Agrarian reform – the Constitutional Court’s March 1, 2010 decision will make it more difficult to recover property seized by the state
The justification for the Constitutional Court’s order of March 1, 2010 in case P 108/08 was published today. The subject of the Court’s examination was § 5 para. 1 Decree of the Minister of Agriculture and Agrarian Reform of March 1, 1945. on the implementation of the decree of the Polish Committee for National Liberation of September 6, 1944. on carrying out land reform (Journal of Laws No. 10, item 51, as amended). This provision was invoked by the law firm in reprivatization proceedings conducted on behalf of our clients – former landowners.
Until now, clients have applied to provincial offices for a declaration that the property or part of it was not covered by the provisions of the Land Reform Decree. This was particularly true of the so-called palace and park complexes, most of which could not be used for land reform purposes and were therefore wrongly seized by the Treasury in the 1940s. Obtaining an administrative decision declaring that the palace and park complex was not covered by the decree’s provisions opened the way for former owners to court-ordered restitution of lost property, among other things by means of an action to reconcile the contents of the land register with the actual legal state. Thus, until now, there was a model in which administrative authorities verified whether the property was rightfully subject to agrarian reform, and then the courts, based on an administrative decision, restored the property to its legal status in the land register.
This model of procedure was challenged by the Constitutional Court in the order in question. The Court held that Section 5 of the Decree implementing the Land Reform Decree had already expired in 1958. According to the Court, there can be no independent validity of the provision of the decrees implementing the decree, and therefore the administrative authorities have no legal basis for issuing decisions determining whether a particular property was actually covered by the provisions of the agrarian reform decree, since the decree has already been “consummated” and cannot continue to be applied. The Court’s latest decision is fundamental to the proceedings currently underway. According to data provided by the Minister of Agriculture and Rural Development since 1990 By the end of the first half of 2009 The Ministry received 17,081 cases related to the revindication of properties seized for the benefit of the State Treasury. In August 2009 2,345 cases were pending.
As a result of the Constitutional Court’s order, all proceedings by the governors and the Minister will be discontinued. This is because, in the Court’s view, there is no legal basis for the administrative authorities to issue decisions. Former owners of landed estates will be forced to go to court, where they will be required to prove in an action to establish or reconcile the contents of the land register that the properties taken from them could not be used for land reform purposes and were therefore wrongfully taken by the state.
On the one hand, such a procedure may be faster, since it will no longer be necessary to initiate administrative proceedings and, after receiving a decision, civil proceedings in court. This practical aspect was taken into account by the Court.
On the other hand, no one has taken into account the drastic procedural consequences of having to pay a court fee on a lawsuit. Prior to the CT decision, the administrative proceedings were free of charge, and the former owners had a chance to check in advance whether the park and palace complex was indeed not covered by the land reform legislation. As a result of the CT ruling, the former owners immediately have to pay a very high court fee, without as much certainty as before that their rationale will indeed be recognized. The negative consequences of the Constitutional Court’s ruling also relate to the distribution of the burden of proof. In the previous model, the administrative procedure assumed that the governor, ex officio, was obliged to comprehensively consider the case and obtain relevant documents. As a result of the Constitutional Court’s ruling, the entire burden of proof has been shifted to former landowners, who have far less ability to obtain documents than the administrative authorities.
There is also controversy over the effect of the Court’s order on cases that have already been completed. Since the Court found that §5 of the regulation expired decades ago, consequently, all decisions of governors since 1990 were issued without legal basis. Such a state of affairs naturally raises the question of whether this does not constitute a premise for the resumption of administrative proceedings or the annulment of issued decisions.
Undoubtedly, the Court’s order organizes procedures related to the return of nationalized land assets, but the balance of the changes is unfavorable for former owners, for whom only the judicial route, associated with high fees and a formalized procedure, remains.