Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27702/95 Application No. 28355/95

by Janusz KWASKIEWICZ by Daniel SUTARZEWICZ

against Poland against Poland

Application No. 28237/95 Application No. 28556/95

by Mieczyslaw LESNIEWSKI by Wieslaw GORCZAK

against Poland 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 applications introduced on 12 December 1994,

6 December 1994, 12 December 1994 and 20 November 1994 by Janusz

KWASKIEWICZ, Mieczyslaw LESNIEWSKI, Daniel SUTARZEWICZ and Wieslaw

GORCZAK against Poland and registered on 26 June 1995, 18 August 1995,

29 August 1995 and 18 September 1995 under files No. 27702/95,

28237/95, 28355/95 and 28556/95;

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 facts, as submitted by the applicants, may be summarised as

follows:

The applicants are four Polish citizens. J. Kwaskiewicz and D.

Sutarzewicz are born in 1934 and 1925 respectively. M. Lesniewski and

W. Gorczak are born in 1930. M. Lesniewski is a retired technician,

residing in Pruszków, the other applicants are retired engineers,

residing in Warsaw.

All of them worked at the State Railways, respectively as from

1956, 1954, 1950 and 1951. They retired from the post in the Railways'

engineering design branch respectively in December 1992, December 1990,

October 1990 and in January 1990.

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 the 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 2 of the Convention that

their right to life was breached in that they lost an entitlement to

the medical care in the railway health services.

The applicants complain under Article 4 of the Convention that

their former employer, by taking away their lawfully acquired

entitlements, disregarded entirely its obligations towards them. They

submit that their additional entitlements compensated for the low

salary and that due to the decisions concerned their work acquired

retrospectively a character of forced labour. They complain that their

retirement pensions are now lower than they would have been had they

worked elsewhere.

The applicants complain under Article 6 of the Convention that

the proceedings before the Constitutional Court were unfair in that the

representatives of the railway engineering design branch pensioners

were not allowed to present their position to the Court. They submit

that the outcome of the proceedings is unfair.

The applicants complain that the Constitutional Court did not

rule on the issue of their entitlement to medical care in the Railway

medical services.

The applicants complain under Article 14 of the Convention that

the impugned decision of the Constitutional Court amounted to

discrimination against the former employees of the Railways'

engineering branch. They submit in this respect that the Court stated

in its judgment that the special privileges of certain groups of

retired employees "were characteristic of the (socialist) system and

now they are its remainder".

THE LAW

1. In view of their similarity, the Commission finds it appropriate

to join the applications under Rule 35 of its Rules of Procedure.

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

Convention that their right to life was breached in that they lost an

entitlement to medical care in the Railway health services.

Article 2 (Art. 2) of the Convention, insofar as relevant, reads:

"1. Everyone's right to life shall be protected by law. No one

shall be deprived of his life intentionally save in the

execution of a sentence of a court following his conviction

of a crime for which this penalty is provided by law."

The Commission observes that this provision 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. Therefore the situation complained of

does not amount to a breach of the applicants' right to life within the

meaning of Article 2 (Art. 2) of the Convention. It follows that this

part of the application is manifestly ill-founded within the meaning

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

3. The applicants complains under Article 4 (Art. 4) of the

Convention that due to the decisions concerned their work acquired

retrospectively a character of forced labour.

Article 4 (Art. 4) of the Convention, insofar as relevant,

provides:

"2. No one shall be required to perform forced or compulsory

labour."

Insofar as the applicants complain that as a result of the

impugned decisions their work acquired retrospectively a character of

forced labour, even assuming that such retroactive effect of the

decision concerned could be considered, the Commission recalls that

Poland recognised the competence of the Commission to receive

individual applications "from any person, non-governmental organisation

or group of individuals claiming to be a victim of a violation of the

rights recognised in the Convention through any act, decision or event

occurring after 30 April 1993". In accordance with this limitation in

the Polish declaration, the Commission is not competent to examine

complaints relating to violations of the Convention by acts, decisions

or events that have occurred prior to this date. Therefore this

complaint is outside its competence ratione temporis and must be

rejected as being incompatible with the provisions of the Convention

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

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

Convention that the proceedings were unfair in that the persons whose

entitlement was at stake were not heard at the hearing before the

Constitutional Court. They were thus deprived of the opportunity to

present their arguments to the Court. They submit that the outcome of

the proceedings is unfair. The applicants complain that the

Constitutional Court did not rule on the issue of their entitlement to

the medical care in the railway medical services.

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 ... 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 does 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 an influence on the applicants' entitlements, they were not and

could not be a party to the proceedings. Therefore the proceedings at

issue did not concern the applicants' 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 applicants' complaint can be understood as

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

challenge the compatibility with the Constitution of the legislation

concerned, 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, Rep. 14.9.91,

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.

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

Convention that the impugned decision of the Constitutional Court

amounted to discrimination against the former employees of the

Railways' engineering design branch.

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 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,

1. DECIDES TO JOIN THE APPLICATIONS,

2. DECLARES THE APPLICATIONS INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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KWASKIEWICZ, LESNIEWSKI, SUTARZEWICZ AND GORCZAK v. POLAND

KWASKIEWICZ, LESNIEWSKI, SUTARZEWICZ AND GORCZAK v. POLAND

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