FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34610/97

by Stanisław DOMALEWSKI

against Poland

The European Court of Human Rights ( Fourth Section) sitting on 15 June 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr G. Ress ,

Mr A. Pastor Ridruejo ,

Mr L. Caflisch ,

Mr J. Makarczyk ,

Mr V. Butkevych ,

Mr J. Hedigan , Judges ,

with Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 March 1996 by Stanisław DOMALEWSKI  against Poland and registered on 28 January 1997 under file no. 34610/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish national, born in 1926 and living in Warsaw, Poland

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Particular circumstances of the case

From 15 February 1947 to 31 December 1956, the applicant was an officer ( funkcjonariusz ) of the Ministry of Public Security ( Ministerstwo Bezpieczeństwa Publicznego ) and the Committee for Public Security ( Komitet Do Spraw Bezpieczeństwa Publicznego ).

On 31 May 1974 the Warsaw Regional Board of the Union of Fighters for Liberty and Democracy ( Zarząd Wojewódzki Związku Bojowników o Wolność i Demokrację ) issued a decision granting the applicant the so-called “veteran status” ( uprawnienia kombatanckie ) on the basis of the fact:

“ ... that he [had] served from 10 June 1944 to 9 May 1945 in the [so-called] Restored Polish Army.”

On 2 June 1976 the Board issued a decision stating that the applicant should be granted “veteran status” also in view of the fact that:

“... from 29 March 1946 to 10 February 1947 he [had taken] part in the armed struggle to consolidate the people’s power ( brał udział w walkach o utrwalanie władzy ludowej ).”

On 15 July 1976 the Ministry of the Interior issued a declaration stating that, from 15 February 1947 to 31 December 1956, the applicant had been an officer of the former Ministry of Public Security and the former Committee for Public Security and that, from 15 February 1947 to 31 December 1947, “he had taken part in armed fighting with the reactionary underground resistance forces” ( brał udział w zbrojnej walce z reakcyjnym podziemiem ).

On 29 July 1980 the Board issued a decision stating that the applicant should be granted “veteran status” since:

“From 10 June 1944 to 9 May 1945 he [had] served in the Restored Polish Army; from 5 April 1944 to 9 June1944 he [had] served in the allied armies; from 29 March 1946 to 10 February 1947 and from 15 February 1947 to 31 December 1947 he [had taken] part in the armed struggle to consolidate the people’s power.”

Later, on an unspecified date, the applicant retired and, from that date, received a retirement pension and a so-called “veteran benefit” ( dodatek kombatancki ), i.e. a monthly allowance to which only retired veterans were entitled.

On 22 April 1994 the Director of the Office for Veterans and Persecuted Persons ( Kierownik Urzędu Do Spraw Kombatantów i Osób Represjonowanych ) issued a decision divesting the applicant of the status of veteran under Section 25 § 2 (1) (a) of the Law of 24 January 1991 on Veterans and Other Victims of War and Post-war Repression ( Ustawa o kombatantach oraz niektórych osobach będących ofiarami represji wojennych i okresu powojennego ), read in conjunction with Section 21 § 2 (4) (a) of that Law.  The reasons for this decision read:

“[The applicant] was granted “veteran status” by virtue of the decisions issued by the Union of Fighters for Democracy and Liberty on the basis of declarations [of the relevant military authorities], stating that he had taken part in the armed struggle to consolidate the people’s power and had served in the allied army.  [He was later granted such a status] on the basis of a declaration issued by the Ministry of the Interior on 15 July 1976, stating that, from 15 February 1947 to 31 December 1956, he had been an officer of the former Ministry of Public Security and the former Committee for Public Security and that, from 15 February 1947 to 31 December 1947, he had taken part in armed fighting with [the so-called] reactionary underground resistance forces.

Under Section 21 § 2 (4) (a) of the Law of 24 January 1991 cited above anyone who has served in organs of the public security service shall not acquire “veteran status” [in any circumstances and for whatever other reasons].

Under Section 25 § 2 read together with Section 21 § 2 (4) (a) of the Law, anyone who has served in organs of the public security service shall be divested of such [previously acquired] status.

That being so, the present decision is justified.”

On 23 May 1994 the applicant filed an appeal with the Supreme Administrative Court ( Naczelny Sąd Administracyjny ), submitting that the above-mentioned decision had been issued in breach of the rule of law and based on insufficient evidence.  He maintained that he had been divested of his status of veteran on the basis of a single circumstance, namely, that he had served in the organs of the public security service, even though he had never committed any condemnable , illegal or immoral act.  He stressed that he had never taken part in armed fighting with the underground resistance forces but had acquired “veteran status” for his fight for independence of Poland and against the Nazis. Finally, the applicant contested the accuracy of the certificates issued by the Union of Fighters for Liberty and Democracy, stating that they were inaccurate.

