and Future Foundation was neither authorised nor obligated in respect of the approval and disbursement of compensation payments by the partner organisations. Thus, for practical purposes, decisions to grant compensation were taken by the Polish-German Reconciliation Foundation. Admittedly, the basic eligibility criteria were determined in the German Foundation Act and as such they fell outside the jurisdiction of the respondent State. However, they were agreed upon by the government of Poland in the course of the international negotiations which preceded the enactment of the German Foundation Act. In any event, the proximate cause of the Foundation's operation was, during both periods, an international agreement to which Poland was a party.

67.  Furthermore, with regard to Resolution no. 15/2001 of 16 March 2001 by the Foundation's management board, the Court notes that certain funds received by the government of Poland from the government of the United States of America in the framework of the Victims of Nazi Persecution Fund were subsequently allocated directly by the former to the Polish-German Reconciliation Foundation.

(γ)  As regards both compensation schemes

68.  The Court attaches importance to the manner in which the governing and adjudicating bodies of the Foundation were created. It notes in particular that the founder (a government minister) was empowered under the statute to appoint and dismiss at his discretion all members of the Foundation's supervisory board and management board, which in turn were given responsibility for adopting the Foundation's internal regulations. The management board was responsible for the appointment and dismissal of the Verification Commission, while the supervisory board had parallel powers in respect of the Appeal Verification Commission. Furthermore, a certain degree of control and supervision over the Foundation was exercised by the Minister of the State Treasury. The Court considers that, by way of the above arrangements, the government had at its disposal substantial means of influencing the Foundation's operations.

69.  The Court notes that, according to the interpretation adopted by the domestic courts, the Foundation is not a public administration body and does not perform functions in the area of public administration (see paragraph 50 above). Furthermore, the domestic courts ruled that administrative functions could be delegated only by a statute, which was not the case with regard to the Foundation (see paragraph 46 above). Consequently, the Foundation's decisions in individual cases could not be reviewed by the Supreme Administrative Court. In this connection, the Court reiterates that it is not its task to substitute itself for the domestic jurisdictions. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court's role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, inter alia, Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I).

70.  Having regard to the above-mentioned case-law of the domestic courts, the Court observes that their findings excluded the jurisdiction of the Polish courts in respect of reviewing individual decisions by the Foundation's bodies on compensation payments. It is not for the Court to call into question that this was a correct interpretation of Polish law applicable to foundations in general. At the same time, however, the respondent State, which had established the Foundation and entrusted it with the administration of both compensation funds, decided to exclude access to the courts in these matters. Against this background, the reasoning of the domestic courts in their decisions concerning the domestic status of the Foundation are not capable of ruling out entirely State responsibility under the Convention. It follows that the application cannot be rejected as incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3.

(ii)  Conclusion

71.  Having regard to the above general considerations, the Court is of the view that it cannot be said that the State exercised a pervasive influence in the daily operations of the Polish-German Reconciliation Foundation. It did not have direct influence over the decisions taken by the Foundation in respect of individual claimants; however, the State's role was crucial in establishing the overall framework within which the Foundation operated.

72.  The Court considers that the fact that a State chooses a form of delegation in which some of its powers are exercised by another body cannot be decisive for the question of State responsibility ratione personae. In the Court's view, the exercise of State powers which affects Convention rights and freedoms raises an issue of State responsibility regardless of the form in which these powers happen to be exercised, be it for instance by a body whose activities are regulated by private law. The Convention does not exclude the transfer of competences under an international agreement to a body operating under private law provided that Convention rights continue to be secured (see, mutatis mutandis, Matthews v. the United Kingdom [GC], no. 24833/94, § 32, ECHR 1999-I). The responsibility of the respondent State thus continues even after such a transfer.

73.  The Court observes that the respondent State has decided to delegate its obligations arising out of international agreements to a body operating under private law. In the Court's view, such an arrangement cannot relieve the Polish State of the responsibilities it would have incurred had it chosen to discharge these obligations itself, as it could well have done (see, mutatis mutandis, Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, pp. 14-15, §§ 28-30; and Costello-Roberts, cited above, p. 58, § 27). It should be recalled in this respect that the Convention is intended to guarantee rights that are not theoretical or illusory, but rights that are practical and effective (see Matthews, cited above, § 34).

74.  In conclusion, having regard to all the above considerations, the Court considers that the specific circumstances of the present case give rise to the conclusion that the actions of the Polish-German Reconciliation Foundation in respect of both compensation schemes are capable of engaging the responsibility of the State.

B.  Applicability of Article 6 § 1 of the Convention

1.  The parties' submissions

75.  The Government claimed that the proceedings in which the applicant had been involved did not concern the determination of his civil rights and obligations. They noted that the Polish authorities have never accepted an obligation to redress the wrongs inflicted on Polish citizens by Nazi Germany. The Government further stressed that the Polish-German Reconciliation Foundation had no obligation to compensate victims of the Nazi regime, since it was not a successor to those entities that had violated the rights of Polish citizens. Furthermore, they argued that the nature and scope of payments granted by the Polish-German Reconciliation Foundation did not allow them to be considered as falling within the scope of civil law. The Government maintained that the payments granted by the Foundation were based on moral grounds and were of a humanitarian nature. As such, they could not be associated with the classic civil-law concept of damages adopted in Polish or German law.

76.  The Government observed that, in the first period of the Foundation's activities (1991-2000), relations between the Foundation and the claimants were not based on an equal footing. During that period the Foundation was exclusively competent to establish the eligibility criteria and to make decisions on awarding financial assistance. Consequently, any proceedings in the relevant period were strictly internal and any assistance granted by the Foundation was of a humanitarian nature. In the Government's view, this excluded the possibility that a right to claim financial assistance from the Foundation came under the scope of the civil law. In respect of the second compensation scheme, the Government maintained that payments granted under that scheme concerned “voluntary financial payments by the government of the Federal Republic of Germany and German industry”.

77.  The applicant contended that Article 6 § 1 of the Convention was applicable to the proceedings in his case.

2.  The Court's assessment

78.  The Court notes at the outset that the applicant's claims before the Polish Foundation and the ensuing proceedings concerned two distinct compensation schemes. Consequently, the issue of the applicability of Article 6 § 1 of the Convention should be examined separately in respect of each of the compensation schemes.

(a)  The first compensation scheme

(i)  Principles deriving from the Court's case-law

79.  The Court reiterates that, according to the principles laid down in its case-law, it must first ascertain whether there was a “dispute” (“contestation”) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether this “right” is also protected under the Convention (see, inter alia, Neves e Silva v. Portugal, judgment of 27 April 1989, Series A no. 153-A, p. 14, § 37). The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question (see, among other authorities, Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 43, ECHR 2000-IV, and Mennitto v. Italy [GC], no. 33804/96, § 23, ECHR 2000-X). Lastly, the right must be a “civil” right.

(ii)  Application of the above principles to the proceedings in issue

(α)  General considerations

80.  The Court considers that under the Convention there is no general obligation for States to compensate wrongs inflicted in the past under the general cover of State authority. Consequently, substantive regulations which determine the eligibility criteria for any such compensation would, in principle, fall outside the Court's jurisdiction, unless the relevant criteria were established in a manner which was manifestly arbitrary or blatantly inconsistent with the fundamental principles of the Convention. Referring to the facts of the present case, the Court observes that it is not necessary to decide how much appreciation was left to the Polish State in determining the eligibility criteria for the compensation payments. Even assuming that determining eligibility criteria in order to compensate damage originating from the distant past does not in principle raise questions under the substantive provisions of the Convention, it cannot be excluded that some procedural issues related to the correct application of these eligibility criteria to individual cases would arise. In so far as the substantive rules determining the scope of claimants' entitlement to compensation payments could amount to property rights or legitimate expectations on the part of beneficiaries, a question could arise as to whether, in practice, the Foundation's bodies ensured correct application of the substantive provisions, with due regard to the requirements of Article 6 § 1 of the Convention.

(β)  Existence of a dispute over a right

81.  The Court notes firstly that the applicant's original claim for compensation of 20 October 1993 was granted by way of the decision of 2 February 1994 in respect of the overall period of his forced labour (from February 1941 to January 1945) and without any consideration being given to the deportation requirement. Following amendments to the eligibility criteria introduced by the Foundation's Resolution no. 29/99, the applicant received a supplementary compensation payment, but only in respect of his forced labour between April 1941 and February 1944 and on the ground that he had performed forced labour as a child under the age of 16. The period of his forced labour from March 1944 onwards was not taken into account for the purposes of granting him the supplementary compensation, as the deportation requirement was not met. Thus, it could be said that a dispute arose between the applicant and the Foundation in respect of the right to receive compensation for the overall period of his forced labour. The dispute concerned the amount of compensation and the issue of eligibility for the awarding of compensation on account of his forced labour; the applicant considered that the deportation requirement was not a relevant factor in the assessment of his compensation claim.

82.  The Court considers that the dispute over the applicant's entitlement to compensation, and in particular its scope, was genuine and of a serious nature. In its view, it could not be said that the applicant's claim was frivolous or vexatious or otherwise lacking in foundation. The outcome of the relevant proceedings was decisive since it concerned the scope of the applicant's right to obtain compensation in respect of the overall period of his forced labour.

83.  With regard to the issue of whether the right to compensation from the Foundation on account of Nazi persecution was recognised, at least on arguable grounds, under domestic law, the Court notes that the relevant Foundation's regulations defined the conditions and procedures with which a claimant had to comply before compensation could be awarded by the Foundation. Those regulations, regardless of their characterisation under domestic law, could be considered to create a right for a victim of Nazi persecution to claim compensation from the Foundation. Accordingly, if a claimant complied with the eligibility conditions stipulated in those regulations, he had a right to be awarded compensation by the Foundation (see, mutatis mutandis, Rolf Gustafson v. Sweden, judgment of 1 July 1997, Reports 1997-IV, pp. 1160-61, § 40). Thus, it cannot be said that the relevant Foundation's regulations gave rise to an ex gratia compensation claim.

84.  The Court considers that the applicant could claim, at least on arguable grounds, the right to receive compensation from the Foundation in respect of the overall period of his forced labour. This was so especially since he had already received one instalment of compensation (the primary payment) by virtue of the decision of 2 February 1994, so that he could have been led to believe that he did indeed have such a right. That decision attested that the applicant had sustained serious damage to his health and was currently in a difficult financial situation as a result of Nazi persecution.

85.  The Court accepts the Government's position that the right to receive compensation on account of Nazi persecution from the Polish-German Reconciliation Foundation does not in any way imply that the Polish State or, for that matter, the Foundation as such has any obligation to redress the wrongs inflicted by the Nazi regime.

86.  In conclusion, the Court finds that the Foundation's competent bodies had thus to determine a dispute concerning a right claimed by the applicant.

(γ)  Whether the disputed right was a civil one

87.  As to the “civil” character of the right asserted by the applicant, the Court reiterates that the concept of “civil rights and obligations” is not to be interpreted solely by reference to the respondent State's domestic law. Article 6 § 1 of the Convention applies irrespective of the status of the parties, the character of the legislation which governs how the dispute is to be determined and the character of the authority which is invested with jurisdiction in the matter (see, among other authorities, Georgiadis v. Greece, judgment of 29 May 1997, Reports 1997-III, p. 959, § 34). In ascertaining whether a case concerns the determination of a civil right, only the character of the right in issue is relevant (see König v. Germany, judgment of 28 June 1978, Series A no. 27, p. 30, § 90).

88.  The Court observes that there was no specific legislation in the respondent State governing entitlement to the compensation in issue, with the exception of the law exempting such payments from taxation. However, the relevant regulations were broadly defined in the Agreement of 16 October 1991 and subsequently incorporated and defined more precisely in the Foundation's statute and its internal regulations. In those circumstances, the Court is satisfied that there was a specific legal framework governing the eligibility for compensation claims and the relevant procedures.

89.  The Court is not persuaded by the Government's arguments that the compensation claims in issue were not based on classic concepts of civil-law liability but that they were of a humanitarian nature. On this point the Court is of the opinion that the applicant could attempt to bring his civil claims for any damage he had sustained on account of Nazi persecution before a German court. However, the Government furnished no information regarding any such claims being successfully asserted before the German courts. Furthermore, no such claim arising out of forced labour imposed by the Nazi regime could be brought before the German courts following the enactment of the German Foundation Act (see also the decision of the German Federal Constitutional Court of 7 December 2004, EuGRZ 2005, pp. 56-63).

