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AS TO THE ADMISSIBILITY OF

Application No. 25395/94

by Stanislaw REMUSZKO

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 27 June 1994 by

Mr. Stanislaw Remuszko against Poland and registered on 7 October 1994

under file No. 25395/94;

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 1948, is a journalist

residing in Warsaw.

On 12 January 1993 the applicant requested the Minister of

Internal Affairs to issue a certificate that the applicant had never

been an informant of the communist secret police.

On 26 January 1993 the Ministry informed the applicant that such

a certificate could only be issued on the condition that the applicant

indicated a specific purpose for which such certificate might serve.

On 9 March 1993 the applicant stated that he needed the

certificate as he was a candidate to the local municipal council and

the certificate would enhance his prospects of election.

On 24 March 1993 the Ministry informed the applicant that his

request could not be granted as he had not shown that he had any legal

interest in having the certificate issued. Upon the applicant's

enquiry the Ministry informed him on 16 April 1993 that the applicable

regulations were in the Labour Code which obliged an employer to issue

a certificate of employment upon termination of the employment

contract.

On 27 April 1993 the applicant pointed out in a letter to the

Minister that he had not requested a certificate about employment.

On the contrary, he wished that the Minister issued an certificate that

he had never been employed by the Ministry.

On 13 May 1993 the Ministry advised the applicant that there was

no legal obligation for any employer to issue a certificate that

person had not been employed by him. Thus, no certificate would be

issued as the reasons given by the applicant were insufficient.

On 26 July 1993 the applicant requested the Minister to issue the

refusal in the form of an administrative decision as provided for by

law.

On 31 August 1993 the Minister issued an interim decision to

refuse the required certificate as the applicant's request did not

comply with the applicable provisions of the Code of the Administrative

Procedure.

On 9 September 1993 the applicant appealed against this decision

to the same Minister, claiming that the Minister had previously issued

such a certificate to a high official. The applicant pointed out that

the refusal should be issued as a proper final administrative decision

on the merits.

On 20 October 1993 the Minister confirmed his previous decision

and also informed the applicant that no further appeal to the Supreme

Administrative Court was possible.

The applicant's further appeal was rejected on 18 January 1994

by the Supreme Administrative Court which found that the Minister had

acted in conformity with the law. Moreover, the appeal to the Court

was not possible as it could only deal with appeals against final

administrative decisions on the merits.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

he was denied access to court in that the Minister of Internal Affairs

issued an interim decision against which there was no appeal to the

Supreme Administrative Court. He submits that the refusal to issue the

requested certificate was in breach of the principle of equality before

the law and non-discrimination as the Minister had previously issued

such a certificate to another high official.

Under Article 13 of the Convention he complains that he had no

effective remedy to complain about this breach as it was the Minister

of Internal Affairs who decided in first and second instance.

THE LAW

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

Convention that he was denied access to court through the fact that an

interim decision was issued against which there was no appeal to the

Supreme Administrative Court.

Article 6 (Art. 6) of the Convention states, insofar as relevant:

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

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

The Commission recalls that Article 6 (Art. 6) is not applicable

to proceedings concerning the recognition of a "right" which has no

legal basis in the State in question (No. 12763/87, Dec.14.7.88,

D.R. 57 p. 216).

In the present case the applicant wished to have a certificate

issued to the effect that he had never been an informant of the

communist secret police. It is true that his right to enjoy a good

reputation may constitute a "civil right" within the meaning of Article

6 (Art. 6) of the Convention. However, even though the certificate

requested by the applicant could be conceived as a measure aimed at a

protection of his good reputation, what was at issue was not his

reputation as such, but his claim to receive a certificate. It does

not transpire from the applicant's submissions that the domestic law

provides for a right to receive such a certificate from the Minister

of Internal Affairs, nor that there are specific provisions indicating

the persons entitled to obtain such a certificate and the applicable

procedures. Thus 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. Therefore this provision is

not applicable.

It follows that this part of the application is incompatible

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

of the Convention.

2. Under Article 13 (Art. 13) of the Convention the applicant

complains that he had no effective remedy at his disposal to complain

about the above as it was the Minister of Internal Affairs who in the

administrative proceedings decided in first and second instance.

However, the Commission has found that Article 6 (Art. 6) of the

Convention is inapplicable to the proceedings at issue. It follows

that the complaint under Article 13 (Art. 13) of the Convention is also

incompatible ratione materiae with 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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REMUSZKO v. POLAND

REMUSZKO v. POLAND

LEXI