AS TO THE ADMISSIILITY OF
Application No. 27701/95
by Antoni BERNATEK and 43 others
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 December 1994
by Antoni BERNATEK and 43 others against Poland and registered on 26
June 1995 under file No. 27701/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, a group of 44 persons, listed in the Annex, are
members of the branch of the "Solidarnosc" Trade Union in the Railways'
Engineering Design Office in Lublin. They were previously employed by
that Office but are now retired.
The facts of the case, as submitted by the applicants, may be
summarised as follows:
On 1 January 1992 the Railways' engineering design branch was
detached from the general structure of the Railways and given a
separate status.
On 20 June 1992 the Act on the Entitlement to Public Transport
Free of Charge or at Reduced Prices was enacted. It provided in
Article 7 that entitlements to the tickets at reduced prices were in
principle abolished, with certain exceptions only. It further
invalidated relevant provisions of numerous industrial collective
agreements, concerning many categories of civil servants. Its Article
8 provided that the public transport companies could maintain such
entitlement for their employees and retired employees, should they wish
to do so.
On 12 January 1993 the State Railways' Director General issued
an Order No. 4, which maintained the entitlement to reduced prices of
the tickets for its retired employees, but took this entitlement away
from the retired employees of the Railways' engineering design branch.
The Order further took away the entitlement to use the Railways'
medical services for this group of retired employees in view of the
fact that in 1991 this branch had been detached from the general
structure of the Railways and given a separate status.
On 17 November 1993 the Ombudsman requested that the
Constitutional Court (Trybunal Konstytucyjny) examine whether Articles
7 and 9 of the Act on the Entitlement to Public Transport Free of
Charge or at Reduced Prices were compatible with the Constitution, in
particular its Articles 1, 67 paras. 1 and 2 and 70 paras. 1 and 2 (1).
The Ombudsman further requested that the Court determine whether the
Order No. 4 of 12 January 1993 was compatible with certain statutes and
in particular with Article 8 of the Act on the Entitlement to Public
Transport Free of Charge or at Reduced Prices, and with Articles 1, 67
paras. 1 and 2 and 70 paras. 1 and 2 (1) of the Constitution. The
National Committee of the "Solidarnosc" Trade Union submitted a similar
request.
On 21 June 1994 the Constitutional Court held a hearing. The
Court heard the representatives of the Ombudsman and of the
"Solidarnosc" Trade Union, of the Parliament, of the Ministry of
Transport and of the Prosecutor General.
In a judgment of 28 June 1994 the Constitutional Court declared
that the impugned provisions of the Act on the Entitlement to Public
Transport Free of Charge or at Reduced Prices and of the Director
General's Order No. 4 of 12 January 1993 were compatible with the
Constitution.
Relevant domestic law
Article 33 of the Polish Constitution of 1952 which remains in
force by virtue of Article 77 of the Constitutional Act of
17 October 1992 provides that the Constitutional Court gives rulings
on the conformity of legislation with the Constitution. It also
promulgates binding interpretations of law.
Articles 22 and 23 of the Constitutional Court Act provide an
exhaustive list of institutions who can request the Court to decide
whether a particular regulation is compatible with the Constitution or
with statutes. This list includes the President, the Presidium of the
Parliament, the parliamentary commissions, a group of fifty members of
the Parliament, the Presidium of the Senate, the commissions of the
Senate, a group of thirty senators, the State Tribunal, the Government,
the Prime Minister, the Ombudsman, the President of the Highest Audit
Chamber, the President of the Supreme Court, the President of the
Supreme Administrative Chamber and the General Prosecutor. Such
requests can also be submitted by the municipalities and national
headquarters of certain associations.
There is no individual constitutional complaint to the Court
under Polish law as a remedy against decisions of the courts or
administrative authorities, nor can individual citizens submit requests
for rulings on the compatibility of laws with the Constitution.
COMPLAINTS
The applicants complain under Article 6 of the Convention that
the proceedings before the Constitutional Court were unfair in that the
Court failed in its duty to examine carefully the motions of the
Ombudsman and of the National Commission of the "Solidarnosc" Trade
Union and wrongly interpreted relevant legal provisions. As a result,
its judgment was wrong and not in conformity with the law. The
applicants complain that the judgment of the Constitutional Court
deprived them of access to court in that they cannot any more claim
their entitlements before the courts.
