Lexploria

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

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zUKOWSKI v. POLAND

zUKOWSKI v. POLAND

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