Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29806/96

by Ryszard RYBICKI

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 27 June 1995 by

Ryszard RYBICKI against Poland and registered on 15 January 1996 under

file No. 29806/96;

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 1949, resides in Ustrzyki

Dolne.

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

summarised as follows:

On 8 August 1993 the applicant, who was unemployed at this time,

requested the Krosno Regional Labour Office (Rejonowy Urz*d Pracy) to

grant a permission to employ a Ukrainian citizen N.B. as a driver and

unskilled worker in the private company which the applicant intended

to found. He submitted that he would not be able to employ a Polish

citizen as the labour costs of the latter would render the company

economically unviable, whereas the salary to be paid to the Ukrainian

citizen could be significantly lower.

On 31 August 1993 the Krosno Regional Labour Office refused to

grant the permit on the grounds that there were twenty-four unemployed

Polish citizens having the qualifications required by the applicant

registered with the Labour Office in Ustrzyki. In view thereof, the

employment of a foreigner would be incompatible with the necessity to

protect the local labour market, in particular as the local

municipality was particularly affected by the structural unemployment.

The applicant lodged an appeal with the Warsaw Labour Office

(Krajowy Urz*d Pracy) submitting that the refusal to employ N.B. would

make it impossible for him to start his own business as he would be

unable to pay the salary and the social security of a Polish employee.

On 11 October 1993 the Warsaw Labour Office upheld the decision

of the Regional Labour Office, considering that it was in conformity

with the law.

On 20 October 1993 the Krosno Municipal Appeals Board (Kolegium

Odwolawcze przy Sejmiku Samorz*dowym) dismissed the applicant's request

to set aside the decision of the municipal authorities of 1986 by which

the applicant had been obliged to pay the municipal tax, considering

that the decision was lawful and had been duly served on the applicant.

The applicant filed an appeal with the Supreme Administrative

Court (Naczelny S*d Administracyjny). He submitted that the refusal

to employ N.B. would make it impossible for him to start his own

business as he would be unable to pay the salary and the social

security of a Polish employee.

On 5 May 1994 the Supreme Administrative Court dismissed the

applicant's appeal against the decision of the Krosno Municipal Appeals

Board of 20 October 1993, finding that the decision concerned was

lawful. Subsequently the Minister of Justice on 30 November 1994,

10 March and 23 October 1995 refused to lodge an extraordinary appeal

with the Supreme Court against this decision. The Ombudsman likewise

refused to file such an appeal on 25 July 1994, 9 January, 3 February

and 5 May 1995.

On 6 December 1994 the Supreme Administrative Court dismissed the

applicant's appeal against the decision of the Warsaw Labour Office of

11 October 1993. The Court first observed that its scope of

jurisdiction was limited to the examination of the lawfulness of

administrative decisions. The Court noted that under Article 50 of the

Law on Employment the local labour offices, when deciding on granting

a permission to employ a foreigner, had to consider how such permission

would affect the situation on the local labour market. They further

had to take into consideration the relevant opinion of the local

Employment Board. In the present case that opinion was negative, there

were twenty-four registered unemployed persons in Ustrzyki and the

municipality was particularly affected by the structural unemployment.

In view thereof, the refusal was in compliance with the law. The Court

further observed that the granting of the permit was not obligatory and

was within the discretionary power of both authorities to grant or to

refuse it, regard being had not only to the applicant's arguments but

also to all relevant aspects of the case, including the public

interest. The considerations of public interest argued against

granting the permission to employ an unskilled foreign citizen at the

time of widespread unemployment. The authorities, in their examination

of the case, were not arbitrary and duly considered all circumstances

of relevance.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention that the refusal to employ the Ukrainian citizen amounted

to a breach of his right to a fair hearing in that it rendered his

enterprise economically unviable as he could not afford to pay higher

wages and social security to a Polish employee.

The applicant complains under Article 6 para. 1 of the

Convention about the outcome of the proceedings which ended with the

judgment of the Supreme Administrative Court of 5 May 1994, and about

subsequent refusals of the Minister of Justice and the Ombudsman to

lodge an extraordinary appeal on his behalf.

THE LAW

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

Convention that the refusal to employ the Ukrainian citizen amounted

to a breach of his right to a fair hearing.

Article 6 para. 1 (Art. 6-1) in its relevant part reads:

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

... everyone is entitled to a fair ... hearing..."

The Commission must ascertain whether Article 6 para. 1

(Art. 6-1) of the Convention is applicable in the present case and

whether there was a dispute over a "right" which can be said, at least

on arguable grounds, to be recognised under domestic law. In order to

fall within the scope of Article 6 (Art. 6), the dispute must be

genuine and serious; it may relate not only to the actual existence of

a right but also to its scope and the manner of its exercise. Finally,

the result of the proceedings must be directly decisive for the right

in question (Eur. Court HR, Kerojärvi v. Finland judgment of

19 July 1995, Series A no. 322, p. 12, para. 32).

However, the Commission recalls that Article 6 (Art. 6) of the

Convention is not applicable to proceedings concerning the recognition

of a "right" which has no legal basis in the State in question (No.

12763/87, Dec. 14.7.88, D.R. 57 p. 216).

In the present case the applicant wished to obtain a permission

to employ a Ukrainian citizen in his private company. Under Article 50

of the Law on Employment the competent authorities had to consider how

such a permission, if granted, would affect the situation on the local

labour market and to take into account the relevant opinion of the

local Employment Board. In the applicant's case the authorities

considered that the permission could not be granted in view of the

significant unemployment in his municipality and the opinion of the

Board was unfavourable. When deciding on granting or refusing the

permission the authorities exercised their administrative discretion

and were under no obligation to issue a permission. Thus, it could not

be considered, even on arguable grounds, that the proceedings at issue

concerned the applicant's 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.

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

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

Convention about the outcome of the proceedings which ended with the

judgment of the Supreme Administrative Court of 5 May 1994, and about

subsequent refusals of the Minister of Justice and the Ombudsman to

lodge an extraordinary appeal on his behalf.

As regards the proceedings before the Supreme Administrative

Court, the Commission is not required to decide whether or not the

facts alleged by the applicant disclose any appearance of a violation

of Article 6 (Art. 6) of the Convention as the judgment complained of

was pronounced on 5 May 1994, i.e. more than six months before the date

on which the application was introduced. The applicant has not

therefore lodged his application within the six months' time-limit

provided for in Article 26 (Art. 26) of the Convention.

It follows that this complaint is inadmissible within the meaning

of Article 27 para. 3 (Art. 27-3) of the Convention.

Insofar as the applicant complains about the refusals to lodge

an extraordinary appeal, the Commission observes that the right to use

extraordinary legal remedies is not included among the rights and

freedoms guaranteed by the Convention.

It follows that this part of 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

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RYBICKI v. POLAND

RYBICKI v. POLAND

LEXI