AS TO THE ADMISSIBILITY OF
Application No. 24413/94
by Aleksandra JANUSZEWSKA
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 12 October 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 5 November 1993
by Aleksandra Januszewska against Poland and registered on 16 June 1994
under file No. 24413/94;
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 facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant, a Polish citizen born in 1928, is a retired judge
residing in Lódz.
On 16 September 1991 the applicant requested the President of the
Lódz Regional Court to institute proceedings enabling her to take
earlier retirement, as she had to take care of her seriously ailing
mother. On 10 October 1991 the President of Poland granted her request
as the applicant was eligible for early retirement.
On 2 January 1992 the applicant applied for reinstatement to her
previous post as her mother's health had improved. She contended that
the applicable legal provisions obliged the President of the Lódz
Regional Court to transmit her application to the National Judicial
Council and that the Council was under a legal obligation to transmit
her application to the President of Poland for reappointment. On 4
January 1992 the President of the Lódz Regional Court sent her
application to the National Judicial Council.
On 19 February 1992 the National Judicial Council rejected the
application. The Council considered that, contrary to the applicant's
opinion, the applicable procedure in her case was the same as for any
lawyer eligible to become a judge for the first time. Thus, the
application should be submitted to the General Assembly of the Judges
of the Lódz Regional Court for assessment of the candidate.
On 4 April 1992 the General Assembly of the Judges of the Lódz
Regional Court, in the applicant's absence, considered the applicant's
request for reinstatement and decided not to present her to the
National Judicial Council as a suitable candidate for a judicial post.
On 16 April 1991 the applicant sent a letter to the Council,
claiming that the National Judicial Council had erred in law in
deciding on the applicable procedure. The applicant reiterated that
the Council was under a legal obligation to submit her application to
the President in order for her to be reappointed as a judge to the same
post as she had held before, or an equivalent one.
On 24 April 1992, 20 May 1992 and 9 July 1992 the National
Judicial Council reiterated its position in its letters to the
applicant.
On 26 June 1992 the applicant filed a complaint to the Supreme
Administrative Court about the failure of the Council to take an
administrative decision to present her application to the President.
On 26 August 1992 the Supreme Administrative Court declined to
entertain the applicant's complaint as it lacked jurisdiction. The
Court considered that decisions of the National Judicial Council in
matters concerning appointments or reappointments of judges were not
administrative decisions against which an appeal lay, due to the
special nature of the tasks of the Council.
On 26 September 1992 the applicant filed an application for leave
for an extraordinary appeal to the Minister of Justice. She contended
that the applicable laws guaranteed her a right to be reappointed to
her previous post or an equivalent one. She submitted that the
impugned decision denied her access to court.
On 6 May 1993 the Minister of Justice refused leave for appeal
as the contested decision did not manifestly infringe applicable laws.
Thus, the necessary requirement for granting leave was not complied
with, since "even assuming that (the applicant's) legal opinion was
correct, the applicable provisions had been interpreted in (her) case
in a different manner." ("Jest to, nawet przy uznaniu Pani pogl*du
prawnego za prawidlowy, odmienna interepretacja przepisów maj*cych
zastosowanie w niniejszej sprawie.")
COMPLAINTS
The applicant complains under Article 6 of the Convention that
the refusal of leave for an extraordinary appeal denied her access to
court. She also complains that the proceedings have been unfair as a
whole and clearly in breach of numerous applicable provisions of
domestic law.
THE LAW
1. Insofar as the applicant's complaints relate to a period prior
to 1 May 1993, the Commission recalls that Poland recognised the
competence of the Commission to receive individual applications "from
any person, non-governmental organisation or group of individuals
claiming to be a victim of a violation by Poland of the rights
recognised in the Convention through any act, decision or event
occurring after 30 April 1993".
It follows that this part of the application 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).
2. The applicant complains under Article 6 (Art. 6) of the
Convention that the decision of the Minister of Justice of 6 May 1993
refusing her request for leave for an extraordinary appeal denied her
access to court.
The Commission observes that Article 6 (Art. 6) of the Convention
is not applicable to the disputes concerning appointments to the
judiciary (see No. 9877/82, Dec. 1.3.83, D.R. 32 p.258). Moreover,
Article 6 (Art. 6) does not guarantee a right to institute
extraordinary appeal proceedings and such proceedings also do not fall
under the scope of this provision. It follows that this complaint is
incompatible ratione materiae 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.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy