Lexploria

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

Menu

SZUMILAS v. POLAND

SZUMILAS v. POLAND

LEXI