The applicants complain under Article 14 of the Convention that
the legislation concerned amounts to discrimination against the former
employees of the Railways' engineering design branch as their lawfully
acquired entitlements were taken away from them whereas the other
retired employees of the Railways retained theirs.
The applicants complain under Article 1 of Protocol No. 1 to the
Convention that their right to peaceful enjoyment of their property was
breached by the judgment of the Constitutional Court which sanctioned
the taking away of their lawfully acquired entitlements.
THE LAW
1. The applicants complain under Article 6 (Art. 6) of the
Convention that the proceedings before the Constitutional Court were
unfair in that the Court failed in its duty to examine carefully the
motions of the Ombudsman and of the National Commission of the
"Solidarnosc" Trade Union and wrongly interpreted relevant legal
provisions. The applicants complain that the judgment of the
Constitutional Court deprived them of access to court in that they
cannot any more claim their entitlements before the courts.
Article 6 (Art. 6) of the Convention, insofar as relevant, reads:
"1. In the determination of his civil rights and obligations...
everyone is entitled to a fair ... hearing ... by an independent
and impartial tribunal ..."
The Commission recalls that the applicability of Article 6
(Art. 6) of the Convention depends on whether the proceedings at issue
concern the determination of "civil rights and obligations". The
Commission observes that under Polish law an individual or a local
branch of trade unions do not have standing in the proceedings before
the Constitutional Court. In the present case, whereas it is true that
the outcome of the proceedings had a bearing on entitlements of the
persons represented by the applicant trade union, they were not a party
to the proceedings. Therefore the proceedings at issue did not concern
their civil rights and obligations within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention. Thus this provision is
inapplicable to these proceedings.
As regards the complaint of lack of access to court in
consequence of the Constitutional Court's judgment, the Commission
recalls that, whereas it is true that the concept of "civil rights"
within the meaning of Article 6 (Art. 6) of the Convention is
autonomous to a certain extent, the Commission cannot, in interpreting
this provision, create substantive rights which have no basis under
domestic law (No. 9310/81, Dec. 16.10.85, D.R. 44 p. 13).
In the present case, the Constitutional Court having examined the
motions of the Ombudsman and the National Commission of the
"Solidarnosc" Trade Union declared that the impugned provisions of the
Act on the Entitlement to Public Transport Free of Charge or at Reduced
Prices and of the Director General's Order No. 4 of 12 January 1993,
in that they had taken away the entitlements in question from the
retired employees of the Railways' engineering design branch, were
compatible with the Constitution. Consequently, it became clear that
under the domestic law the applicant trade union cannot claim this
entitlement before the courts. Accordingly, the right of access to
court cannot be derived from Article 6 (Art. 6) of the Convention.
It follows that this part of the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicants complain under Article 14 (Art. 14) of the
Convention that the legislation concerned amounts to discrimination
against the former employees of the Railways' engineering branch as
their lawfully acquired entitlements were taken away from them whereas
the other retired employees of the Railways retained theirs.
The Commission recalls that Article 14 (Art. 14) has no
independent existence, but only complements the other substantive
provisions of the Convention and its Protocols, since it has effect
solely in relation the rights and freedoms safeguarded by those
provisions (see Eur. Court HR, Inze v. Austria judgment of 28 October
1987, p. 17, para. 36). The Commission considers that no separate issue
arises under this provision of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicants complain under Article 1 of Protocol No. 1 (P1-1)
to the Convention that their right to peaceful enjoyment of their
property was breached by the judgment of the Constitutional Court which
sanctioned the taking away of their lawfully acquired entitlements.
Article 1 of Protocol No. 1 (P1-1) to the Convention in its
relevant part reads:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law."
It is true that the entitlements in question may be considered
as property rights, given that they represent a certain pecuniary
value.
The Commission nevertheless recalls that Poland ratified Protocol
No. 1 to the Convention on 10 October 1994. In accordance with the
generally recognised principles of international law, the Commission
is not competent to examine complaints relating to alleged violations
of the Protocol by acts, decisions or events that have occurred prior
to this date.
