FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45004/98 
by Tadeusz STAŃCZUK 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 14 June 2001 as a Chamber composed of

Mr G. Ress, President
 Mr A. Pastor Ridruejo
 Mr L. Caflisch
 Mr J. Makarczyk
 Mr V. Butkevych
 Mr J. Hedigan
 Mrs S. Botoucharova, judges
and  Mr  V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 17 July 1997 and registered on 16 December 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

 

THE FACTS

The applicant, a Polish citizen, was born in 1955. He resides in Szczytno.

The facts of the case submitted by the applicant may be summarised as follows:

From 1984 to 1989 the applicant served as an officer in the secret police, the Security Service (Służba Bezpieczeństwa) of the Ministry of Interior Affairs.

On 31 July 1990 all agents of the former Security Service (funkcjonariusze Służby Bezpieczeństwa) were dismissed from their service by virtue of the Act on State Security Bureau of 6 April 1990 and new selection procedures were established. The Resolution of the Council of Ministers (uchwała Rady Ministrów) of 21 May 1990 provided for special selection procedure for the former agents and created both first and second-instance screening boards for this purpose.

In August 1990 the first-instance screening board in Olsztyn in its opinion about the applicant considered that he did not meet the relevant requirements, including moral standards, and would not be readmitted to the service in the State Security Bureau.  Consequently, on 31 July 1990 the applicant was dismissed. He lodged an appeal with the Principal Board, to no avail, as on 10 September 1990 this body upheld the opinion of the first-instance board.

Subsequently, the applicant lodged three appeals with the Supreme Administrative Court against the opinion of the examining board. He submitted that the contested opinion was unjustified and the selection procedure was made without taking his professional skills into consideration. The applicant maintained that the fact that he was religiously indifferent had in fact been the main reason for which he obtained a negative opinion as to his further ability to serve in the State Security Bureau. He further complained that the decisions of the boards did not contain any grounds.

On 5 November 1991 the Supreme Administrative Court rejected the applicant's complaints. The court did not recognise the opinion of the screening board as the administrative decision against which an appeal to that court would lay and, consequently, found the complaints inadmissible.

In reply to the applicant’s complaints, on 15 October 1992 the Ministry of Interior Affairs informed him that the screening boards created under the 1990 Act and Resolution had ceased to work in September 1990 as the process of qualification and re-admission had been completed. Moreover, according to the Resolution of 1990, which did not provide for any possibility to re-open the screening proceedings, the opinions given by them were definitive and not subject to any procedure in which they could be challenged. 

By decisions of 5 November 1992 and 8 December 1992 the Supreme Administrative Court rejected the applicant’s further requests to have his service status regularised. The court observed that the applicant had been dismissed from service automatically, i.e. ex lege, under the provisions of the 1990 Act. There was no legal basis under which he could claim that a decision be given to re-admit him to the service. Therefore his requests were inadmissible.

In a letter of 2 September 1997 the Ministry of Internal Affairs, in reply to the applicant’s renewed request to be readmitted to the service, informed him that the 1990 Resolution remained in force and that the opinions given pursuant its provisions were valid. Accordingly, the Minister could not re-admit to the service any persons who in 1990 had obtained negative opinions as to their ability to be readmitted to the service.

On 16 December 1997 the applicant submitted a complaint to the Olsztyn Regional Court, requesting that it be examined by that court. He stated that he had been dismissed from the Security Police by the 1990 decision, given in proceedings which did not meet the requirements of a fair hearing in that they were not adversarial. He contested the outcome of the proceedings in which he was dismissed, invoked Article 6 of the Convention and requested that the court appraise the lawfulness of the decisions given by the first- and second-instance screening boards in 1990.

By a letter of 29 December 1997 the President of the Regional Court informed the applicant that his complaint cannot be examined as he had failed to indicate in what kind of judicial proceedings it could be examined and against whom it was directed. Moreover, the legal provisions invoked by the applicant did not provide for jurisdiction of a civil court in respect of any decisions taken by the screening boards in 1990.

COMPLAINTS

The applicant complains, invoking Article 6 of the Convention, that no procedure was available to him in which he could challenge the conclusions taken by the first- and second-instance boards in 1990. He complains that the proceedings were not adversarial. The boards did not hear any evidence in the selection procedure and his professional skills were not properly taken into consideration. He also submits that the opinion given by the examining board, which was unjustified, made it impossible for him to work in his profession.

He complains that the Olsztyn Regional Court erroneously rejected his complaint of December 1997,did not examine it on the merits and that, as a result, he was deprived of access to court competent to re-examine the decisions given by the screening boards in 1990.