On 21 February 1996 the Supreme Administrative Court held a hearing in the applicant’s case.  On the same day the court gave judgment dismissing the appeal.  It held that, under Sections 21 and 25 of the Law of 24 January 1991 on Veterans and Other Victims of War and Post-war Repression, no one who had previously served, or been employed in, the organs of the public security service could receive or retain the status of veteran, whatever his merits.  In the instant case, it was clear that the applicant had been an officer of the former Ministry of the Public Security and the former Committee for Public Security; this fact was, in itself, sufficient under the terms of the Law of 24 January 1991 to justify the decision to divest him of his previously acquired status.  The impugned decision had therefore been taken in conformity with the relevant provisions of the substantive law.

B. Relevant domestic law

The Law of 24 January 1991 on Veterans and Other Victims of War and Post-War Repression repealed the Law of 26 May 1982 on the Special Status of Veterans ( Ustawa o szczególnych uprawnieniach kombatantów ).

It was enacted in order to regulate the system of granting special privileges attached to the so-called “veteran status” and, partly, intended to condemn the political role played by the former Communist machinery (in particular, the so-called “Public Security Service”, “ aparat bezpieczeństwa publicznego ” ) in establishing the Communist regime, implementing a Stalinist policy and repressing political opposition to the system.  Considering that persons having served in the former organs of public security, whose task it had been, inter alia , to combat and eliminate all forms of democratic opposition, did not deserve the special privileges attached to “veteran status”, the legislator decided that they should be unconditionally deprived of that status.

The “Public Security Service” consisted of State organs, comprising the political police and special armed forces.  It was patterned after the NKVD and the KGB and established (under the supervision of the NKVD) on 21 July 1944 with a view to securing Communist rule and combating, suppressing and eliminating groups of political opposition, including the post-war underground resistance against Communism and the Polish Church.  In the 1950s these organs were in charge of prisons and labour camps; at that time, they were also competent to conduct criminal investigations under the rules of criminal procedure.  Depending on the political circumstances, they were called by various names: “Department of Public Security” ( Resort Bezpieczeństwa Publicznego ), subsequently renamed “Ministry of Public Security” ( Ministerstwo Bezpieczeństwa Publicznego ) (July 1944-December 1954); “Committee for Public Security” ( Komitet do Spraw Bezpieczeństwa Publicznego ) (1954-1956); and “Security Service” ( Służba Bezpieczeństwa ), as a special department of the Ministry of the Interior (1956-1990; dissolved after the collapse of Communism).

The Law of 24 January 1991 also established a new public organ, the Office for Veterans and Persecuted Persons, which is competent to grant “veteran status” and has the duty to verify whether persons who have previously acquired such status meet the new statutory criteria.

Section 21 § 2 (4) (a) of the 1991 Law, as applicable at the relevant time, provided as follows:

“2. No one shall acquire “veteran status”, if:

...

(4) (a) he has served [or has been employed] in organs of the public security service. ...”

In turn, Section 25 § 2 of that Law, as applicable at the relevant time, provided the following:

“Anyone who has acquired “veteran status” on the basis referred to in Section 21 § 2 ... (4) shall be divested of such previously acquired status.”

Under the provisions of both the repealed Law of 26 May 1982 and the new Law of 24 January 1991 (Sections 12-20), veterans were (and still are) entitled to privileged status in comparison to other employees or retired persons; this status included, for example: a lower age of retirement; a particularly favourable method for calculating periods of employment; and various financial benefits paid in addition to the normal pension calculated in accordance with the rules of the general social insurance system.

At the time when the applicant was divested of his “veteran status”, a retired veteran was, inter alia , entitled to a so-called “veteran benefit” equal to 10% of the average monthly salary in the public sector; a fare discount of 50% on travel by municipal transport, rail and public long-distance buses; a special allowance covering 50% of such household expenses as electricity, gas and heating; and a discount of 50% on motor-vehicle insurance.

The loss of “veteran status” did (and does) not, however, entail any legal or practical consequences in respect of the right to receive a normal pension since, under Section 26 of the Law of 24 January 1991, a person divested of that status is still entitled to his pension calculated under the rules applicable within the general social insurance scheme.

COMPLAINTS

1. The applicant complains about the outcome of the proceedings divesting him of the status of veteran, submitting that the Polish authorities incorrectly established and assessed the facts relevant for the determination of his case.  He invokes Article 6 of the Convention.

2. He further complains under Article 14 of the Convention that the Polish authorities discriminated against him because of his previous service in the so-called “organs of public security service” and that they unjustifiedly deprived him of his legally acquired status as a veteran and of the entitlements attaching thereto.

THE LAW

1. The applicant complains about the outcome of the proceedings divesting him of the status of veteran, submitting that the Polish authorities incorrectly established and assessed the facts relevant for the determination of his case.  He invokes Article 6 of the Convention.

The Court, noting that the proceedings complained of did not involve the determination of any criminal charge against the applicant, has firstly examined whether Article 6  § 1 of the Convention applies to these proceedings under its “civil head”.

The relevant part of Article 6 § 1 of the Convention provides:

“ In the determination of his civil rights and obligations ... , everyone is entitled to a fair ... hearing ... by [a] tribunal established by law. ...”

