Lexploria

AS TO THE ADMISSIILITY OF

Application No. 27701/95

by Antoni BERNATEK and 43 others

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 October 1996, 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

L. LOUCAIDES

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 28 December 1994

by Antoni BERNATEK and 43 others against Poland and registered on 26

June 1995 under file No. 27701/95;

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 applicants, a group of 44 persons, listed in the Annex, are

members of the branch of the "Solidarnosc" Trade Union in the Railways'

Engineering Design Office in Lublin. They were previously employed by

that Office but are now retired.

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

summarised as follows:

On 1 January 1992 the Railways' engineering design branch was

detached from the general structure of the Railways and given a

separate status.

On 20 June 1992 the Act on the Entitlement to Public Transport

Free of Charge or at Reduced Prices was enacted. It provided in

Article 7 that entitlements to the tickets at reduced prices were in

principle abolished, with certain exceptions only. It further

invalidated relevant provisions of numerous industrial collective

agreements, concerning many categories of civil servants. Its Article

8 provided that the public transport companies could maintain such

entitlement for their employees and retired employees, should they wish

to do so.

On 12 January 1993 the State Railways' Director General issued

an Order No. 4, which maintained the entitlement to reduced prices of

the tickets for its retired employees, but took this entitlement away

from the retired employees of the Railways' engineering design branch.

The Order further took away the entitlement to use the Railways'

medical services for this group of retired employees in view of the

fact that in 1991 this branch had been detached from the general

structure of the Railways and given a separate status.

On 17 November 1993 the Ombudsman requested that the

Constitutional Court (Trybunal Konstytucyjny) examine whether Articles

7 and 9 of the Act on the Entitlement to Public Transport Free of

Charge or at Reduced Prices were compatible with the Constitution, in

particular its Articles 1, 67 paras. 1 and 2 and 70 paras. 1 and 2 (1).

The Ombudsman further requested that the Court determine whether the

Order No. 4 of 12 January 1993 was compatible with certain statutes and

in particular with Article 8 of the Act on the Entitlement to Public

Transport Free of Charge or at Reduced Prices, and with Articles 1, 67

paras. 1 and 2 and 70 paras. 1 and 2 (1) of the Constitution. The

National Committee of the "Solidarnosc" Trade Union submitted a similar

request.

On 21 June 1994 the Constitutional Court held a hearing. The

Court heard the representatives of the Ombudsman and of the

"Solidarnosc" Trade Union, of the Parliament, of the Ministry of

Transport and of the Prosecutor General.

In a judgment of 28 June 1994 the Constitutional Court declared

that the impugned provisions of the Act on the Entitlement to Public

Transport Free of Charge or at Reduced Prices and of the Director

General's Order No. 4 of 12 January 1993 were compatible with the

Constitution.

Relevant domestic law

Article 33 of the Polish Constitution of 1952 which remains in

force by virtue of Article 77 of the Constitutional Act of

17 October 1992 provides that the Constitutional Court gives rulings

on the conformity of legislation with the Constitution. It also

promulgates binding interpretations of law.

Articles 22 and 23 of the Constitutional Court Act provide an

exhaustive list of institutions who can request the Court to decide

whether a particular regulation is compatible with the Constitution or

with statutes. This list includes the President, the Presidium of the

Parliament, the parliamentary commissions, a group of fifty members of

the Parliament, the Presidium of the Senate, the commissions of the

Senate, a group of thirty senators, the State Tribunal, the Government,

the Prime Minister, the Ombudsman, the President of the Highest Audit

Chamber, the President of the Supreme Court, the President of the

Supreme Administrative Chamber and the General Prosecutor. Such

requests can also be submitted by the municipalities and national

headquarters of certain associations.

There is no individual constitutional complaint to the Court

under Polish law as a remedy against decisions of the courts or

administrative authorities, nor can individual citizens submit requests

for rulings on the compatibility of laws with the Constitution.

COMPLAINTS

The applicants complain under Article 6 of the Convention that

the proceedings before the Constitutional Court were unfair in that the

Court failed in its duty to examine carefully the motions of the

Ombudsman and of the National Commission of the "Solidarnosc" Trade

Union and wrongly interpreted relevant legal provisions. As a result,

its judgment was wrong and not in conformity with the law. The

applicants complain that the judgment of the Constitutional Court

deprived them of access to court in that they cannot any more claim

their entitlements before the courts.

The applicants complain under Article 14 of the Convention that

the legislation concerned amounts to discrimination against the former

employees of the Railways' engineering design branch as their lawfully

acquired entitlements were taken away from them whereas the other

retired employees of the Railways retained theirs.

The applicants complain under Article 1 of Protocol No. 1 to the

Convention that their right to peaceful enjoyment of their property was

breached by the judgment of the Constitutional Court which sanctioned

the taking away of their lawfully acquired entitlements.

THE LAW

1. The applicants complain under Article 6 (Art. 6) of the

Convention that the proceedings before the Constitutional Court were

unfair in that the Court failed in its duty to examine carefully the

motions of the Ombudsman and of the National Commission of the

"Solidarnosc" Trade Union and wrongly interpreted relevant legal

provisions. The applicants complain that the judgment of the

Constitutional Court deprived them of access to court in that they

cannot any more claim their entitlements before the courts.

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 ... hearing ... by an independent

and impartial tribunal ..."

The Commission recalls that the applicability of Article 6

(Art. 6) of the Convention depends on whether the proceedings at issue

concern the determination of "civil rights and obligations". The

Commission observes that under Polish law an individual or a local

branch of trade unions do not have standing in the proceedings before

the Constitutional Court. In the present case, whereas it is true that

the outcome of the proceedings had a bearing on entitlements of the

persons represented by the applicant trade union, they were not a party

to the proceedings. Therefore the proceedings at issue did not concern

their civil rights and obligations within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention. Thus this provision is

inapplicable to these proceedings.

As regards the complaint of lack of access to court in

consequence of the Constitutional Court's judgment, the Commission

recalls that, whereas it is true that the concept of "civil rights"

within the meaning of Article 6 (Art. 6) of the Convention is

autonomous to a certain extent, the Commission cannot, in interpreting

this provision, create substantive rights which have no basis under

domestic law (No. 9310/81, Dec. 16.10.85, D.R. 44 p. 13).

In the present case, the Constitutional Court having examined the

motions of the Ombudsman and the National Commission of the

"Solidarnosc" Trade Union declared that the impugned provisions of the

Act on the Entitlement to Public Transport Free of Charge or at Reduced

Prices and of the Director General's Order No. 4 of 12 January 1993,

in that they had taken away the entitlements in question from the

retired employees of the Railways' engineering design branch, were

compatible with the Constitution. Consequently, it became clear that

under the domestic law the applicant trade union cannot claim this

entitlement before the courts. Accordingly, the right of access to

court cannot be derived from Article 6 (Art. 6) of 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.

2. The applicants complain under Article 14 (Art. 14) of the

Convention that the legislation concerned amounts to discrimination

against the former employees of the Railways' engineering branch as

their lawfully acquired entitlements were taken away from them whereas

the other retired employees of the Railways retained theirs.

The Commission recalls that Article 14 (Art. 14) has no

independent existence, but only complements the other substantive

provisions of the Convention and its Protocols, since it has effect

solely in relation the rights and freedoms safeguarded by those

provisions (see Eur. Court HR, Inze v. Austria judgment of 28 October

1987, p. 17, para. 36). The Commission considers that no separate issue

arises under this provision of the Convention.

It follows that this part of the application is also manifestly

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

Convention.

3. The applicants complain under Article 1 of Protocol No. 1 (P1-1)

to the Convention that their right to peaceful enjoyment of their

property was breached by the judgment of the Constitutional Court which

sanctioned the taking away of their lawfully acquired entitlements.

Article 1 of Protocol No. 1 (P1-1) to the Convention in its

relevant part reads:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law."

It is true that the entitlements in question may be considered

as property rights, given that they represent a certain pecuniary

value.

The Commission nevertheless recalls that Poland ratified Protocol

No. 1 to the Convention on 10 October 1994. In accordance with the

generally recognised principles of international law, the Commission

is not competent to examine complaints relating to alleged violations

of the Protocol by acts, decisions or events that have occurred prior

to this date.

