AS TO THE ADMISSIBILITY OF
Application No. 28240/95
by Jerzy WALICKI
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 October 1996, 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
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
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 15 December 1994
by Jerzy WALICKI against Poland and registered on 18 August 1995 under
file No. 28240/95;
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 1935, is a retired
engineer, residing in Bydgoszcz.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
From 1961 the applicant worked at various engineering posts at
the State Railways engineering design branch in Gdansk. He retired in
1991, retaining an entitlement to reduced prices of railway tickets and
to use the medical care of the Railways' medical services as a part of
his retirement benefits.
On 1 January 1992 the Railways' engineering design branch was
detached from the general structure of the Railways and given a
separate status.
On 20 June 1992 the Act on the Entitlement to Public Transport
Free of Charge or at Reduced Prices was enacted. It provided in
Article 7 that entitlements to the tickets at reduced prices were in
principle abolished, with certain exceptions only. It further
invalidated relevant provisions of numerous industrial collective
agreements, concerning many categories of civil servants. Its
Article 8 provided that the public transport companies could maintain
such entitlement for their employees and retired employees, should they
wish to do so.
On 12 January 1993 the State Railways' Director General issued
an Order No. 4, which maintained the entitlement to reduced prices of
the tickets for its retired employees, but took this entitlement away
from the retired employees of the Railways' engineering design branch.
The Order further took away the entitlement to use the Railways'
medical services for this group of retired employees in view of the
fact that in 1991 this branch had been detached from the general
structure of the Railways and given a separate status.
On 23 March 1993 the applicant filed an action with the Gdansk
District Court (S*d Rejonowy), claiming that the Court should establish
that he was a retired employee from the State Railways and retained his
entitlement to reduced prices of railway tickets and to use the medical
care of the Railways' medical services.
On 17 November 1993 the Ombudsman requested that the
Constitutional Court (Trybunal Konstytucyjny) examine whether Articles
7 and 9 of the Act on the Entitlement to Public Transport Free of
Charge or at Reduced Prices were compatible with the Constitution, in
particular its Articles 1, 67 paras. 1 and 2 and 70 paras. 1 and 2 (1).
The Ombudsman further requested that the Court determine whether the
Order No. 4 of 12 January 1993 was compatible with certain statutes and
in particular with Article 8 of the Act on the Entitlement to Public
Transport Free of Charge or at Reduced Prices, and with Articles 1, 67
paras. 1 and 2 and 70 paras. 1 and 2 (1) of the Constitution. The
National Committee of the "Solidarnosc" Trade Union submitted a similar
request.
On 8 June 1994 the Gdansk District Court dismissed the
applicant's action, finding in the light of relevant regulations that
the employees of the Railways' engineering design branch never had the
same status with regard to their labour rights and retirement
entitlements as other current and former employees of the Railways.
On 21 June 1994 the Constitutional Court held a hearing. The
Court heard the representatives of the Ombudsman and of the
"Solidarnosc" Trade Union, of the Parliament, of the Ministry of
Transport and of the Prosecutor General.
In the judgment of 28 June 1994 the Constitutional Court declared
that the impugned provisions of the Entitlement to Public Transport Act
and of the Director General's Order No. 4 of 12 January 1993 were
compatible with the Constitution.
On 18 October 1994 the Gdansk Regional Court (S*d Wojewódzki)
dismissed the applicant's appeal against the judgment of the Gdansk
District Court of 8 June 1994, finding that it was in accordance with
the law.
Relevant domestic law
Article 33 of the Polish Constitution of 1952 which remains in
force by virtue of Article 77 of the Constitutional Act of
17 October 1992 provides that the Constitutional Court gives rulings
on the conformity of legislation with the Constitution. It also
promulgates binding interpretations of law.
Articles 22 and 23 of the Constitutional Court Act provide an
exhaustive list of institutions who can request the Court to decide
whether a particular regulation is compatible with the Constitution or
with statutes. This list includes the President, the Presidium of the
Parliament, the parliamentary commissions, a group of fifty members of
the Parliament, the Presidium of the Senate, the commissions of the
Senate, a group of thirty senators, the State Tribunal, the Government,
the Prime Minister, the Ombudsman, the President of the Highest Audit
Chamber, the President of the Supreme Court, the President of the
Supreme Administrative Chamber and the General Prosecutor. Such
requests can also be submitted by the municipalities and national
headquarters of certain associations.
