The issue of expropriated church property has come up again, this time in Poland.
In Christian Baptist Church in Wrocław v Poland  ECHR 302, the Church applied to the Governor of Wrocław In May 1996 for a decision confirming its ownership of a four-storey building that had previously belonged to it but which had been transferred to the State during the Communist regime. The Governor refused on the grounds that the Church had not fulfilled the requirements of the Relations Between the Republic of Poland and the Christian Baptist Church Act of 30 June 1995, “specifically that it had not possessed the property in question on the day of entry into force of the Act relied upon” . The Church launched further administrative and court proceedings, in June 2007 the Governor of Lower Silesia refused to return the property and in October 2009 the Supreme Administrative Court dismissed the Church’s appeal .
The Church complained of a violation of Article 1 of Protocol No. 1 (protection of property) and that the proceedings had been unfair and excessively long, contrary to Article 6 §1 (right to a fair hearing within a reasonable time).
The Constitutional Court had found in its judgment of 8 November 2005 that “the property in question was owned by the Bund Evangelisch Freikirschlicher Gemeinden in Deutschland … and not by the Christian Baptist Church or its legal entities (including the Baptist community)” and that the Christian Baptist Church in Gdańsk had not able to prove that it was the legal successor of the Bund Evangelisch Freikirschlicher Gemeinden . Therefore:
“Even assuming that on the basis of section 4 of the amended 1995 Act the property has been acquired ex lege (although the Constitutional Court does not share this opinion), acquiring the property in question ex lege is excluded because of the lack of the legal succession. It follows that the [Constitutional] Court does not share the complainant’s view presented at the hearing that there were statutory conditions for return of the property” .
The First Section ECtHR dismissed the Government’s plea of inadmissibility on grounds of failure to exhaust domestic remedies .
The Government argued that the Church had no existing possessions that would be protected under Article 1 of Protocol No. 1 and that it had no “legitimate expectation” to be granted the property in question .
The Church argued that the State had treated it as the owner of the impugned property for several years after 1946 and that in 1959 the property had been nationalised in violation of the law in force at that time. The 1995 Act had been passed with a view to compensating the loss suffered by Churches and, according to the Christian Baptist Church, the 1995 Act in its original wording had granted it the right to compensation and it had lodged its application at the relevant time. It was the subsequent amendments to the 1995 Act that had deprived it of its ability to obtain the compensation sought. The Church therefore contended that it had an asset protected under Article 1 of Protocol No. 1 .
The Court noted that:
- Article 1 of Protocol No. 1 did not guarantee the right to acquire property .
- An applicant could allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his or her “possessions” within the meaning of this provision. “Possessions” could be either “existing possessions” or assets, including claims, in respect of which the applicant could argue that he or she had at least a “legitimate expectation” of obtaining effective enjoyment of a property right; however, the hope of recognition of a property right that had been impossible to exercise . effectively was not a “possession” within the meaning of Article 1 of Protocol No. 1,
- Article 1 of Protocol No. 1 could not be interpreted as imposing any general obligation on states parties to restore property which had been transferred to them before they ratified the Convention .
- Article 1 of Protocol No. 1 did not impose any restrictions on the Contracting States’ freedom to determine the scope of property restitution and to choose the conditions under which they agreed to restore property rights of former owners .
- The hope that a long-extinguished property right may be revived could not be regarded as a “possession”; nor could a conditional claim which had lapsed as a result of a failure to fulfil the condition .
- States parties enjoyed a wide margin of appreciation with regard to the exclusion of certain categories of former owners from such entitlements and, where categories of owners had been excluded in that way, their claims for restitution could not provide the basis for a “legitimate expectation” attracting the protection of Article 1 of Protocol No. 1 .
- In certain circumstances, a “legitimate expectation” of obtaining an “asset” might also enjoy the protection of Article 1 of Protocol No. 1 if there was a sufficient basis for the interest in national law; but no legitimate expectation could be said to arise where there was a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions were subsequently rejected by the national courts .
In the present case, the Constitutional Court had held that the provisions of the 1995 Act, either in its original wording or after the 1997 amendment, could not, in the case of the Christian Baptist Church in Gdańsk, provide a basis for a legitimate expectation that it should be granted the property that it had requested. So equally in the present case, like its sister-church in Gdańsk, the Christian Baptist Church in Wrocław did not have any “existing possessions” or “legitimate expectation” within the meaning of Article 1 of Protocol No. 1 to the Convention. Therefore, that provision was not applicable  and the complaint was rejected, in accordance with Article 35 §3 ECHR, as incompatible ratione materiae with the Convention and its Protocols .
Nor had the applicant Church been deprived of its right to a fair trial [75-81].
However, the Court noted that the proceedings had lasted for thirteen years . The case might have presented some difficulties for the domestic administrative authorities, particularly in view of the fact that it involved complicated issues and concerned property which before 1 September 1939 had been located outside of the territory of Poland; and the various amendments to the relevant legislation might have influenced the overall length of the proceedings. However, those reasons were not an adequate explanation of such lengthy proceedings and, absent any other explanation by the Government and the fact that the Church had not in any way contributed to the length of the proceedings, “the Court cannot but find that the applicant church was deprived of its right to a ‘hearing within a reasonable time'” . There had therefore been a violation of Article 6 §1 .