Search
document

Document text Analytics

MISIORNY v. POLAND

Doc ref: 25033/94 • ECHR ID: 001-3727

Document date: July 2, 1997

Inbound citations: 0
•
Cited paragraphs: 0
•
Outbound citations: 0

MISIORNY v. POLAND

Doc ref: 25033/94 • ECHR ID: 001-3727

Document date: July 2, 1997

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 25033/94

by Krzysztof MISIORNY

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 July 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 1 March 1994 by

Krzysztof MISIORNY against Poland and registered on 30 August 1994

under file No. 25033/94;

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 1966, is a policeman

residing in Racot.

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

summarised as follows:

In March 1993 the applicant obtained a negative assessment of his

service.

On 30 September 1993 the Koscian District Police Commander

(Komendant Rejonowy Policji) issued a further assessment of the

applicant's service, stating therein, inter alia, that the applicant's

work was barely satisfactory; that since the previous assessment in

March 1993 there was a certain improvement in his performance of

preventive tasks, but no tangible amelioration with regard to

operational work. It was further stated that the assessment did not

amount to a disapproval of the applicant's work.

On 15 October 1993 the applicant lodged an appeal with the Leszno

Regional Police Commander (Komendant Wojewódzki Policji), claiming that

the opinion was inaccurate and unfair; that it contained general and

vague statements; that it did not sufficiently refer to any concrete

facts and that it lacked objectivity.

On 16 November 1993 the Regional Police Commander upheld the

assessment, considering that it did not contain a negative evaluation

of the applicant's work and that the District Commander was objective

in issuing it. The applicant filed an appeal with the Supreme

Administrative Court (Naczelny S*d Administracyjny), claiming that the

decision should be quashed as not being in conformity with the law.

He submitted that the Regional Police Commander in its decision to

uphold the assessment failed to refer to the facts which had served as

a basis for his decision and to indicate the evidence on which he had

relied.

On 28 January 1994 the Supreme Administrative Court rejected the

applicant's appeal, considering that assessment of police service did

not constitute an administrative decision within the meaning of the

Code of Administrative Procedure and therefore no appeal to the Court

lay against it.

Relevant domestic law

Under the Police Act members of the police force are subject to

periodical assessment of their service. The assessment is subject to

an appeal to a hierarchically higher superior. A policeman may

optionally be transferred to a lower post if a failure to comply with

the professional obligations is confirmed by two subsequent

assessments between which at least six months have elapsed. A

policeman may optionally be dismissed from service if he fails to

comply with his professional obligations and this is confirmed by two

subsequent assessments between which at least six months have elapsed.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

that he was deprived of access to court in that no appeal to the

Supreme Administrative Court lay against the assessment of his service.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he was deprived of access to court as regards the

assessment of his service.

Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

"1. In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law."

The Commission recalls that according to the Convention organs'

case-law disputes relating to the recruitment, careers and termination

of service of public 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. 12).

In the present case the applicant contested the accuracy of the

statements contained in the assessment of his service. It might be

reasonably argued that the actual contents of the assessment might have

affected the prospects of the applicant's promotion. However, the

Commission observes that it was clearly stated in the assessment that

it should not be considered as being a negative one. The Commission

considers that the assessment related only to the applicant's "career".

The Commission further observes that there is no indication that under

the Police Act the applicant's financial position as regards his

salary was in any way affected by it as it did not contain disapproval.

Moreover, the Commission observes that the applicant did not submit any

financial claims in the domestic proceedings. The Commission concludes

that the proceedings in question did not have any direct pecuniary

consequences for the applicant and thus cannot be regarded as

concerning the determination of civil rights and obligations within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Therefore,

this provision is not applicable to the proceedings concerned and,

consequently, the right of access to court for the applicant cannot be

derived from this provision.

It follows that the application is incompatible ratione materiae

with the Convention 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

LEXI

Lexploria AI Legal Assistant