FIRST SECTION
DECISION
Application no. 53626/16
Jacek BILEWICZ
against Poland
The European Court of Human Rights (First Section), sitting on 30 May 2017 as a Chamber composed of:
Linos-Alexandre Sicilianos, President,
Aleš Pejchal,
Krzysztof Wojtyczek,
Ksenija Turković,
Pauliine Koskelo,
Tim Eicke,
Jovan Ilievski, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 5 September 2016,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Jacek Bilewicz, is a Polish national, who was born in 1970 and lives in Legionowo.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant was a prosecutor at the Prosecutor General’s Office (Prokuratura Generalna).
4. On 28 January 2016 the Polish Parliament (the Sejm) enacted new legislation on the prosecution service (“the Prosecution Service Act” ‑Prawo o prokuraturze).
5. On the same date the Sejm enacted the Prosecution Service (Introductory Provisions) Act (Przepisy wprowadzające ustawę – Prawo o prokuraturze – “the Introductory Provisions Act”), which repealed the Prosecution Service Act 1985.
6. The principal provisions of both Acts entered into force on 4 March 2016.
7. In a letter of 9 March 2016 the Prosecutor General informed the applicant that, pursuant to section 36(1) and (2) of the Introductory Provisions Act, he was to be transferred, as of 14 March 2016, to a post at the Warsaw-Praga regional prosecutor’s office (prokurator Prokuratury Okręgowej). The applicant was further informed that he would retain the right to the level remuneration as acquired in his previous post of prosecutor at the Prosecutor General’s Office.
8. In a letter of 17 June 2016 the applicant informed the State Prosecutor (Prokurator Krajowy) that he had not found in his personal file the State Prosecutor’s application to the Prosecutor General for his transfer to the Warsaw-Praga regional prosecutor’s office. The applicant requested the State Prosecutor to provide him with a copy of all documentation related to his transfer, since he wished to apprise himself of the reasons for that decision.
9. In a reply dated 5 July 2016, the director of human resources of the State Prosecutor’s Office informed the applicant that under section 36(1) and (2) of the Introductory Provisions Act, prosecutors who had not been appointed to the State Prosecutor’s Office could be transferred from the Prosecutor General’s Office without an application from the State Prosecutor.
B. Relevant domestic law and practice
1. Prosecution Service Act 1985
10. The Prosecution Service Act of 20 June 1985 (as amended) set out general principles concerning the structure, functions and organisation of the prosecution service. The ordinary prosecution service consisted of prosecutors at the Prosecutor General’s Office, the appellate prosecutor’s offices, regional prosecutor’s offices and district prosecutor’s offices.
2. Prosecution Service Act 2016
11. The Prosecution Service Bill, endorsed by members of parliament from the majority party, was submitted to the Sejm on 24 December 2015. It was enacted on 28 January 2016.
12. The Prosecution Service Act provides that the Prosecutor General is the highest authority in the prosecution service. The functions of the Prosecutor General are carried out by the Minister of Justice (section 1(2)).
13. The prosecution service is composed of, inter alia, the Prosecutor General, the State Prosecutor, other deputies of the Prosecutor General and prosecutors of the ordinary units of the prosecution service (section 1(1)).
14. The Prosecutor General manages the operation of the prosecution service directly or through the State Prosecutor (the first deputy of the Prosecutor General) and other deputies of the Prosecutor General (section 13(1)). The Prosecutor General is the hierarchical superior of all prosecutors (section 13(2)).
15. Section 16 lists the ordinary units of the prosecution service as follows: the State Prosecutor’s Office (Prokuratura Krajowa); provincial prosecutor’s offices (prokuratury regionalne); regional prosecutor’s offices (prokuratury okręgowe); and district prosecutor’s offices (prokuratury rejonowe).
16. Section 101(1) provides that a prosecutor is entitled to institute proceedings before a labour court in respect of claims related to his or her service (sprawy o roszczenia ze stosunku służbowego).
3. Prosecution Service (Introductory Provisions) Act 2016 (“the Introductory Provisions Act”)
17. The Introductory Provisions Act abolished the Prosecutor General’s Office and replaced it with the State Prosecutor’s Office (section 26). Similarly, the appellate prosecutor’s offices were replaced by provincial prosecutor’s offices (prokuratury regionalne; section 29).
18. The Prosecutor General, on an application from the State Prosecutor, appoints prosecutors to the State Prosecutor’s Office from among, inter alia, the prosecutors of the former Prosecutor General’s Office, the former appellate prosecutor’s offices and the regional prosecutor’s offices (section 35(1)).
