The terms of applying for compensation for immovable properties left outside the present borders of the Republic of Poland. SK 11/12
The requirement that the right to compensation is granted on condition that the former owners of immovable properties located in the pre-WW II eastern territories of the Second Republic of Poland resided in those territories on 1 September 1939 is inconsistent with the Constitution.
At the hearing on 23 October 2012 at 9 a.m., the Constitutional Tribunal considered a constitutional complaint, submitted by Ms Anna M., which concerned the terms of applying for compensation for immovable properties left outside the present borders of the Republic of Poland.
The Constitutional Tribunal adjudicated that Article 2(1) of the Act of 8 July 2005 on exercising the right to compensation arising from leaving immovable properties outside the present borders of the Republic of Poland, insofar as it provided for the right to compensation to be granted on condition that the former owners of immovable properties resided in the pre-WW II eastern territories of the Second Republic of Poland on 1 September 1939, was inconsistent with Article 64(2) in conjunction with Article 31(3) of the Constitution. The above provision will cease to have effect after the lapse of 18 months from the date of the publication of the judgment in the Journal of Laws. As to the remainder, the Tribunal discontinued the proceedings.
There was one dissenting opinion, submitted by Judge Zbigniew Cieślak.
The right to compensation for immovable properties located in the pre-WW II eastern territories of the Second Republic of Poland is a compensatory property right that falls within the scope of public law and is subject to protection on the basis of Article 64 of the Constitution. The challenged requirement that the former owners of immovable properties located in the pre-WW II eastern territories of the Second Republic of Poland resided in those territories on 1 September 1939 constitutes the restriction of that right, which is subject to examination in the light of the principle of proportionality (Article 31(3) of the Constitution).
In the opinion of the Constitutional Tribunal, the requirement is excessively restrictive. The persons who left the pre-WW II eastern territories of the Second Republic of Poland, due to the outbreak of the WW II in 1939, could not have predicted rationally that possible compensation for the lost immovable properties would be conditioned by residing in the former territories of the Polish State during a specific and very brief period in the distant past (only one day – 1 September 1939). Indeed, during the years of the Second Republic of Poland (the period between the WW I and the WW II), the scope of the protection of ownership as regards immovable properties was in no way conditioned by the place of residence, and the provisions which were binding at that time permitted having a few places of residence. Additionally, when enacting the challenged regulation, no analysis was carried out with regard to alternative solutions, followed by the choice of the one which was the most fair and which implemented the aim of the Act to the largest extent, and which introduced only necessary restrictions and differentiation.
The Constitutional Tribunal emphasised that the legislator enjoyed considerable freedom as regards determining the terms of granting compensation, and the forms thereof, with regard to immovable properties located in the pre-WW II eastern territories of the Second Republic of Poland. However, this did not imply an automatic approval for every kind of criterion for access to such benefits that made it possible to adjust the said compensation to the capacity of the state budget. Indeed, even the smallest amounts of funds might, and should, be allocated on the basis of provisions which met constitutional standards.
The decision to defer the effects of the judgment was justified both by its potential financial consequences for the situation of the Restitution Fund as well as by the considerable degree of complexity of the matters under analysis.
The hearing was presided over by Judge Zbigniew Cieślak, and the Judge Rapporteur was Judge Wojciech Hermeliński.
The judgment is final and its operative part shall be published in the Journal of Laws.