AS TO THE ADMISSIBILITY OF
Application No. 27702/95 Application No. 28355/95
by Janusz KWASKIEWICZ by Daniel SUTARZEWICZ
against Poland against Poland
Application No. 28237/95 Application No. 28556/95
by Mieczyslaw LESNIEWSKI by Wieslaw GORCZAK
against Poland 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 applications introduced on 12 December 1994,
6 December 1994, 12 December 1994 and 20 November 1994 by Janusz
KWASKIEWICZ, Mieczyslaw LESNIEWSKI, Daniel SUTARZEWICZ and Wieslaw
GORCZAK against Poland and registered on 26 June 1995, 18 August 1995,
29 August 1995 and 18 September 1995 under files No. 27702/95,
28237/95, 28355/95 and 28556/95;
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 facts, as submitted by the applicants, may be summarised as
follows:
The applicants are four Polish citizens. J. Kwaskiewicz and D.
Sutarzewicz are born in 1934 and 1925 respectively. M. Lesniewski and
W. Gorczak are born in 1930. M. Lesniewski is a retired technician,
residing in Pruszków, the other applicants are retired engineers,
residing in Warsaw.
All of them worked at the State Railways, respectively as from
1956, 1954, 1950 and 1951. They retired from the post in the Railways'
engineering design branch respectively in December 1992, December 1990,
October 1990 and in January 1990.
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 the 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 2 of the Convention that
their right to life was breached in that they lost an entitlement to
the medical care in the railway health services.
The applicants complain under Article 4 of the Convention that
their former employer, by taking away their lawfully acquired
entitlements, disregarded entirely its obligations towards them. They
submit that their additional entitlements compensated for the low
salary and that due to the decisions concerned their work acquired
retrospectively a character of forced labour. They complain that their
retirement pensions are now lower than they would have been had they
worked elsewhere.
The applicants complain under Article 6 of the Convention that
the proceedings before the Constitutional Court were unfair in that the
representatives of the railway engineering design branch pensioners
were not allowed to present their position to the Court. They submit
that the outcome of the proceedings is unfair.
The applicants complain that the Constitutional Court did not
rule on the issue of their entitlement to medical care in the Railway
medical services.
The applicants complain under Article 14 of the Convention that
the impugned decision of the Constitutional Court amounted to
discrimination against the former employees of the Railways'
engineering branch. They submit in this respect that the Court stated
in its judgment that the special privileges of certain groups of
retired employees "were characteristic of the (socialist) system and
now they are its remainder".
THE LAW
1. In view of their similarity, the Commission finds it appropriate
to join the applications under Rule 35 of its Rules of Procedure.
2. The applicants complain under Article 2 (Art. 2) of the
Convention that their right to life was breached in that they lost an
entitlement to medical care in the Railway health services.
Article 2 (Art. 2) of the Convention, insofar as relevant, reads:
"1. Everyone's right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the
execution of a sentence of a court following his conviction
of a crime for which this penalty is provided by law."
The Commission observes that this provision of the Convention
does not guarantee a right to certain specific health services.
Moreover, in the circumstances of the case no loss of or even danger
to life or limb is involved. Therefore the situation complained of
does not amount to a breach of the applicants' right to life within the
meaning of Article 2 (Art. 2) of the Convention. It follows that this
part of the application is manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicants complains under Article 4 (Art. 4) of the
Convention that due to the decisions concerned their work acquired
retrospectively a character of forced labour.
Article 4 (Art. 4) of the Convention, insofar as relevant,
provides:
"2. No one shall be required to perform forced or compulsory
labour."
Insofar as the applicants complain that as a result of the
impugned decisions their work acquired retrospectively a character of
forced labour, even assuming that such retroactive effect of the
decision concerned could be considered, 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 of the
rights recognised in the Convention through any act, decision or event
occurring after 30 April 1993". In accordance with this limitation in
the Polish declaration, the Commission is not competent to examine
complaints relating to violations of the Convention by acts, decisions
or events that have occurred prior to this date. Therefore this
complaint is outside its competence ratione temporis and must be
rejected as being incompatible with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2).
4. The applicants complain under Article 6 (Art. 6) of the
Convention that the proceedings were unfair in that the persons whose
entitlement was at stake were not heard at the hearing before the
Constitutional Court. They were thus deprived of the opportunity to
present their arguments to the Court. They submit that the outcome of
the proceedings is unfair. The applicants complain that the
Constitutional Court did not rule on the issue of their entitlement to
the medical care in the railway medical services.
Article 6 (Art. 6) of the Convention in its relevant part 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 does 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 an influence on the applicants' entitlements, they were not and
could not be a party to the proceedings. Therefore the proceedings at
issue did not concern the applicants' civil rights and obligations
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
Thus this provision is inapplicable thereto. 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.
Insofar as the applicants' complaint can be understood as
relating to lack of access to the Constitutional Court in order to
challenge the compatibility with the Constitution of the legislation
concerned, the Commission recalls that Article 6 (Art. 6) of the
Convention does not guarantee a right of access to a court with
competence to invalidate or override a law (No. 14324/88, Rep. 14.9.91,
D.R. 69 p. 227). It follows that this complaint is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. The applicants complain under Article 14 (Art. 14) of the
Convention that the impugned decision of the Constitutional Court
amounted to discrimination against the former employees of the
Railways' engineering design branch.
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 to 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 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.
For these reasons, the Commission, unanimously,
1. DECIDES TO JOIN THE APPLICATIONS,
2. DECLARES THE APPLICATIONS INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy