AS TO THE ADMISSIBILITY OF
Application No. 25871/94
by Józef TYMCIO
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 18 July 1994 by
Józef TYMCIO against Poland and registered on 7 December 1994 under
file No. 25871/94;
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 1947, is an engineer
residing in Ostrol*ka.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
In 1975 the applicant entered the civil service at the Ostrol*ka
Regional Office (Urz*d Wojewódzki). On 29 June 1990 the Ostrol*ka
Governor (Wojewoda) appointed the applicant to the post of director of
the Organisation and Supervision Division at the Regional Office
(Dyrektor Wydzialu Organizacji i Nadzoru Urz*du Wojewódzkiego).
On 2 July 1990 the Governor dismissed the applicant from his
post.
On 18 March 1991 the applicant requested the Minister-Director
of the Office of the Council of Ministers (Minister-Szef Urz*du Rady
Ministrów) to declare that the decision on his dismissal was null and
void.
In an administrative interlocutory decision of 22 April 1991 the
Minister rejected his appeal, considering that it had been filed out
of the statutory time-limit and that no plausible reasons had been
submitted by the applicant to justify the delay. The Minister further
stated that the decision on the applicant's dismissal was in accordance
with the law. The applicant appealed against this decision to the
Supreme Administrative Court (Naczelny S*d Administracyjny).
On 17 April 1991 the Supreme Administrative Court dismissed the
applicant's appeal insofar as it concerned the refusal of reinstatement
into the time-limit to lodge an appeal and quashed the decision of
22 April 1991 in its remainder for procedural reasons, considering that
it had not been issued in a proper form, required by the Code of
Administrative Procedure as it should have had the form of an
administrative decision on the merits, not of an interlocutory
decision.
In a decision of 9 September 1991 the Minister-Director of the
Office of the Council of Ministers upheld the decision on the
applicant's dismissal. The applicant again lodged an appeal.
On 12 December 1991 the Supreme Administrative Court dismissed
the applicant's appeal.
On 13 December 1993 the Ombudsman filed an extraordinary appeal
on the applicant's behalf with the Supreme Court (S*d Najwyzszy),
claiming that the impugned decision was in breach of, inter alia, the
Civil Service Act and that as such it should be quashed and that the
case should be reconsidered.
On 20 January 1994 the Supreme Court dismissed the extraordinary
appeal, finding that the applicant's dismissal was in accordance with
the law.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
that the proceedings concerning his dismissal from the civil service
were unfair in that the decision on his dismissal was politically
motivated; that his case was decided differently from similar cases of
other civil servants who were dismissed in June 1990 and subsequently
reinstated, that the authorities failed to examine his case in a
detailed and conscientious manner and that the impugned decisions were
in breach of the domestic law.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention of the unfairness and the outcome of the proceedings.
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."
Insofar as the applicant's complaint relates to events before
1 May 1993, 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 by Poland of the rights
recognised in the Convention through any act, decision or event
occurring after 30 April 1993". It follows that this part of the
application is outside the competence ratione temporis of the
Convention and therefore incompatible with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
As regards the proceedings after that date, 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 legal conditions of the applicant's
employment at the Regional Office were governed by the Civil Service
Act. In the proceedings before the Supreme Court instituted by the
Ombudsman following the applicant's successful request that an
extraordinary appeal be lodged on his behalf, the Ombudsman contested
the lawfulness of the termination of the applicant's service under that
Act.
The Commission considers that the proceedings before the Supreme
Court clearly related only to the question of the lawfulness of the
termination of the applicant's career in the civil service. The
Commission thus considers that the proceedings in question 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 at issue.
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, by a majority,
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