19. Section 36(1) of the Act provides as follows:
“The Prosecutor General shall transfer from the Prosecutor General’s Office prosecutors ... whom he did not appoint as prosecutors at the State Prosecutor’s Office, to other posts in the ordinary units of the prosecution service, with the right to retain the title ‘prosecutor of the former Prosecutor General’s Office’ ... and the level of remuneration acquired at the post held hitherto, being guided by their former place of residence or place of service.”
20. On an application from the State Prosecutor, the Prosecutor General appoints the prosecutors of the provincial prosecutor’s offices from among the prosecutors of the former appellate prosecutor’s offices and the regional prosecutor’s offices (section 38(1)). The Prosecutor General transfers the prosecutors of the former appellate prosecutor’s offices, whom he did not appoint to the provincial prosecutor’s offices, to other posts within the ordinary units of the prosecution service (section 39(1)).
4. The Ombudsman’s application to the Constitutional Court
21. In his application of 4 May 2016 to the Constitutional Court, the Ombudsman challenged the constitutionality of, inter alia, sections 36(1) and 38(1) of the Introductory Provisions Act. He argued that those provisions were incompatible, inter alia, with Article 45 § 1 of the Constitution, which provided for the right of access to a court.
22. The Ombudsman submitted that the abolition of the Prosecutor’s General Office and of appellate prosecutor’s offices was linked to a sort of vetting of the prosecutors who had previously held posts in those units of the prosecution service. Under the Introductory Provisions Act, the Prosecutor General, acting on an application from the State Prosecutor, was entitled to decide arbitrarily whether a prosecutor was to be appointed to a newly established unit of the prosecution service or whether he or she was to be transferred to another, lower post. In the Ombudsman’s view, the Introductory Provisions Act allowed for the transfer of prosecutors to lower posts without establishing any control mechanism providing for a check on the exercise of the Prosecutor General’s discretionary power in this respect.
5. The Supreme Court’s decision of 14 July 2016 (no. III PO 3/16)
23. On the basis of section 36 of the Introductory Provisions Act, the Prosecutor General transferred a prosecutor, M.W., from the Prosecutor General’s Office to a post at a district prosecutor’s office. Challenging that decision directly before the Supreme Court, M.W. argued that the Introductory Provisions Act excluded the possibility of applying for a judicial review of the Prosecutor General’s decision issued under section 36. She further argued that that lacuna should be filled by reference to section 75(4) of the Courts Organisation Act 2001, which entitled judges transferred to a different post without their consent to appeal to the Supreme Court against the relevant decision of the Minister of Justice.
24. In its decision of 14 July 2016 (no. III PO 3/16), the Supreme Court dismissed M.W.’s appeal as inadmissible in law. It held that neither the Prosecution Service Act nor the Introductory Provisions Act provided for the right to appeal directly to the Supreme Court against a decision taken under section 36 of the Introductory Provisions Act.
25. The Supreme Court noted that in accordance with the established case-law, a prosecutor was entitled to institute proceedings before a labour court in respect of claims related to his or her service. That rule was confirmed in section 101(1) of the Prosecution Service Act. The Supreme Court further reiterated its case-law that a prosecutor was an employee within the meaning of the Labour Code. Claims related to a prosecutor’s service or his or her dismissal from the post were civil claims which were to be asserted before the labour courts.
26. The Supreme Court held that the same rule applied to cases in which a prosecutor contested the lawfulness and appropriateness of the Prosecutor General’s decision taken under section 36 of the Introductory Provisions Act. Such a “decision” resulted in a prosecutor’s transfer to a different post, which entailed, in substance, a change in the conditions of service in respect of the place of service and the type of duties to be carried out. The Supreme Court also noted that section 36 of the Introductory Provisions Act contained the criteria of “the place of residence” and “the place of service”. A labour court was thus able to verify whether those criteria had been duly taken into account in any change in the conditions of service. In conclusion, the Supreme Court held that the Prosecutor General’s decision under section 36 of the Introductory Provisions Act could be contested before the labour courts in accordance with the general rule concerning those courts’ jurisdiction over claims related to a prosecutor’s service, as set out in section 101(1) of the Prosecution Service Act 2016.
COMPLAINTS
27. The applicant complained under Article 6 § 1 of the Convention that neither the Prosecution Service Act nor the Introductory Provisions Act provided for the right to bring judicial proceedings against a decision transferring a prosecutor to a lower post pursuant to section 36(1) and (2) of the Introductory Provisions Act. He submitted that the decision in his case had affected his civil rights within the meaning of Article 6 § 1.
In the applicant’s view, the arbitrary decision on his transfer had been taken in connection with a superficial reform of the prosecution service. The reform had also been aimed at vetting and demoting certain prosecutors. Despite his requests, the applicant had not been provided with any reasons justifying his demotion, which had prevented him from identifying legal remedies to contest the impugned decision. He maintained that he had been demoted because of his involvement in high-profile investigations.
28. The applicant further complained that he had been deprived of an effective remedy with regard to his demotion. The lack of an effective remedy had further entailed a breach of his right to respect for his private life and the right to property. He alleged that the demotion had damaged his reputation and entailed the freezing of his remuneration. The applicant relied on Article 13 in conjunction with Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.
THE LAW
A. Complaint under Article 6 § 1 of the Convention
29. The applicant complained under Article 6 § 1 that he had had no right to institute court proceedings against the Prosecutor General’s decision, taken under section 36 of the Introductory Provisions Act, transferring him to a lower post.
30. In his view, parliament had intentionally adopted rules allowing the arbitrary and immediate demotion of prosecutors without the obligation to provide reasons. His demotion should be considered as an attack on the independence of prosecutors. In addition, his transfer to a lower post was a more severe consequence than any of the applicable disciplinary sanctions, except for removal from office.
31. The Court is not required to determine the issue of applicability of Article 6 § 1 to the present case as this complaint is in any event inadmissible for the following reasons.
32. It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see, among other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69, 25 March 2014).
33. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV). It should be emphasised that the Court is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, § 69, ECHR 2010).
34. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others, cited above, § 66).
35. However, as indicated above, there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, in accordance with the “generally recognised rules of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his or her disposal.
36. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004, and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006‑II). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Akdivar and Others, cited above, § 71, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009).
37. The applicant alleged that he had not had the right to contest before a court the Prosecutor General’s decision taken under section 36 of the Introductory Provisions Act, whereby he had been transferred to a lower post within the prosecution service (see paragraph 27 above).
38. However, the Supreme Court examined a case of a prosecutor who had been affected by the same measure as the applicant and had claimed that judicial review of the Prosecutor General’s decisions had been excluded. In that case, the Supreme Court found that a decision taken under section 36 of the Introductory Provisions Act, which entailed a change in the conditions of service, could be reviewed by a labour court in accordance with the general rule set out in section 101(1) of the Prosecution Service Act (see paragraph 26 above). That provision stipulated that the labour courts had jurisdiction to hear claims related to a prosecutor’s service.
39. In consequence, the Court finds that the applicant failed to have recourse to a remedy provided by the domestic law as indicated by the Supreme Court. The applicant did not submit any arguments with regard to alleged lack of effectiveness or adequacy of the impugned remedy. The Court considers that it would be inconsistent with the subsidiarity principle to accept his application for substantive examination without requiring him first to submit the substance of his Convention claim to the domestic authorities (see Vučković and Others, cited above, § 90).
40. This ruling is without prejudice to the applicant’s right to lodge a fresh application under Article 34 of the Convention if he is unable to obtain appropriate redress in domestic proceedings instituted under section 101(1) of the Prosecution Service Act (see, mutatis mutandis, Pikielny and Others v. Poland, no. 3524/05, § 62, 18 September 2012).
41. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Complaints under Article 13 in conjunction with Article 6 § 1 and Article 8 of the Convention, and Article 1 of Protocol No. 1 to the Convention
42. The applicant complained that he had been deprived of an effective remedy with regard to his demotion. He alleged that he had had no possibility to institute any proceedings, be it judicial or before a higher prosecutor, to challenge the decision to demote him.
43. Invoking Article 8 of the Convention, the applicant alleged that his demotion had damaged his professional standing and his reputation. In addition, it had prevented him from seeking promotion and excluded him from participation in the prosecution service’s self-governing bodies. He further alleged an arbitrary violation of his rights under Article 1 of Protocol No. 1 to the Convention. He maintained that his demotion had resulted in the freezing of his remuneration and interfered with his legitimate expectation to receive a higher remuneration in line with increasing seniority in his post.
44. The Court reiterates that in so far as the Convention right asserted by the applicant is a “civil right” – and the Court assumes that this is the case ‑ Article 6 § 1 is deemed to constitute a lex specialis in relation to Article 13. Its safeguards, implying the full panoply of a judicial procedure, are stricter than, and absorb, those of Article 13 (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000‑XI, and Menesheva v. Russia, no. 59261/00, § 105, ECHR 2006‑III). However, the Court has found above that the applicant did not make use of the available domestic remedy with regard to his complaint under Article 6 § 1 of the Convention.
45. The applicant further complained that the Prosecutor General’s decision had resulted in a breach of his rights under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention. However, the Court considers that the alleged violations have to be regarded as a consequence of the Prosecutor General’s decision, which the applicant has not contested before a labour court in the first place.
46. For these reasons, this part of the application must also be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 22 June 2017.
Abel CamposLinos-Alexandre Sicilianos
RegistrarPresident
Full & Egal Universal Law Academy