There is no individual constitutional complaint to the Court
under Polish law as a remedy against decisions of the courts or
administrative authorities, nor can individual citizens submit requests
for rulings on the compatibility of laws with the Constitution.
COMPLAINTS
The applicant complains under Article 3 of the Convention that
the taking away of his entitlements amounts to inhuman treatment.
He complains under Article 6 of the Convention that the
proceedings before the Constitutional Court were unfair in that the
Court failed in its duty to examine carefully the Ombudsman's motion
and, as a result, its judgment was wrong. He further complains that
he could not participate in the proceedings before the Constitutional
Court in order to present his arguments.
The applicant also relies on Article 13 of the Convention.
The applicant complains under Article 14 of the Convention that
the legislation concerned amounts to discrimination against the former
employees of the Railways' engineering branch as their lawfully
acquired entitlements were taken away from them whereas the other
retired employees of the Railways retained theirs.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention that the taking away of his entitlements amounts to inhuman
treatment.
Article 3 (Art. 3) of the Convention reads:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission observes that the treatment complained of
consisted of invalidation, by way of legislative intervention, of the
entitlement to purchase railway tickets at reduced prices and of the
entitlement to use the health care of the State Railways' medical
services. As regards the latter complaint, the Commission observes
that Article 3 (Art. 3) of the Convention does not guarantee a right
to certain specific health services. Moreover, in the circumstances
of the case no loss of or even danger to life or limb is involved. The
Commission considers that the treatment concerned did not attain the
threshold of inhuman or degrading treatment within the meaning of
Article 3 (Art. 3) of the Convention as established in the case-law of
the Convention organs (cf. Eur. Court HR, Ireland v. United Kingdom
judgment of 18 January 1979, Series A no. 25, p. 56, para. 162).
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains under Article 6 (Art. 6) of the
Convention that he could not participate in the proceedings before the
Constitutional Court and thus did not have an opportunity to present
his arguments to the Court.
Article 6 (Art. 6) of the Convention in its relevant part reads:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair ... hearing ..."
The Commission recalls that the applicability of Article 6
(Art. 6) of the Convention depends on whether the proceedings at issue
concern the determination of "civil rights and obligations". The
Commission observes that under Polish law an individual does not have
standing in the proceedings before the Constitutional Court. In the
present case the applicant was not a party to the proceedings before
this Court and the law did not allow him to be a party in such
proceedings. Therefore 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. Thus this provision is
inapplicable thereto.
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.
Insofar as the applicant's complaint can be understood as
relating to lack of access to the Constitutional Court in order to
challenge the compatibility of the legislation concerned with the
Constitution, the Commission recalls that Article 6 (Art. 6) of the
Convention does not guarantee a right of access to a court with
competence to invalidate or override a law (No. 14324/88, Dec. 19.4.91,
D.R. 69, p. 227). It follows that this complaint is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant further complains of a breach of Article 13
(Art. 13) of the Convention which guarantees an effective domestic
remedy for breaches of the Convention. However, the case-law of the
Commission established that Article 13 (Art. 13) does not require a
remedy in domestic law for all claims alleging a breach of the
Convention; the claim must be an arguable one (Eur. Court HR, Boyle and
Rice v. United Kingdom judgment of 27 April 1988, Series A no. 131, p.
23, para. 52). In the light of the above conclusions concerning the
applicant's complaints under Articles 2 and 6 (Art. 2, 6) of the
Convention, the Commission finds that the applicant does not have an
arguable claim of a breach of these provisions which warrants a remedy
under Article 13 (Art. 13).
This part of the application must also, therefore, be rejected
as being manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
4. The applicant complains under Article 14 (Art. 14) of the
Convention that the legislation concerned amounts to discrimination
against the former employees of the Railways' engineering branch as
their entitlements were taken away from them whereas the other retired
employees of the Railways retained theirs.
The Commission recalls that Article 14 (Art. 14) has no
independent existence, but only complements the other substantive
provisions of the Convention and its Protocols, since it has effect
solely in relation to the rights and freedoms safeguarded by those
provisions (see Eur. Court HR, Inze v. Austria judgment of 28 October
1987, p. 17, para. 36). The Commission considers that no separate
issue arises under this provision of the Convention.
It follows that this part of the application is also 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 G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy