AS TO THE ADMISSIBILITY OF
Application No. 25033/94
by Krzysztof MISIORNY
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 July 1997, 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
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
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 1 March 1994 by
Krzysztof MISIORNY against Poland and registered on 30 August 1994
under file No. 25033/94;
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 applicant, a Polish citizen born in 1966, is a policeman
residing in Racot.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
In March 1993 the applicant obtained a negative assessment of his
service.
On 30 September 1993 the Koscian District Police Commander
(Komendant Rejonowy Policji) issued a further assessment of the
applicant's service, stating therein, inter alia, that the applicant's
work was barely satisfactory; that since the previous assessment in
March 1993 there was a certain improvement in his performance of
preventive tasks, but no tangible amelioration with regard to
operational work. It was further stated that the assessment did not
amount to a disapproval of the applicant's work.
On 15 October 1993 the applicant lodged an appeal with the Leszno
Regional Police Commander (Komendant Wojewódzki Policji), claiming that
the opinion was inaccurate and unfair; that it contained general and
vague statements; that it did not sufficiently refer to any concrete
facts and that it lacked objectivity.
On 16 November 1993 the Regional Police Commander upheld the
assessment, considering that it did not contain a negative evaluation
of the applicant's work and that the District Commander was objective
in issuing it. The applicant filed an appeal with the Supreme
Administrative Court (Naczelny S*d Administracyjny), claiming that the
decision should be quashed as not being in conformity with the law.
He submitted that the Regional Police Commander in its decision to
uphold the assessment failed to refer to the facts which had served as
a basis for his decision and to indicate the evidence on which he had
relied.
On 28 January 1994 the Supreme Administrative Court rejected the
applicant's appeal, considering that assessment of police service did
not constitute an administrative decision within the meaning of the
Code of Administrative Procedure and therefore no appeal to the Court
lay against it.
Relevant domestic law
Under the Police Act members of the police force are subject to
periodical assessment of their service. The assessment is subject to
an appeal to a hierarchically higher superior. A policeman may
optionally be transferred to a lower post if a failure to comply with
the professional obligations is confirmed by two subsequent
assessments between which at least six months have elapsed. A
policeman may optionally be dismissed from service if he fails to
comply with his professional obligations and this is confirmed by two
subsequent assessments between which at least six months have elapsed.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
that he was deprived of access to court in that no appeal to the
Supreme Administrative Court lay against the assessment of his service.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he was deprived of access to court as regards the
assessment of his service.
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 and public hearing ... by an
independent and impartial tribunal established by law."
The Commission recalls that according to the Convention organs'
case-law disputes relating to the recruitment, careers and termination
of service of public servants are, as a general rule, outside the scope
of Article 6 para. 1 (Art. 6-1) of the Convention (Eur. Court HR, Massa
v. Italy judgment of 4 August 1993, Series A no. 265-B, p. 20, para.
26; Neigel v. France judgment of 17 March 1997, Reports 1997-II, No.
32, para. 12).
In the present case the applicant contested the accuracy of the
statements contained in the assessment of his service. It might be
reasonably argued that the actual contents of the assessment might have
affected the prospects of the applicant's promotion. However, the
Commission observes that it was clearly stated in the assessment that
it should not be considered as being a negative one. The Commission
considers that the assessment related only to the applicant's "career".
The Commission further observes that there is no indication that under
the Police Act the applicant's financial position as regards his
salary was in any way affected by it as it did not contain disapproval.
Moreover, the Commission observes that the applicant did not submit any
financial claims in the domestic proceedings. The Commission concludes
that the proceedings in question did not have any direct pecuniary
consequences for the applicant and thus cannot be regarded as
concerning the determination of civil rights and obligations within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Therefore,
this provision is not applicable to the proceedings concerned and,
consequently, the right of access to court for the applicant cannot be
derived from this provision.
It follows that the application is incompatible ratione materiae
with the Convention within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
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
Full & Egal Universal Law Academy