AS TO THE ADMISSIBILITY OF
Application No. 25395/94
by Stanislaw REMUSZKO
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 30 November 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 27 June 1994 by
Mr. Stanislaw Remuszko against Poland and registered on 7 October 1994
under file No. 25395/94;
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 1948, is a journalist
residing in Warsaw.
On 12 January 1993 the applicant requested the Minister of
Internal Affairs to issue a certificate that the applicant had never
been an informant of the communist secret police.
On 26 January 1993 the Ministry informed the applicant that such
a certificate could only be issued on the condition that the applicant
indicated a specific purpose for which such certificate might serve.
On 9 March 1993 the applicant stated that he needed the
certificate as he was a candidate to the local municipal council and
the certificate would enhance his prospects of election.
On 24 March 1993 the Ministry informed the applicant that his
request could not be granted as he had not shown that he had any legal
interest in having the certificate issued. Upon the applicant's
enquiry the Ministry informed him on 16 April 1993 that the applicable
regulations were in the Labour Code which obliged an employer to issue
a certificate of employment upon termination of the employment
contract.
On 27 April 1993 the applicant pointed out in a letter to the
Minister that he had not requested a certificate about employment.
On the contrary, he wished that the Minister issued an certificate that
he had never been employed by the Ministry.
On 13 May 1993 the Ministry advised the applicant that there was
no legal obligation for any employer to issue a certificate that
person had not been employed by him. Thus, no certificate would be
issued as the reasons given by the applicant were insufficient.
On 26 July 1993 the applicant requested the Minister to issue the
refusal in the form of an administrative decision as provided for by
law.
On 31 August 1993 the Minister issued an interim decision to
refuse the required certificate as the applicant's request did not
comply with the applicable provisions of the Code of the Administrative
Procedure.
On 9 September 1993 the applicant appealed against this decision
to the same Minister, claiming that the Minister had previously issued
such a certificate to a high official. The applicant pointed out that
the refusal should be issued as a proper final administrative decision
on the merits.
On 20 October 1993 the Minister confirmed his previous decision
and also informed the applicant that no further appeal to the Supreme
Administrative Court was possible.
The applicant's further appeal was rejected on 18 January 1994
by the Supreme Administrative Court which found that the Minister had
acted in conformity with the law. Moreover, the appeal to the Court
was not possible as it could only deal with appeals against final
administrative decisions on the merits.
COMPLAINTS
The applicant complains under Article 6 of the Convention that
he was denied access to court in that the Minister of Internal Affairs
issued an interim decision against which there was no appeal to the
Supreme Administrative Court. He submits that the refusal to issue the
requested certificate was in breach of the principle of equality before
the law and non-discrimination as the Minister had previously issued
such a certificate to another high official.
Under Article 13 of the Convention he complains that he had no
effective remedy to complain about this breach as it was the Minister
of Internal Affairs who decided in first and second instance.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention that he was denied access to court through the fact that an
interim decision was issued against which there was no appeal to the
Supreme Administrative Court.
Article 6 (Art. 6) of the Convention states, insofar as relevant:
"In the determination of his civil rights and obligations (...)
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law."
The Commission recalls that Article 6 (Art. 6) is not applicable
to proceedings concerning the recognition of a "right" which has no
legal basis in the State in question (No. 12763/87, Dec.14.7.88,
D.R. 57 p. 216).
In the present case the applicant wished to have a certificate
issued to the effect that he had never been an informant of the
communist secret police. It is true that his right to enjoy a good
reputation may constitute a "civil right" within the meaning of Article
6 (Art. 6) of the Convention. However, even though the certificate
requested by the applicant could be conceived as a measure aimed at a
protection of his good reputation, what was at issue was not his
reputation as such, but his claim to receive a certificate. It does
not transpire from the applicant's submissions that the domestic law
provides for a right to receive such a certificate from the Minister
of Internal Affairs, nor that there are specific provisions indicating
the persons entitled to obtain such a certificate and the applicable
procedures. Thus the proceedings at issue did not concern the
applicant's civil rights and obligations within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention. Therefore this provision is
not applicable.
It follows that this part of the application is incompatible
ratione materiae within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
2. Under Article 13 (Art. 13) of the Convention the applicant
complains that he had no effective remedy at his disposal to complain
about the above as it was the Minister of Internal Affairs who in the
administrative proceedings decided in first and second instance.
However, the Commission has found that Article 6 (Art. 6) of the
Convention is inapplicable to the proceedings at issue. It follows
that the complaint under Article 13 (Art. 13) of the Convention is also
incompatible ratione materiae with the Convention.
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