THE PERILS OF RETROACTIVE LAWS Part 2 / Will the law be retroactive in reprivatisation cases?
July 8, 2021
Further to my article of the 6th of July 2021, in which I described proposed changes to the Code of Administrative Procedure, in connection with the announcement issued by the Ministry of Foreign Affairs, there is a need for further clarification.
Was the change in the Code of Administrative Procedure forced by the judgment of the Constitutional Tribunal of the 12th of May 2015?
No. Not to the extent that it was finally adopted.
Indeed, on the 12th of May 2015, the Constitutional Tribunal issued a ruling in which the durability of administrative decisions was considered, in particular with reference to the article 156 § 2 of the Code. As previously indicated, this provision stipulates three out of seven prerequisites, namely:
– issuing a decision without legal basis or with a gross violation of law
– permanent unenforceability of the decision on the day of its issuance
– the fact that the decision, if carried out, would result in a criminal offense
Under these conditions, it is possible to declare the decision invalid regardless of the lapse of time from its publication or delivery.
In other cases, when:
– the decision was issued in violation of the rules of jurisdiction;
– the decision concerned a case resolved previously by another final decision;
– the decision was addressed to a person who is not a party to the case;
– the decision contained a defect which rendered it void,
it is not possible to declare it invalid (ie. to remove it from legal order), if 10 years have passed since its delivery or publication. In such situations, the decision remains in legal order (as in all cases where it has already caused irreversible legal effects) and the authority issuing decisions merely states that such decision was issued with a gross violation of law.
This opens the way to compensation proceedings.
The Constitutional Tribunal noted that issuing a decision without legal basis or with a gross violation of law, as it is very vague, should be subject to a ten-year period, after which the decision cannot be eliminated from the legal order. It should only be possible to declare its issuance in violation of law and therefore, open the way to seek damages.
The amendment makes this particular change – the prerequisite of issuing a decision without legal basis or with gross violation of law, subject to a ten-year period, after which the decision cannot be reversed but after declaring its issuance in violation of law, the party shall claim proper compensation.
In my opinion, this should have been the end of the proposed amendment. It would only require an implementation of the judgment of the Constitutional Tribunal, because only this matter was covered by the Tribunal’s ruling.
However, the proposed amendment goes two steps further as it introduces:
1) a 30-year period after which it is not possible to even initiate proceedings for the annulment of the decision (and thus at least a declaration of violation of law and opening the way to claim damages before the court); and,
2) a provision that will make it possible to terminate proceedings that were initiated 30 years after the decision was delivered or announced, even if they had been pending for many years, without issuing any final decision.
Under no circumstances did the ruling of the Constitutional Tribunal in May 2015 require such actions from the lawmakers.
Termination of pending proceedings: has it been considered by the Sejm?
The change which refers to termination of the already pending proceedings was discussed in the Sejm. The Parliamentary Club of the Civic Coalition proposed a change, according to which the cases already pending should be handled according to the current rules. However, this amendment was rejected by the parliamentary majority.
Will the proposed amendment affect only administrative proceedings and not those carried out before a civil court aimed at obtaining compensation?
This issue is addressed in a very cursory manner in the announcement issued by the Ministry of Foreign Affairs. Indeed, the amendment will not lead to closure of pending proceedings for compensation for damages, which are conducted on the basis of legally valid decisions declaring previous decisions in violation of law. These proceedings may end with a court judgment.
However in order to initiate proceedings for compensation, it is necessary to obtain prior administrative confirmation that the original decision was issued in violation of law. In effect, new cases for compensation for the issuing of illegal acts by the Communist authorities can no longer be initiated.
Which proceedings will not be affected by the amendment of the Code of Administrative Procedure?
Amendment to the article 156 § 2 of the Code of Administrative Procedure will not affect ‘small re-privatization act’ – ie. cases concerning nationalization of real estates located in Warsaw. I personally think that the ‘small reprivatisation act’ itself contains enough provisions that make it notoriously difficult to pursue claims (which is a material for yet another article). Nevertheless, the amendment in question should not directly affect these matters.
In addition, it will also not affect any proceedings initiated to determine owners of real estate, whose legal status is unknown (cases in which persons inscribed in the Mortgage Book are deceased or for other reasons are no longer owners of real estate).
Having said that, the amendment will broadly affect reprivatisation cases other than those concerning real estate in Warsaw. In particular, assets that were nationalised by communist authorities after World War II on the basis of provisions allowing for the takeover of specific types of enterprises or land of a specific area or use. This amendment applies equally to Polish citizens and foreigners.
The proposed amendment to the Code of Administrative Procedure is flawed and will adversely impact the ability of victims of communist nationalisation to seek truth, a measure of justice and fair compensation. This process is already administratively difficult and tortuous. In effect, these parties will have been victimised two-fold. Firstly, by the original forced seizures of property by unaccountable totalitarian regimes with contempt for fundamental human rights. And now many decades later, by government authorities and lawmakers who want to limit and restrict processes by which cases can be investigated and pursued, justice can be served and where appropriate, compensation awarded to victims of historical abuses and even crimes.