Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28240/95

by Jerzy WALICKI

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 15 December 1994

by Jerzy WALICKI against Poland and registered on 18 August 1995 under

file No. 28240/95;

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 1935, is a retired

engineer, residing in Bydgoszcz.

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

summarised as follows:

From 1961 the applicant worked at various engineering posts at

the State Railways engineering design branch in Gdansk. He retired in

1991, retaining an entitlement to reduced prices of railway tickets and

to use the medical care of the Railways' medical services as a part of

his retirement benefits.

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 23 March 1993 the applicant filed an action with the Gdansk

District Court (S*d Rejonowy), claiming that the Court should establish

that he was a retired employee from the State Railways and retained his

entitlement to reduced prices of railway tickets and to use the medical

care of the Railways' medical services.

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 8 June 1994 the Gdansk District Court dismissed the

applicant's action, finding in the light of relevant regulations that

the employees of the Railways' engineering design branch never had the

same status with regard to their labour rights and retirement

entitlements as other current and former employees of the Railways.

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 the judgment of 28 June 1994 the Constitutional Court declared

that the impugned provisions of the Entitlement to Public Transport Act

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

compatible with the Constitution.

On 18 October 1994 the Gdansk Regional Court (S*d Wojewódzki)

dismissed the applicant's appeal against the judgment of the Gdansk

District Court of 8 June 1994, finding that it was in accordance with

the law.

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 applicant complains under Article 3 of the Convention that

the taking away of his entitlements amounts to inhuman treatment.

He complains 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 Ombudsman's motion

and, as a result, its judgment was wrong. He further complains that

he could not participate in the proceedings before the Constitutional

Court in order to present his arguments.

The applicant also relies on Article 13 of the Convention.

The applicant complains under Article 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 LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention that the taking away of his entitlements amounts to inhuman

treatment.

Article 3 (Art. 3) of the Convention reads:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission observes that the treatment complained of

consisted of invalidation, by way of legislative intervention, of the

entitlement to purchase railway tickets at reduced prices and of the

entitlement to use the health care of the State Railways' medical

services. As regards the latter complaint, the Commission observes

that Article 3 (Art. 3) of the Convention does not guarantee a right

to certain specific health services. Moreover, in the circumstances

of the case no loss of or even danger to life or limb is involved. The

Commission considers that the treatment concerned did not attain the

threshold of inhuman or degrading treatment within the meaning of

Article 3 (Art. 3) of the Convention as established in the case-law of

the Convention organs (cf. Eur. Court HR, Ireland v. United Kingdom

judgment of 18 January 1979, Series A no. 25, p. 56, para. 162).

It follows that this complaint is manifestly ill-founded within

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

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

Convention that he could not participate in the proceedings before the

Constitutional Court and thus did not have an opportunity to present

his arguments to the Court.

Article 6 (Art. 6) of the Convention in its relevant part reads:

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

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

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 does not have

standing in the proceedings before the Constitutional Court. In the

present case the applicant was not a party to the proceedings before

this Court and the law did not allow him to be a party in such

proceedings. Therefore the proceedings at issue did not concern the

applicant's civil rights and obligations within the meaning of Article

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

inapplicable thereto.

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.

Insofar as the applicant's complaint can be understood as

relating to lack of access to the Constitutional Court in order to

challenge the compatibility of the legislation concerned with the

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

Convention does not guarantee a right of access to a court with

competence to invalidate or override a law (No. 14324/88, Dec. 19.4.91,

D.R. 69, p. 227). It follows that this complaint is manifestly ill-

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

Convention.

3. The applicant further complains of a breach of Article 13

(Art. 13) of the Convention which guarantees an effective domestic

remedy for breaches of the Convention. However, the case-law of the

Commission established that Article 13 (Art. 13) does not require a

remedy in domestic law for all claims alleging a breach of the

Convention; the claim must be an arguable one (Eur. Court HR, Boyle and

Rice v. United Kingdom judgment of 27 April 1988, Series A no. 131, p.

23, para. 52). In the light of the above conclusions concerning the

applicant's complaints under Articles 2 and 6 (Art. 2, 6) of the

Convention, the Commission finds that the applicant does not have an

arguable claim of a breach of these provisions which warrants a remedy

under Article 13 (Art. 13).

This part of the application must also, therefore, be rejected

as being manifestly ill-founded within the meaning of Article 27

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

4. The applicant complains 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 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 to 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.

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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WALICKI v. POLAND

WALICKI v. POLAND

LEXI