AS TO THE ADMISSIBILITY OF
Application No. 29806/96
by Ryszard RYBICKI
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 27 June 1995 by
Ryszard RYBICKI against Poland and registered on 15 January 1996 under
file No. 29806/96;
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 1949, resides in Ustrzyki
Dolne.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
On 8 August 1993 the applicant, who was unemployed at this time,
requested the Krosno Regional Labour Office (Rejonowy Urz*d Pracy) to
grant a permission to employ a Ukrainian citizen N.B. as a driver and
unskilled worker in the private company which the applicant intended
to found. He submitted that he would not be able to employ a Polish
citizen as the labour costs of the latter would render the company
economically unviable, whereas the salary to be paid to the Ukrainian
citizen could be significantly lower.
On 31 August 1993 the Krosno Regional Labour Office refused to
grant the permit on the grounds that there were twenty-four unemployed
Polish citizens having the qualifications required by the applicant
registered with the Labour Office in Ustrzyki. In view thereof, the
employment of a foreigner would be incompatible with the necessity to
protect the local labour market, in particular as the local
municipality was particularly affected by the structural unemployment.
The applicant lodged an appeal with the Warsaw Labour Office
(Krajowy Urz*d Pracy) submitting that the refusal to employ N.B. would
make it impossible for him to start his own business as he would be
unable to pay the salary and the social security of a Polish employee.
On 11 October 1993 the Warsaw Labour Office upheld the decision
of the Regional Labour Office, considering that it was in conformity
with the law.
On 20 October 1993 the Krosno Municipal Appeals Board (Kolegium
Odwolawcze przy Sejmiku Samorz*dowym) dismissed the applicant's request
to set aside the decision of the municipal authorities of 1986 by which
the applicant had been obliged to pay the municipal tax, considering
that the decision was lawful and had been duly served on the applicant.
The applicant filed an appeal with the Supreme Administrative
Court (Naczelny S*d Administracyjny). He submitted that the refusal
to employ N.B. would make it impossible for him to start his own
business as he would be unable to pay the salary and the social
security of a Polish employee.
On 5 May 1994 the Supreme Administrative Court dismissed the
applicant's appeal against the decision of the Krosno Municipal Appeals
Board of 20 October 1993, finding that the decision concerned was
lawful. Subsequently the Minister of Justice on 30 November 1994,
10 March and 23 October 1995 refused to lodge an extraordinary appeal
with the Supreme Court against this decision. The Ombudsman likewise
refused to file such an appeal on 25 July 1994, 9 January, 3 February
and 5 May 1995.
On 6 December 1994 the Supreme Administrative Court dismissed the
applicant's appeal against the decision of the Warsaw Labour Office of
11 October 1993. The Court first observed that its scope of
jurisdiction was limited to the examination of the lawfulness of
administrative decisions. The Court noted that under Article 50 of the
Law on Employment the local labour offices, when deciding on granting
a permission to employ a foreigner, had to consider how such permission
would affect the situation on the local labour market. They further
had to take into consideration the relevant opinion of the local
Employment Board. In the present case that opinion was negative, there
were twenty-four registered unemployed persons in Ustrzyki and the
municipality was particularly affected by the structural unemployment.
In view thereof, the refusal was in compliance with the law. The Court
further observed that the granting of the permit was not obligatory and
was within the discretionary power of both authorities to grant or to
refuse it, regard being had not only to the applicant's arguments but
also to all relevant aspects of the case, including the public
interest. The considerations of public interest argued against
granting the permission to employ an unskilled foreign citizen at the
time of widespread unemployment. The authorities, in their examination
of the case, were not arbitrary and duly considered all circumstances
of relevance.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the
Convention that the refusal to employ the Ukrainian citizen amounted
to a breach of his right to a fair hearing in that it rendered his
enterprise economically unviable as he could not afford to pay higher
wages and social security to a Polish employee.
The applicant complains under Article 6 para. 1 of the
Convention about the outcome of the proceedings which ended with the
judgment of the Supreme Administrative Court of 5 May 1994, and about
subsequent refusals of the Minister of Justice and the Ombudsman to
lodge an extraordinary appeal on his behalf.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the refusal to employ the Ukrainian citizen amounted
to a breach of his right to a fair hearing.
Article 6 para. 1 (Art. 6-1) in its relevant part reads:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair ... hearing..."
The Commission must ascertain whether Article 6 para. 1
(Art. 6-1) of the Convention is applicable in the present case and
whether there was a dispute over a "right" which can be said, at least
on arguable grounds, to be recognised under domestic law. In order to
fall within the scope of Article 6 (Art. 6), the dispute must be
genuine and serious; it may relate not only to the actual existence of
a right but also to its scope and the manner of its exercise. Finally,
the result of the proceedings must be directly decisive for the right
in question (Eur. Court HR, Kerojärvi v. Finland judgment of
19 July 1995, Series A no. 322, p. 12, para. 32).
However, the Commission recalls that Article 6 (Art. 6) of the
Convention 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 obtain a permission
to employ a Ukrainian citizen in his private company. Under Article 50
of the Law on Employment the competent authorities had to consider how
such a permission, if granted, would affect the situation on the local
labour market and to take into account the relevant opinion of the
local Employment Board. In the applicant's case the authorities
considered that the permission could not be granted in view of the
significant unemployment in his municipality and the opinion of the
Board was unfavourable. When deciding on granting or refusing the
permission the authorities exercised their administrative discretion
and were under no obligation to issue a permission. Thus, it could not
be considered, even on arguable grounds, that the proceedings at issue
concerned 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 to the proceedings concerned.
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.
2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention about the outcome of the proceedings which ended with the
judgment of the Supreme Administrative Court of 5 May 1994, and about
subsequent refusals of the Minister of Justice and the Ombudsman to
lodge an extraordinary appeal on his behalf.
As regards the proceedings before the Supreme Administrative
Court, the Commission is not required to decide whether or not the
facts alleged by the applicant disclose any appearance of a violation
of Article 6 (Art. 6) of the Convention as the judgment complained of
was pronounced on 5 May 1994, i.e. more than six months before the date
on which the application was introduced. The applicant has not
therefore lodged his application within the six months' time-limit
provided for in Article 26 (Art. 26) of the Convention.
It follows that this complaint is inadmissible within the meaning
of Article 27 para. 3 (Art. 27-3) of the Convention.
Insofar as the applicant complains about the refusals to lodge
an extraordinary appeal, the Commission observes that the right to use
extraordinary legal remedies is not included among the rights and
freedoms guaranteed by the Convention.
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.
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