Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22842/93

by Krzysztof WAYGART

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 16 October 1992

by Mr. Krzysztof Waygart against Poland and registered on 29 October

1993 under file No. 22842/93;

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

summarised as follows:

The applicant, a Polish citizen born in 1956, is a lawyer

residing in Opole.

On 6 October 1987 the Katowice Regional Bar Council refused to

enrol the applicant as a trainee advocate on the ground that, although

he complied with the applicable requirements, other candidates were

better. The applicant appealed to the National Bar Council, to the

Minister of Justice, and also to the Supreme Administrative Court.

On 24 November 1988 the Supreme Administrative Court ordered the

Minister of Justice to reconsider the case on the ground that the

contested decision did not comply with the Code of Administrative

Procedure.

In its decision of 24 February 1989 the Minister of Justice

refused to allow the applicant's appeal as the employment quotas of the

trainee advocates in the Katowice Regional Bar Council were already

filled. The applicant lodged an appeal against this decision to the

Supreme Administrative Court.

On 18 January 1990 the Supreme Administrative Court again quashed

the contested decision.

On 3 March 1990 the Minister of Justice ordered the case to be

reconsidered by the Katowice Regional Bar Council. The applicant

lodged an appeal against this decision to the Supreme Administrative

Court. This appeal was declared inadmissible as the contested decision

was not final.

On 29 October 1990 the Katowice Regional Bar Council refused to

enrol the applicant, as the employment quotas in the region were

filled. The applicant lodged an appeal to the National Bar Council.

On 17 April 1991 the National Bar Council dismissed the appeal as the

argument of lack of available posts sufficed. The applicant appealed

to the Minister of Justice.

On 22 May 1991 the Minister of Justice decided to enrol the

applicant on the list of trainee advocates. However, the Katowice

Regional Bar Council appealed to the Supreme Administrative Court

against this decision and refused to allow the applicant to start

working as a trainee advocate.

On 13 June 1991 the applicant submitted a motion to the Minister

for an interpretation of his decision of 22 May 1991. The applicant

argued that as the decision admitted that he could have been enrolled

in 1987, he should be exempted from the requirement of taking the four

years' training as a trainee advocate as this period had expired. On

18 July 1991 the Minister refused to issue an interpretation as the

decision was sufficiently clear. The applicant appealed to the Supreme

Administrative Court, which in September 1991 rejected the appeal as

being out of time.

On 21 August 1991 the applicant brought a civil action to the

Katowice Regional Court against the Katowice Regional Bar Council and

the National Bar Council and against the State Treasury for

compensation for damages which he had suffered as a result of not

having been allowed to start working as a trainee advocate in

accordance with the decision of the Minister of Justice.

On 14 November 1991 the Katowice Regional Bar Council informed

the Supreme Administrative Court that in 1986 the applicant had been

arrested as he had committed the offence of insulting the police,

though no criminal proceedings had been instituted against him as he

enjoyed immunity as a judge.

On 6 January 1992 the Supreme Administrative Court quashed the

applicant's enrolment. The Court pointed out that the decision of the

Minister was both in conformity with applicable laws and correct

("prawidlowa") while the decisions of the Katowice Regional Bar Council

were not in conformity with law as the Council had failed to make an

assessment of the applicant's suitability to become an advocate as

provided for by the Law on the Bar. However, the Court considered

that the Minister's decision should be quashed as circumstances unknown

both to the Bar and the Minister at the time when the decisions

concerned had been taken came to light, suggesting that the applicant

possibly did not fulfil the requirement of an irreproachable character.

On 30 January 1992 the Katowice Regional Court dismissed the

applicant's civil action for compensation.On 10 February 1992 the

Minister of Justice ordered the case to be reconsidered by the Katowice

Regional Bar Council.

On 31 March 1992 the Katowice Regional Bar Council refused to

enrol the applicant in the list of trainee advocates as he had

committed a crime in 1986. The applicant appealed unsuccessfully to

the National Bar Council, to the Minister of Justice and to the Supreme

Administrative Court.

On 18 June 1993 the Supreme Administrative Court dismissed the

applicant's appeal against the decision of the Minister of Justice. In

these proceedings the Court was called upon to examine the lawfulness

of the contested decision. In its decision the Court concluded that

the assessment of the applicant's suitability to become a trainee

advocate was in accordance with the law as the incident caused by the

applicant justified the conclusion that he did not comply with the

requirement of irreproachable character.

COMPLAINTS

The applicant complains under Article 3 of the Convention that

the authorities subjected him to inhuman and degrading treatment in

that he was not allowed to become a lawyer, was prevented from

exercising any legal profession and was humiliated by the proceedings

complained of.

The applicant further complains under Article 6 of the Convention

that the proceedings were unfair as a whole; that the authorities in

question, including the Bar, the Minister of Justice and the courts,

both civil and administrative, were neither independent nor impartial;

and that these authorities based their decisions on the assumption that

the applicant had committed a crime and had breached numerous

applicable provisions of domestic law.

THE LAW

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

Convention that he was subjected to inhuman and degrading treatment in

the proceedings complained of. He also complains under Article 6

(Art. 6) of the Convention of the unfairness and the outcome of the

proceedings.

2. Insofar as the applicant's complaints relate to a period prior

to 1 May 1993, the Commission recalls that Poland recognised the

competence of the Commission to receive individual applications "from

any person, non-governmental organisation or group of individual

claiming to be a victim of a violation by Poland of the rights

recognised in the Convention through any act, decision or event

occurring after 30 April 1993."

It follows that this part of the application 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).

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

Convention of an inhuman and degrading treatment in that he was not

allowed to become a lawyer, was prevented from exercising any legal

profession and was humiliated by the proceedings complained of.

The Commission has examined this complaint in respect of the

proceedings taking place after 1 May 1993. It observes that the

treatment complained of does not attain the threshold of inhuman of

degrading treatment within the meaning of Article 3 (Art. 3) of the

Convention as established in the case-law of the Convention (cf. Eur.

Court H.R., 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.

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

Convention of the unfairness of the proceedings and of their outcome.

The Commission considers that proceedings concerning admission

to a profession such as in the present case come within the ambit of

Article 6 (Art. 6) of the Convention (see Eur. Court H.R., the De Moor

v. Belgium judgment of 23 June 1994, Series A no. 292-A, para. 43).

The Commission has examined the applicant's complaints in respect

of the period after 1 May 1993. However, under Article 19 (Art. 19)

of the Convention its only task is to ensure the observance of the

obligations undertaken by the Parties to the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers on this point to its established

case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 p. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 p. 31, 45).

It is true that the appicant also complains under Article 6 para.

1 (Art. 6-1) of the Convention about the unfairness of the proceedings

before the Supreme Administrative Court. The Commission notes that

this Court was only called upon to examine the lawfulness of the

contested decision of the Minister of Justice. In its decision of 18

June 1993 it found that the assessment of the applicant's suitability

to become an advocate was made in accordance with the Law on the Bar.

There is no indication that in these proceedings the applicant could

not duly put forward his own submissions or that the proceedings were

otherwise unfairly conducted.

The remainder of the application is therefore 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.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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WAYGART v. POLAND

WAYGART v. POLAND

LEXI