Liability for damages of the state treasury in reprivatisation cases

Przedmiotem artykułu jest zwrócenie uwagi na niektóre praktyczne aspekty dochodzenia roszczeń odszkodowawczych w tzw. sprawach reprywatyzacyjnych, a także wskazanie tendencji i zmian orzecznictwa w tych sprawach na przestrzeni ostatnich kilkunastu lat.

The article focuses on practical aspects of vindication of restitution claims in so-called 'reprivatization cases', taking into account recent tendencies of judicial decisions (in particular judgments of the Supreme Court, the Administrative Supreme Court and the Constitutional Tribunal passed in recent years). As regards cases resulting from unlawful acts of public authorities, usually very difficult and complex legal events are concerned, which extend over long periods of time - frequently even exceeding 60 years. Administrative law interferes with civil law in such cases, where similar legal issues are being dealt with both, administrative and civil courts. Not uncommonly are the legal views of civil and administrative courts contradictory, which hinders significantly the process of vindication of claims. Constitutionalisation of the right to obtain compensation for damages caused by unlawful acts of public authorities in Article 77 sec. 1 of the Constitution of the Republic of Poland in 1997 and elimination of guilt, as a prerequisite of the abovementioned claims have largely simplified vindication procedures for the injured entities. Unfortunately, fundamental problems have occurred resulting from defective wording of Article 5 of the Act dated 17 April 2004 amending Civil Code and Code of Administrative Procedure, the provision of which raises a number of interpretational doubts. Following the abovementioned amendment it occurred necessary to resolve anew several legal issues, including: questions about prescription terms (in particular as regards initial dates when subject claims become due); queries about necessity of acquisition of preliminary administrative decisions confirming illegality of acts of state authorities (before civil law action can be instituted); issues regarding kind of damage for which compensation can be claimed against the State Treasury (is it just damnum emergens or does the due compensation include lucrum cessans and if the latter is true, for which period of time lost profits can be sued); finally, questions referring to the scope of liability (for damages caused by action and omission, including legislative omission). Some of these issues have been resolved by the Supreme Court in a resolution of 31 March 2011, III CZP 112/10.