The Court recalls that the applicability of this limb of Article 6 § 1 of the Convention requires the existence of a “dispute” over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law.  That dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and to the manner of its exercise.  Furthermore the outcome of the proceedings must be directly decisive for the right in question (see, for example, the Rolf Gustafson v. Sweden judgment of 1 July 1997, Reports 1997-IV, p. 1160, § 38).

In the present case, the Court observes that the proceedings complained of concerned the question of whether or not the applicant should retain his previously acquired “veteran status” and that the final ruling in those proceedings, which eventually divested him of this status, was decisive for his pecuniary rights, in particular the entitlement to the “veteran benefit”, i.e. a specific sum of money.  The Court therefore considers that the proceedings involved a “dispute” over the applicant’s “civil rights” and that, consequently, Article 6 § 1 of the Convention applies.

However, the Court also observes that the applicant does not allege any particular failure to respect his right to a fair hearing by the domestic authorities and that his complaints essentially amount to objecting to the result of the proceedings before those authorities and to the errors of fact allegedly committed by them.

In this respect the Court recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the States Parties to the Convention.  In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see the Garcia Ruiz v. Spain judgment of 21 January 1999, to be published in Reports 1999, ... § 28).

It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 1 of the Convention and that must be rejected pursuant to Article 35 § 4 of the Convention.

2. The applicant further complains, under Article 14 of the Convention, that the Polish authorities discriminated against him because of his previous service in the so-called “organs of public security service” and that, as a consequence, they unjustifiedly deprived him of his legally acquired status as a veteran and of the entitlements attaching thereto.

The Court begins by recalling that, according to its established case-law, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols thereto.  It has no independent existence since it has effect solely in relation to “the enjoyment of rights and freedoms” safeguarded by those provisions.  Although the application of Article 14 does not presuppose a breach of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of them (see the Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996-IV, p. 1141, § 36).

In respect of the present case, the Court observes that the applicant’s complaint is not limited to the question of whether or not Polish law operated discriminatorily but also relates to the loss of financial benefits attached to “veteran status” which, as the Court has found already, are pecuniary rights.  The Court therefore considers that the complaint falls to be examined under Article 1 of Protocol No. 1 to the Convention read together with Article 14 of the Convention (see, mutatis mutandis ,  the Gaygusuz v. Austria judgment, loc. cit., §§ 39-41).

Article 1 of Protocol No. 1 provides, insofar as relevant:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ... “

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court recalls that even though the rights stemming from the payment of contributions to the social insurance system, in particular the right to derive benefits from such a system - for instance in the form of a pension - can be asserted under Article 1 of Protocol No. 1, this provision cannot be interpreted as giving an individual a right to a pension of a particular amount (Eur. Comm. HR, no. 5849/72, Müller v. Austria Comm. Report, 1.10.1975, D.R. 3, p. 25; no. 10671/83, Dec. 4.3. 1985, D.R. 42, p. 229).

The Court further notes that, for the purposes of Article 14 of the Convention, a difference in treatment is discriminatory if it has no objective and reasonable justification, which means that it does not pursue a “legitimate aim” or that there is no “reasonable proportionality between the means employed and the aim sought to be realised”.  Moreover, in this respect the States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see, the Gaygusuz v. Austria judgment, loc. cit.).

In the present case, the Court observes that, by virtue of the judgment of the Supreme Administrative Court of 21 February 1996, the applicant lost the special and privileged “veteran status”, which had entitled him to an extra allowance in addition to his normal pension (i.e. the so-called “veteran benefit”) and some other benefits enabling him to take advantage of certain discounts to which other retired persons were not entitled, or covering some of his household expenses.  The applicant did, however, retain all the rights attaching to his ordinary pension under the general social insurance system.  Consequently, the applicant’s pecuniary rights stemming from the contributions paid into his pension scheme remained the same.

In these circumstances, the Court does not consider that the applicant’s right to derive benefits from the social insurance scheme was infringed in a manner contrary to Article 1 of Protocol No. 1, especially as the loss of “veteran status” did not result in the essence of his pension rights being impaired.

Nor does the Court consider that divesting the applicant of “veteran status” amounted to discrimination contrary to Article 14 of the Convention.

In that regard, it observes that, under the Law of 24 January 1991 on Veterans and Other Victims of War and Post-war Repression, the applicant, in the same way and on the same conditions as all other persons who had previously been employed or had served in the former Communist organs of the public security service, was excluded from the privileged group of “veterans” in view of the political role played by those organs in preserving totalitarian rule and combating and eliminating political opposition to the former regime.

The Court moreover points out that the statutory measures taken by the Polish State in respect of such persons were primarily aimed at an objective verification of whether those who had served in organs commonly regarded as a machinery of repression satisfy the present statutory conditions for being awarded a special honourable status.  Therefore, the means employed by the Polish authorities had an objective and reasonable justification in Poland’s historical experience during the Communist period, and they realised a legitimate aim, which was to regulate the operation of the existing system of exceptional privileges.

It follows that the remainder of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President