AS TO THE ADMISSIBILITY OF
Application No. 28996/95
by Cezary ZUKOWSKI
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 October 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 4 May 1995 by
Cezary Zukowski against Poland and registered on 30 October 1995 under
file No. 28996/95;
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 1958, is a prison guard
residing in Plock.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
On 13 December 1994 the applicant informed the Plock District
Prosecutor that certain documents in his employment file had been
falsified by L.M., the Plock prison governor. Subsequently, L.M. was
appointed to the post of director of the Central Prison Administration.
On 13 January 1995 the Central Prison Administration ordered that
the applicant undergo a psychiatric examination.
On 12 February 1995 the Governor of Plock prison suspended the
applicant from the exercise of his functions.
On 19 June 1995 the Governor of Lódz prison decided that a
disciplinary penalty of dismissal from service should be imposed on the
applicant. The Governor found that the applicant had informed the
press about the falsification of his employment documents and
considered that those charges were "at least premature" and that the
applicant had been disloyal towards the prison administration in that
he had made denigrating public statements about it. The applicant had,
moreover, shown lack of good faith in that he had refused to cooperate
in the disciplinary proceedings.
The applicant filed an appeal against this decision with the
Central Prison Administration, headed by L.M.
On 29 June 1995 the medical panel, having examined the applicant,
found that he was fully able to carry on his work as prison guard.
On 7 July 1995 the Kutno District Public Prosecutor charged L.M.
with falsifying the applicant's employment documents.
On 24 July 1995 the Deputy Director of the Central Prison
Administration decided that the decision of 19 June 1995 should be
reconsidered as not all relevant circumstances of the case had been
established with sufficient clarity. In particular, it had not been
established what information the applicant had in fact given to the
press. Moreover, the decision to institute disciplinary proceedings
had not been properly served on him.
On 11 August 1995 the Governor of Plock Prison found the
applicant guilty of having failed to comply with his superior's order
to appear at the Regional Prosecutor's Office in Wloclawek on
26 July 1995, of an unjustified absence at work on 26 and 27 July 1995
and of having given untrue information to the press which could lower
his immediate superiors in social esteem, and imposed on him a penalty
of dismissal from service.
On 21 August 1995 the Lódz Prison Governor upheld this decision.
On 6 September 1995 the Plock Prison Governor dismissed the
applicant from service on the basis of the decisions of 11 and
21 August 1995.
On 13 September 1995 the Lódz Prison Governor upheld this
decision.
The applicant lodged an appeal against the decisions pronounced
in the disciplinary proceedings and against his dismissal, submitting
in particular that they amounted to a punishment for the fact that he
had complained to the Public Prosecutor about his employment documents
having been forged to his detriment by L.M.
In December 1995 the Wloclawek Regional Prosecutor submitted to
the Wloclawek District Court (S*d Rejonowy) an indictment against L.M.
on charges of falsification of documents.
On 19 January 1996 the Supreme Administrative Court (Naczelny S*d
Administracyjny) pronounced a judgment in the applicant's case. The
Court observed that it lacked jurisdiction to examine the applicant's
appeal insofar as it related to the decisions issued in the
disciplinary proceedings as by virtue of the relevant provisions of the
Code of Administrative Procedure such proceedings were expressly
excluded from its jurisdiction. However, following the case-law of the
Supreme Court and the Supreme Administrative Court, decisions relating
to the assessment, career and termination of the career of certain
categories of civil servants, including prison guards, should be
regarded as ordinary administrative decisions and as such they were
subject to the Court's review as to their lawfulness. The Court
further noted that under the Prison Administration Act if a
disciplinary penalty of dismissal from service was imposed, its
necessary consequence had to be a subsequent decision of dismissal.
As in the present case such a penalty had been imposed in the
disciplinary proceedings, the Court considered that the subsequent
dismissal from service was in conformity with the law. Accordingly,
the impugned decision of dismissal from service had to be upheld as
being lawful.
At an unspecified later date the Wloclawek District Court
convicted L.M. of forgery of the applicant's employment documents,
sentenced him to eight months' imprisonment and a fine and suspended
the execution of the prison sentence.
On 30 August 1996 the Minister of Justice, carrying out his
function of supervising the lawfulness of disciplinary proceedings
against prison guards, quashed the decisions of 11 and 21 August 1995
issued in the disciplinary proceedings against the applicant on the
ground that the impugned decisions were in flagrant breach of the law.
In particular, the facts which had served as a basis for the
applicant's dismissal had not been fully established and no relevant
evidence had been taken and cited in the decisions. The applicant
subsequently was reinstated into service.
COMPLAINTS
The applicant complains under Article 6 of the Convention about
the outcome of the proceedings in that his dismissal from work amounted
to a punishment for the fact that he had requested the Public
Prosecutor to institute criminal proceedings concerning falsification
of his employment documents. He submits that he was deprived of access
to court as no court had jurisdiction to examine the lawfulness of the
decisions pronounced in the disciplinary proceedings and of his
dismissal.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention about the outcome of the proceedings concerned and submits
that he did not have access to a court competent to examine the
lawfulness of the decisions pronounced in the disciplinary proceedings
and of his dismissal.
Article 6 (Art. 6) of the Convention in its relevant part reads:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair ... hearing ... by (a) ... tribunal ..."
The Commission first recalls the Convention organs' case-law
according to which disputes relating to the recruitment, careers and
termination of service of civil 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. 43). Consequently, no right of access
to a court can be derived from this provision as regards such disputes.
However, in the present case the Commission is not called upon
to determine whether Article 6 (Art. 6) is applicable to the
proceedings concerned. Under Article 25 (Art. 25) of the Convention,
the Commission may receive petitions from any person claiming to be a
victim of a violation of the rights set forth in the Convention. The
Commission recalls that the answer to the question whether an applicant
can claim to be a victim of a violation of the Convention depends
largely on the legal interest which the applicant has in a
determination of his allegations of Convention breaches (No. 9320/81,
Dec. 15.3.84, D.R. 36, p. 24). A person who has obtained redress at
the domestic level for the alleged violations of the Convention cannot
claim to be a victim of those violations (No. 17926/91, Dec. 28.6.93,
D.R. 75, p. 167).
The Commission notes that in the present case the applicant in
fact had access to a court competent to determine the lawfulness of his
dismissal and that he availed himself thereof by lodging an appeal with
the Supreme Administrative Court. In its judgment of 19 January 1996
the Court examined his appeal in this respect and found that the
dismissal from service was in conformity with the law. It is true that
the Court lacked jurisdiction to deal with the applicant's appeal
insofar as it was directed against the decisions pronounced in the
disciplinary proceedings against the applicant as under the Polish Code
of Administrative Procedure such competence is clearly excluded from
the Court's jurisdiction. However, the Commission observes that, in
any event, the Minister of Justice by his decision of 30 August 1996
quashed the decisions which had imposed a disciplinary penalty on the
applicant, considering that those decisions were in flagrant breach of
the law. The applicant was subsequently reinstated into service.
Therefore the applicant has obtained the result sought, i.e. the
determination that the decisions concerned were unlawful.
The Commission concludes that the applicant obtained redress at
the domestic level for the alleged violation of the Convention. Under
Article 25 (Art. 25) of the Convention he cannot therefore claim to be
a victim of this violation.
It follows that the application must be rejected in accordance
with 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