AS TO THE ADMISSIBILITY OF
Application No. 35187/97
by Stanislaw SZUMILAS
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 July 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
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 July 1995 by
Stanislaw Szumilas against Poland and registered on 6 March 1997 under
file No. 35187/97;
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 1926, is a retired
internal security officer, residing in Warsaw.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
Particular circumstances of the case
On 8 March 1993 the Veterans' and Persecuted Persons' Office
(Urz*d do Spraw Kombatantów i Osób Represjonowanych) instituted
ex officio proceedings pursuant to the February 1991 Act on Veterans
and Persecuted Persons in order to verify whether under this
legislation the applicant was entitled to maintain his veteran status
which he had been granted in 1974. The applicant was asked to furnish
information relating to the grounds on which he had acquired this
status on the basis of the 1982 Veterans' Act.
By a decision of 16 May 1993 the Director of the Veterans' and
Persecuted Persons' Office (Kierownik Urz*du ds. Kombatantów i Osób
Represjonowanych) took away the applicant's veteran status. This
decision was taken in accordance with Article 25 read together with
Article 21 of the Act on Veterans and Persecuted Persons of February
1991 which provided, inter alia, that a person who had served in the
former internal security services ("aparat bezpieczenstwa publicznego")
was not entitled to veteran status. As between 1945 and 1969 the
applicant had served first in the Internal Security Bureau (Urz*d
Bezpieczenstwa) and, afterwards, in the Internal Security Service
(Sluzba Bezpieczenstwa), he fell into the category of persons who were
to be deprived of this status.
The applicant lodged an appeal against this decision with the
Supreme Administrative Court (Najwyzszy S*d Administracyjny),
submitting that he had not obtained veteran status due to the fact that
he had served in the anti-Nazi resistance in Pas-de-Calais in France.
He also submitted that he had served the independent State and had
never departed from moral principles or from rule of law. He further
argued that the impugned decision was not in conformity with the law.
In its reply the Veterans' and Persecuted Persons' Office
submitted that the circumstances relied on by the applicant as to his
service were of no relevance to the case. It was not in dispute
between the parties that the applicant had served in the internal
security forces. As under the legislation of February 1991 persons
having served in the security services lost their veteran status, the
decision contested by the applicant was lawful.
In a judgment of 14 June 1995 the Supreme Administrative Court
dismissed the appeal. The Court considered that in the present case
it was not in dispute between the parties that he had served in the
internal security forces. The relevant provisions of the 1991
Veterans' Act provided that persons having served in the former
internal security services were not eligible to acquire veteran status
and that those who had acquired it were to be stripped thereof,
regardless of their function and grade within those services. This
interpretation had been reinforced by the Constitutional Court
(Trybunal Konstytucyjny) which in its judgment of 15 February 1994 had
ruled that service in the former internal security services, in the
light of the latter's activities directed against independence
organisations, had to be assessed negatively, regardless of the actual
status of persons having served therein. Thus, under the relevant
legislation the very fact of the applicant's service in the internal
security forces must have entailed the loss of his veteran status. The
Court concluded that the impugned decision was in conformity with the
law.
Relevant domestic law
The February 1991 Act on Veterans and Persecuted Persons took
away entitlement to the veteran status accorded by virtue of the
Veterans' Acts of 1982 from certain categories of persons who had
served in the 1940s and 1950s in various organisations and State organs
whose purpose was to combat the political opponents of the communist
regime. In particular, Article 25 of the Act provides, inter alia,
that a person who had served in the internal security services ("aparat
bezpieczenstwa publicznego") was not entitled to acquire veteran
status, and those persons who had acquired it were to lose it.
Under the Veterans' Acts of 1982, which was subsequently replaced
by the February 1991 Act on Veterans and Persecuted Persons, veteran
status gives rise to various special employee and social insurance
entitlements. The periods of veteran service are taken into account
in calculating the periods giving rise to seniority. The same periods
are multiplied by two in calculating periods giving rise to a
retirement pension. The veterans who remain in employment are entitled
to ten days' additional paid leave per year. The veterans are entitled
to retire earlier than other employees: women at the age of 55, and men
at the age of 60, if they have satisfied another requirement for the
acquisition of a retirement pension, i.e. if they have worked for
periods set out in the Retirement Pensions Act. The retired veterans
are further entitled to the special veterans' benefit, paid together
with their retirement pension as a certain fixed sum.
Article 26 of the Veterans' Act provides that persons who have
lost their veteran status retain their social insurance benefits to
which they are entitled pursuant to the generally applicable social
insurance laws, in particular the laws governing retirement pensions.
Pursuant to Article 25 para. 4 of the February 1991 Act, if a decision
is appealed against to the Supreme Administrative Court, the rights
stemming from the veteran status are suspended until a final judgment
is taken.
COMPLAINTS
The applicant complains that he was deprived of his veteran
status. He submits that by the impugned decision he was in fact "held
guilty of an offence which did not constitute a criminal offence under
national or international law at the time when it was committed". He
invokes Article 7 of the Convention.
THE LAW
Insofar as the applicant, relying on Article 7 (Art. 7) of the
Convention, could be understood as complaining that the result of the
above proceedings amounted to an interference with his property rights
as he was deprived thereby of certain social insurance benefits of a
pecuniary character, the Commission has examined this complaint under
Article 1 of Protocol No. 1 (P1-1) to the Convention.
Article 1 of Protocol No. 1 (P1-1) to the Convention reads:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived ofhis
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
The Commission first observes that Poland ratified this Protocol
on 10 October 1994. The first-instance administrative decision which
deprived the applicant of his veteran status was taken on 16 May 1993.
Pursuant to Article 25 para. 4 of the February 1991 Act, if a decision
is appealed against to the Supreme Administrative Court, the rights
stemming from the veteran status are suspended until a final judgment
is taken. Thus, the Commission is competent ratione temporis to
examine this complaint, regard being had to the fact that the final
decision in the case, the judgment of the Supreme Administrative Court,
was pronounced on 14 June 1995 and that it was only this decision which
definitely deprived the applicant of his veteran status and his social
insurance rights stemming therefrom.
It is true that, according to the Convention organs' case-law,
the making of contributions to a pension fund may, in certain
circumstances, create a property right in a portion of such fund and
such right may be affected by the manner in which the fund is
distributed (No. 4130/69, Yearbook 14, pp. 224 and 240 et seq.;
No. 5849/72, Dec. 16.12.74, D.R. 1, p. 46; No.9776/82, Dec. 3.10.83,
D.R. 34, p. 153; No. 12264/86, Dec. 13.7.88, D.R. 57, p. 131). The
Commission further recalls that the rights stemming from contributions
to payments of a social insurance system are pecuniary rights for the
purposes of Article 1 of Protocol No. 1 (P1-1) to the Convention (Eur.
Court HR, Gaygusuz v. Austria judgment of 16 September 1996, Reports
of Judgments and Decisions 19966-IV, no. 14, p. 1142, paras. 39-41).
However, even if it is assumed that Article 1 of Protocol No. 1 (P1-1)
(P1-1) guarantees persons who have paid contributions to a social
insurance system the right to derive benefits from the system, it
cannot be interpreted as entitling that person to a pension of a
particular amount (5849/72, Müller v. Austria, Comm. Report. 1.10.75,
D.R. 3, p. 25; No. 10671/83, Dec. 4.3.85, D.R. 42, p. 229).
In the present case the applicant lost only his entitlement to
the social insurance benefits due to veterans, but, in accordance with
Article 26 of the Act on Veterans and Persecuted Persons of February
1991, he retained his rights to the ordinary retirement benefits due
under the general social insurance system. Thus, it was only the
special privileged status which the applicant lost, his principal
social security entitlements having remained intact. The Commission
observes that the February 1991 Act on Veterans and Persecuted Persons
was partly intended as a condemnation of the political role which the
communist security services had played in establishing the communist
regime and in repression of political opposition thereto. This
legislation was based on the consideration that the members of these
services, whose function was to combat the political or armed
organisations fighting for the independence of Poland in the 1940s and
1950s, did not merit the special privileges which were accorded to them
by the 1982 Veterans Act. The Commission considers that such
considerations of public policy, even if the operation of laws
resulting therefrom entails a reduction in social insurance benefits,
do not affect the property rights stemming from the social insurance
system in a manner contrary to Article 1 of Protocol No. 1 (P1-1).
As regards Article 7 (Art. 7) of the Convention, the Commission
points out that the applicant was not convicted of a criminal offence
and that there has therefore not been any violation of that Article.
It follows that the application is manifestly ill-founded 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 J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy