Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28250/95

by Stanislaw DOBRANOWSKI

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 January 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

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 24 April 1995 by

Stanislaw DOBRANOWSKI against Poland and registered on 18 August 1995

under file No. 28250/95;

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 1944, is a retired

teacher and resides in Tulowice in Poland.

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

summarised as follows:

Particular circumstances of the case

On 17 September 1991 the Deputy Chief Justice of the Opole

Provincial Court (S*d Wojewódzki) ordered that the applicant's name be

struck off the list of the court's experts in view of the fact that the

latter no longer had the qualities and credibility required. The

decision was based, inter alia, on a declaration issued by the

applicant's superior which stated that the applicant had been

prohibited from practising the profession of teacher. In fact, at the

material time, the applicant was suspended from his teacher's duties

and disciplinary proceedings were pending against him. Eventually, on

31 March 1992, the applicant was dismissed from his post as a teacher

as a disciplinary punishment.

On 19 July 1994 the applicant lodged with the Supreme Court (S*d

Najwyzszy) an action in tort against the Minister of Justice and the

Opole Provincial Court. He requested compensation of 800 million PLZ

for loss arising from the decision of the Deputy Chief Justice of the

Opole Provincial Court which was, in his opinion, unlawful.

On 31 August 1994 the Supreme Court declared that it had no

jurisdiction and ordered the case to be transferred to the Opole

Provincial Court, which had territorial jurisdiction as well as

jurisdiction with respect to the subject-matter.

On 3 October 1994 the Opole Provincial Court, sitting in camera,

rejected the applicant's claim on the ground that his application to

a civil court was premature as, according to Polish law, he should

first have obtained the annulment of the decision in question, as well

as a subsequent decision on the amount of compensation, both of which

are matters of administrative, not civil, law. It was held that these

preliminary steps constituted conditions sine qua non of access to a

civil court in the applicant's case.

On 10 October 1994 the applicant appealed to the Wroclaw

Provincial Court (S*d Wojewódzki), arguing that the court of first

instance had wrongly interpreted the law. He also submitted that the

decision in question was based on the false statement of his superior

who had intentionally impaired his reputation and dignity.

On 23 November 1994 the Wroclaw Court of Appeal (S*d Apelacyjny),

sitting in camera, dismissed the applicant's appeal and entirely upheld

the grounds given by the court of first instance. This decision was

served on the applicant on 2 December 1994.

On 9 December 1994 the applicant petitioned the Chief Justice of

the Supreme Court to lodge an extraordinary appeal on his behalf.

This was refused on 30 December 1994.

Relevant domestic law and practice:

Under Polish law a party claiming compensation for loss arising

from an unlawful decision issued by a domestic organ must first

establish the "unlawfulness" of the decision in question according to

the rules set out in the Code of Administrative Procedure.

Section 156 para. 1 of the Code of Administrative Procedure,

insofar as relevant, provides:

"1. An organ of public administration shall declare a decision

to be null and void if:

(...)

(2) the decision was given without a legal basis or contrary to

the law."

Compensation arising from an unlawful decision of a public organ

must first be resolved in administrative proceedings. Where a given

party is not satisfied with the compensation granted in such

proceedings, a claim may be lodged with the court competent to deal

with civil cases.

Section 160 of the Code of Administrative Procedure, insofar as

relevant, provides:

"1. A party injured as a result of the issue of a decision

subsequently declared null and void, under Section 156 para. 1

of the Code, has a claim for compensation for the amount of the

loss sustained by him.

(...)

4. The organ of public administration which annulled the

decision in question under Section 156 para. 1 shall decide on

the amount of the compensation.

5. If a party is not satisfied with the compensation granted

by an organ of public administration he may lodge a claim with

a competent court within thirty days from the date on which the

decision on compensation was served on him."

COMPLAINTS

The applicant complains under Article 6 para. 1 and Articles 7,

8, 13 and 14 of the Convention that he was denied access to a court for

the determination of his civil rights - in particular the right to

restore his reputation and dignity - and that he experienced

discrimination in that judicial authorities enjoy a too wide legal

protection under Polish law.

THE LAW

1. The applicant complains about lack of access to a court. He

relies on Article 6 para. 1 (Art. 6-1) of the Convention, which states,

insofar as relevant:

"In the determination of his civil rights and obligations (...)

everyone is entitled to a (...) hearing (...) by (a) (...)

tribunal established by law."

According to the Convention organs' case-law, Article 6 para. 1

(Art. 6-1) of the Convention secures to everyone the right to have any

claim relating to his civil rights and obligations brought before a

court or tribunal; in this way the Article embodies the "right to a

court", of which the right of access, that is the right to institute

proceedings before courts in civil matters, constitutes one aspect.

However, the right of access is not absolute but may be subject to

limitations since the right by its very nature calls for regulation by

the State. Nonetheless the limitations applied must not restrict or

reduce the access left to the individual in such a way or to such an

extent that the very essence of the right is impaired (see Eur. Court

HR, Philis v. Greece judgment of 27 August 1991, Series A, no. 209, p.

20-21, para. 59).

In the present case, the Commission notes that the applicant's

access to a civil court was only temporarily and conditionally

restricted. According to the domestic law, the applicant could not

claim compensation for loss arising from the order given by the Deputy

Chief Justice of the Opole Provincial Court until the decision in

question had been annulled in administrative proceedings and until

there had been a further favourable decision of a competent organ of

public administration concerning the amount of compensation. In other

words, the domestic law lays down specific conditions with regard to

persons who claim to be injured by an unlawful decision given by a

public body.

In the Commission's opinion, the criteria established by Polish

law for access to the court in such cases do not appear unreasonable.

It cannot therefore be said that the limitations applied in the

applicant's case impaired the very essence of his right of access to

a court within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

This part of the application is therefore manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant also invokes Article 13 (Art. 13) of the Convention

in support of his complaints. This provision states:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission, having regard to its considerations concerning

the applicant's complaints under Article 6 para. 1 (Art. 6-1) of the

Convention, takes the view that it does not have to examine the case

under Article 13 (Art. 13) as its requirements are less strict than,

and are here absorbed by, those of Article 6 (Art. 6) (see, inter alia,

Eur. Court HR, Philis v. Greece judgment of 27 August 1991, Series A,

no. 209, p. 23, para. 67).

It follows that this part of application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. Insofar as the applicant also invokes Articles 7, 8 and 14

(Art. 7, 8, 14) of the Convention in support of his complaints the

Commission finds no separate issue.

It follows that the remainder of 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 G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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DOBRANOWSKI v. POLAND

DOBRANOWSKI v. POLAND

LEXI