The Commission recalls that in the present case the judgment of
the Constitutional Court was pronounced on 28 June 1994. The Court
found in this judgment that the legislation passed on 20 June 1992 and
on 12 January 1993 was not incompatible with the Constitution. These
acts all occurred prior to 10 October 1994, i.e. the date of the
ratification by Poland of Protocol No. 1 to the Convention. Insofar as
the applicants' complaint might be understood as implying that these
decisions created a continuing situation of deprivation of their
property rights, the Commission recalls that deprivation of property
rights is in principle an instantaneous act and does not produce a
continuing situation of "deprivation of property" (No. 7742/76,
Dec. 4.7.78, D.R. 14 p. 146; No. 26078/94, Dec. 17.5.95, unpublished).
It follows that this complaint is outside the competence ratione
temporis of the Commission and therefore incompatible with the
provisions of the Convention within the meaning of Article 27 para. 2
(Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
ANNEX
Applicants in Application No. 27701/95, introduced on
28 December 1994
1. Antoni Bernatek, born in 1930, residing in Lublin.
2. Józef Bialas, born in 1923, residing in Lublin.
3. Zofia Josko, born in 1938, residing in Lublin.
4. Edward Kolcon, born in 1937, residing in Lublin.
5. Henryk Kowalczyk, born in 1928, residing in Lublin.
6. Zdzislaw Olesinski, born in 1925, residing in Lublin.
7. Eugeniusz Rzepiela, born in 1932, residing in Lublin.
8. Janina Rutkiewicz, born in 1926, residing in Lublin.
9. Helena St*pniak, born in 1924, residing in Lublin.
10. Zofia Tr*bka, born in 1937, residing in Lublin.
11. Genowefa Kostrzewska, born in 1930, residing in Lublin.
12. Zofia Krupa, born in 1936, residing in Lublin.
13. Lucyna Jablonska, born in 1946, residing in Lublin.
14. Barbara Michalak, born in 1937, residing in Lublin.
15. Wieslawa Górna, born in 1931, residing in Lublin.
16. Zofia Turowska, born in 1934, residing in Lublin.
17. Aleksander Nowicki, born in 1936, residing in Lublin.
18. Henryk Z*bek, born in 1928, residing in Lublin.
19. Halina Piskiewicz, born in 1931, residing in Lublin.
20. Wojciech Szajner, born in 1933, residing in Lublin.
21. Genowefa Hanys, born in 1919, residing in Lublin.
22. Antoni Kozak, born in 1914, residing in Lublin.
23. Nasilenko Wladyslaw, born in 1920, residing in Lublin.
24. Stanislawa Por*ba, born in 1917, residing in Lublin.
25. Natalia Rek, born in 1915, residing in Lublin.
26. Edward Smalec, born in 1924, residing in Trawniki.
27. Leokadia Maliszewska, born in 1926, residing in Lublin.
28. Henryk Dobrowolski, born in 1921, residing in Lublin.
29. Janusz Link, born in 1923, residing in Lublin.
30. Irena Stankiewicz, born in 1926, residing in Lublin.
31. Stanislaw Dziwisinski, born in 1923, residing in Lublin.
32. Krystyna Kozlowska, born in 1936, residing in Lublin.
33. Krystyna Lukomska, born in 1932, residing in Lublin.
34. Jerzy Ozimkiewicz, born in 1943, residing in Lublin.
35. Mieczyslaw Skowronski, born in 1929, residing in Lublin.
36. Witold Sochan, born in 1935, residing in Lublin.
37. Gustaw Teresinski, born in 1936, residing in Lublin.
38. Adam Horszczaruk, born in 1934, residing in Swidnik.
39. Halina Dys, born in 1950, residing in Lublin.
40. Edward Czechowski, born in 1941, residing in Lublin.
41. Tomasz Plechawski, born in 1936, residing in Lublin.
42. Jerzy Sady, born in 1929, residing in Lublin.
43. Józef Swircz, born in 1935, residing in Lublin.
44. Stanislaw Skobalski, born in 1941, residing in Lublin.
Full & Egal Universal Law Academy