The Commission recalls that in the present case the judgment of

the Constitutional Court was pronounced on 28 June 1994. The Court

found in this judgment that the legislation passed on 20 June 1992 and

on 12 January 1993 was not incompatible with the Constitution. These

acts all occurred prior to 10 October 1994, i.e. the date of the

ratification by Poland of Protocol No. 1 to the Convention. Insofar as

the applicants' complaint might be understood as implying that these

decisions created a continuing situation of deprivation of their

property rights, the Commission recalls that deprivation of property

rights is in principle an instantaneous act and does not produce a

continuing situation of "deprivation of property" (No. 7742/76,

Dec. 4.7.78, D.R. 14 p. 146; No. 26078/94, Dec. 17.5.95, unpublished).

It follows that this complaint is outside the competence ratione

temporis of the Commission and therefore incompatible with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2).

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

ANNEX

Applicants in Application No. 27701/95, introduced on

28 December 1994

1. Antoni Bernatek, born in 1930, residing in Lublin.

2. Józef Bialas, born in 1923, residing in Lublin.

3. Zofia Josko, born in 1938, residing in Lublin.

4. Edward Kolcon, born in 1937, residing in Lublin.

5. Henryk Kowalczyk, born in 1928, residing in Lublin.

6. Zdzislaw Olesinski, born in 1925, residing in Lublin.

7. Eugeniusz Rzepiela, born in 1932, residing in Lublin.

8. Janina Rutkiewicz, born in 1926, residing in Lublin.

9. Helena St*pniak, born in 1924, residing in Lublin.

10. Zofia Tr*bka, born in 1937, residing in Lublin.

11. Genowefa Kostrzewska, born in 1930, residing in Lublin.

12. Zofia Krupa, born in 1936, residing in Lublin.

13. Lucyna Jablonska, born in 1946, residing in Lublin.

14. Barbara Michalak, born in 1937, residing in Lublin.

15. Wieslawa Górna, born in 1931, residing in Lublin.

16. Zofia Turowska, born in 1934, residing in Lublin.

17. Aleksander Nowicki, born in 1936, residing in Lublin.

18. Henryk Z*bek, born in 1928, residing in Lublin.

19. Halina Piskiewicz, born in 1931, residing in Lublin.

20. Wojciech Szajner, born in 1933, residing in Lublin.

21. Genowefa Hanys, born in 1919, residing in Lublin.

22. Antoni Kozak, born in 1914, residing in Lublin.

23. Nasilenko Wladyslaw, born in 1920, residing in Lublin.

24. Stanislawa Por*ba, born in 1917, residing in Lublin.

25. Natalia Rek, born in 1915, residing in Lublin.

26. Edward Smalec, born in 1924, residing in Trawniki.

27. Leokadia Maliszewska, born in 1926, residing in Lublin.

28. Henryk Dobrowolski, born in 1921, residing in Lublin.

29. Janusz Link, born in 1923, residing in Lublin.

30. Irena Stankiewicz, born in 1926, residing in Lublin.

31. Stanislaw Dziwisinski, born in 1923, residing in Lublin.

32. Krystyna Kozlowska, born in 1936, residing in Lublin.

33. Krystyna Lukomska, born in 1932, residing in Lublin.

34. Jerzy Ozimkiewicz, born in 1943, residing in Lublin.

35. Mieczyslaw Skowronski, born in 1929, residing in Lublin.

36. Witold Sochan, born in 1935, residing in Lublin.

37. Gustaw Teresinski, born in 1936, residing in Lublin.

38. Adam Horszczaruk, born in 1934, residing in Swidnik.

39. Halina Dys, born in 1950, residing in Lublin.

40. Edward Czechowski, born in 1941, residing in Lublin.

41. Tomasz Plechawski, born in 1936, residing in Lublin.

42. Jerzy Sady, born in 1929, residing in Lublin.

43. Józef Swircz, born in 1935, residing in Lublin.

44. Stanislaw Skobalski, born in 1941, residing in Lublin.

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BERNATEK AND 43 OTHERS v. POLAND

BERNATEK AND 43 OTHERS v. POLAND

LEXI