90.  Similarly, having regard to the autonomous nature of the concept “civil rights and obligations”, the Court does not find conclusive the findings of the domestic courts to the effect that compensation claims asserted against the Foundation did not come within the scope of civil law (see paragraphs 44 and 46 above).

91.  The Court notes that in Salesi v. Italy (judgment of 26 February 1993, Series A no. 257-E, pp. 59-60, § 19) it found Article 6 § 1 of the Convention applicable to proceedings concerning entitlement to welfare allowance. The Court considers that there are similarities between the entitlement to welfare allowance and the entitlement to receive compensation from the Polish-German Reconciliation Foundation, regard being had in particular to the eligibility criteria of a claimant's financial difficulties and severe damage to his health as a result of Nazi persecution.

92.  With reference to the above-mentioned judgment, the Court observes that in the present case the applicant was not affected in his relations with the Foundation, acting in the exercise of its discretionary powers. Rather, the applicant suffered an interference with his means of subsistence and was claiming an individual, economic right flowing from specific rules laid down in the Foundation's statute and internal regulations (see, mutatis mutandis, Salesi, loc. cit., and Mennitto, cited above, § 28). Thus, the Court is of the view that the right to claim compensation on account of Nazi persecution from the Polish-German Reconciliation Foundation can be considered “civil” for the purposes of Article 6 § 1 of the Convention.

93.  For the above reasons the Court finds that the right to compensation asserted by the applicant under the first compensation scheme is a civil right within the meaning of Article 6 § 1 of the Convention, which is thus applicable.

(b)  The second compensation scheme

94.  With regard to the proceedings concerning the applicant's claims under the second compensation scheme (the slave and forced labourers' scheme), the Court notes that the applicant has not demonstrated that he lodged an appeal with the Appeal Verification Commission against the decision of the Foundation's Verification Commission of 17 April 2001. In those circumstances, the Court considers that it is not necessary to examine the issue of the applicability of Article 6 § 1 of the Convention to the proceedings concerning the second compensation scheme.

95.  It follows that this part of the application relating to the proceedings under the second compensation scheme is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to paragraph 4 of that Article.

C.  Compliance with Article 6 § 1 of the Convention in respect of the proceedings concerning the first compensation scheme

1.  The parties' submissions

96.  The Government submitted that the right of access to a court was not absolute, and referred to the principles established in the Court's case-law. They argued that the restrictions on access to a court imposed in the applicant's case were not in breach of Article 6 § 1 of the Convention. They stressed that the compensation payments granted by the Polish-German Reconciliation Foundation at any given time could not be compared with an award of damages. The Government submitted that the compensation payments in issue were voluntary and a form of humanitarian assistance to individuals who, as a result of Nazi persecution, had lost their health and were in a difficult financial situation. Taking into consideration the nature of the payments made by the Foundation, the Government maintained that the possibility of ensuring judicial review of these acts had to be excluded. The Government argued that, nevertheless, the nature of the payments did not undermine the right of claimants to have their applications fairly examined by the Foundation, including through a right of appeal.

97.  The applicant did not specifically address this question in his observations.

2.  The Court's assessment

98.  As far as compliance with Article 6 § 1 of the Convention in respect of the applicant's claims under the first compensation scheme is concerned, the Court considers, in the light of the parties' submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. No other ground for declaring the application inadmissible has been established.

For these reasons, the Court

unanimously

Declares admissible without prejudging the merits, the applicant's complaint under Article 6 § 1 of the Convention that he did not have access to a court in respect of his claims raised before the Polish-German Reconciliation Foundation under the first compensation scheme;

by a majority

Declares inadmissible the remainder of the application.

1.  Treaty of 14 November 1990 on confirmation of the existing border between the Federal Republic of Germany and the Republic of Poland.


2.  Treaty of 17 June 1991 on good neighbourliness and friendly cooperation.



4.  The Polish-German Reconciliation Foundation was also entrusted with the disbursement of payments on the basis of a similar scheme enacted by the Austrian parliament for the benefit of those slave and forced labourers who had worked on the territory of present-day Austria.


WOŚ v. POLAND DECISION


WOŚ v. POLAND DECISION 


WOŚ v. POLAND DECISION