The return of property to church entities and Jewish Communities (the participation of the units of local self-government in the so-called regulatory proceedings) K 25/10
The challenged provisions of the Act on Relations Between the State and Jewish Communities in the Republic of Poland are consistent with the Constitution.
At the hearings on 9 January and 13 March 2013, the Constitutional Tribunal (full bench) considered an application, submitted by the Polish Ombudsman, with regard to the return of property to church entities and Jewish Communities (the participation of the units of local self-government in the so-called regulatory proceedings).
In its judgment of 13 March 2013, the Tribunal adjudicated that Article 33(5) in conjunction with Article 33(2), third sentence, of the Act of 20 February 1997 on Relations Between the State and Jewish Communities in the Republic of Poland, construed in the way that it did not rule out other legal measures than an appeal against a decision of the Regulatory Committee, was consistent with: Article 165(2) of the Constitution as well as Article 31(3), Article 77(2) and Article 78 of the Constitution. As to the remainder, the Tribunal discontinued the proceedings.
Dissenting opinions were submitted by the following Judges of the Constitutional Tribunal: Stanisław Biernat (with regard to the discontinuation of the proceedings), Zbigniew Cieślak (with regard to the statement of reasons for the judgment), Leon Kieres (with regard to the discontinuation of the proceedings), Andrzej Rzepliński (with regard to the discontinuation of the proceedings), Piotr Tuleja (with regard to the discontinuation of the proceedings), and Andrzej Wróbel (with regard to the discontinuation of the proceedings).
The Constitutional Tribunal concluded that the challenged provisions of the Act on Relations Between the State and Jewish Communities in the Republic of Poland were consistent with the Constitution. Moreover, the Tribunal discontinued the proceedings within the scope of examining the constitutionality of the provisions of the Act on Relations Between the State and the Polish Catholic Church in the Republic of Poland, due to the fact that the said provisions had ceased to have effect.
The Constitutional Tribunal stated that a decision of the decision-making panel of the Regulatory Committee constitutes the resolution of a dispute between participants in regulatory proceedings. A decision issued by the said panel is a determination which is unilateral and has legal effects with regard to the realm of the property rights of a religious community and a unit of local self-government that is obliged to return given property. Shaping the legal situations of other entities in a legally effective way entails exercising powers falling within the scope of the powers of administrative authority.
Since issuing decisions by the decision-making panel of the Regulatory Committee constitutes an element of broadly construed activity of public administration, then the activity of the Committee is governed by the general regulations of administrative law. In particular, the term “appeal” used in the content of Article 33(5) of the Act on Relations Between the State and Jewish Communities in the Republic of Poland, challenged by the Ombudsman, should be understood as an ordinary appellate measure applied as part of the administrative procedure.
The wording of Article 33(5) of the Act on Relations Between the State and Jewish Communities in the Republic of Poland, pursuant to which “a decision issued by the decision-making panel of the Regulatory Committee may not be appealed”, denotes that in regulatory proceedings there is no possibility of referring a given case to a higher instance. It does not rule out the application of other legal measures. This does not concern only extraordinary appellate measures against a decision issued by the Committee in the course of administrative proceedings.
It does not follow from Article 33(5) of the Act on Relations Between the State and Jewish Communities in the Republic of Poland that a decision of the Committee rules out the possibility of court proceedings. The said provision does not comprise the content assigned to it by the applicant and does not rule out the possibility of court proceedings as regards reviewing the compliance of a decision issued by the decision-making panel of the Committee with the law.
The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was Judge Mirosław Granat.
The judgment is final and its operative part shall be published in the Journal of Laws.