THE LAW

1. The Court first recalls that Poland recognised the competence of the European Commission of Human Rights to receive individual applications "from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993".  According to Article 6 of Protocol No. 11 this limitation shall remain valid for the jurisdiction of the Court under that Protocol.. The Court observes that the applicant’s complaints in part relate to events preceding these dates. It follows that this part of the application is outside the competence ratione temporis of the Court. In particular, the Court lacks jurisdiction to examine whether the proceedings in which decisions regarding the applicant given before 1 May 1993 were compatible with the requirements of Article 6 of the Convention.

It follows that this part of the application is inadmissible as being incompatible with the provisions of the Convention within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. As regards events after 1 May 1993, the applicant complains under Article 6 of the Convention that he was deprived of access to a court in that the Olsztyn Regional Court returned his claim of 16 December 1997 to have the lawfulness of the decisions given by the examining board in 1990 re-examined.

Article 6, insofar as relevant, reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Insofar as it could be understood that the applicant complains about lack of access to civil court competent to entertain his complaints, the Court recalls that for Article 6 § 1 under its “civil” head to be applicable, there must be a “dispute” over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The “dispute” must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise (cf., e.g., the Zander v. Sweden judgment of 25 November 1993, Series A no. 279-B, p. 38, § 22). The outcome of the proceedings must be directly decisive for the right in question (cf., e.g., the Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, pp. 45–46, § 56).

The Court further recalls that Article 6 of the Convention is not applicable to proceedings concerning the recognition of a "right" which has no legal basis in the State in question (no. 12763/87, Dec.14.7.88, D.R. 57 p. 216).

As to whether in the present case a “dispute” over a “right” existed so as to attract the applicability of Article 6 § 1, the Court will first examine  whether there was any dispute.

The Court first notes that the applicant requested the Regional Court to rule on the alleged unlawfulness of the procedure followed by the examining board in 1990. He also complained about the outcome of these proceedings. He invoked Article 6 of the Convention.

However, the Court observes that the proceedings complained of came to end in 1990 by way of a final decision, which remains valid. The legal acts which provided a legal basis for the proceedings in which the former agents of the communist secret police were first dismissed and then could be re-admitted to service following a successful screening procedure, did not provide for any possibility of having the final decisions of second-instance boards challenged. This was further highlighted in the present case by the decision of the Supreme Administrative Court given in the applicant’s case on 5 November 1991 and by the further decisions of that court, which rejected the applicant’s complaints, reiterating that the decision was final and remained in force. 

The Court further considers that the applicant has not shown that there are any other provisions of domestic law under which he could be deemed as having, even on arguable grounds, a claim to have the 1990 decision reversed or amended, or to be readmitted to the service in the State Security Bureau. The Court finally notes that in his complaint which he lodged with the Regional Court the applicant did not indicate which State institution would be the opposite party in the proceedings which he sought to institute.

There are no grounds, therefore, on which to accept that there was any dispute pending between the applicant and any other public authority as to the lawfulness of the 1990 decisions. What is more, it has not been shown that the applicant had, even on arguable grounds, any claim under the domestic law to have these decisions re-examined.

Moreover, the Court considers that, in any event, regard must also be had to the fact that the proceedings concerned the dismissal of an officer working for a secret police (see Frydlender v. France [GC], no. 30979/96, ECHR 2000, and Pellegrin v. France [GC], no. 28541/95, ECHR 1999-VIII). Having adopted a functional criterion based on the nature of the duties and responsibilities of public officials, the Court has decided that the only disputes excluded from the scope of Article 6 § 1 of the Convention are those raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities. The Court must therefore seek to ascertain in each case whether the applicant’s post entailed – in the light of the nature of the duties and responsibilities appertaining to it – direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. In accordance with the object and purpose of the Convention the Court’s interpretation of the exceptions to the safeguards afforded by Article 6 § 1 must be a restrictive one (see, in particular, §§ 32 et seq. of the Frydlender judgment and §§ 64 et seq. of the Pellegrin judgment).

In the present case the Court observes that the applicant’s post as an officer of the secret police involved by its very nature the exercise of State powers conferred on such police by public law such as was in force at the material time. In these circumstances, and even on the basis of the aforementioned restrictive interpretation of the exceptions to the applicability of Article 6, the Court cannot find it established that the proceedings which the applicant sought to institute before the Olsztyn Regional Court fell within the scope of that provision.

In the light of the above it cannot be considered that the proceedings at issue concerned the applicant's civil rights and obligations within the meaning of Article 6 § 1 of the Convention. Therefore this provision is not applicable and, consequently, a right of access to court for the applicant cannot be derived therefrom.

This part of the application is therefore incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress 
 Registrar President

STAŃCZUK v. POLAND DECISION


STAŃCZUK v. POLAND DECISION