THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39860/98

by Ryszard SKÓRKIEWICZ

against Poland

The European Court of Human Rights ( Third Section) sitting on 1 June 1999 as a Chamber composed of

Sir Nicolas Bratza , President ,

Mr J.-P. Costa,

Mr L. Loucaides ,

Mrs F. Tulkens ,

Mr W. Fuhrmann ,

Mr K. Jungwiert ,

Mr K. Traja , Judges ,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 September 1996 by Ryszard SKÓRKIEWICZ against Poland and registered on 16 February 1998 under file no. 39860/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1928, is retired and resides in Sosnowiec .

The facts of the case as submitted by the applicant may be summarised as follows:

Particular circumstances of the case

In May 1993 the Veterans and Persecuted Persons Office (Urząd do Spraw Kombatantów i Osób Represjonowanych ) informed the applicant that the Office had instituted ex officio proceedings pursuant to the February 1991 Act on Veterans and Persecuted Persons (“the 1991 Act”) during the post-war period in order to verify whether under this legislation the applicant was entitled to retain his veteran status.  The applicant was requested to furnish information relating to the grounds on which he had acquired this status in accordance with the provisions of the 1982 Veterans Act (“the 1982 Act”).

By a letter of 7 June 1993 the applicant informed the Office that during the Second World War he had participated in the activities of the Polish underground Home Army ( Armia Krajowa ), that during his service in the Civil Militia ( Milicja Obywatelska ) in Sosnowiec in 1945 he had been carrying out normal police duties such as maintaining public order, and that he had participated in combating the Werwolf , the post-war Nazi underground paramilitary organisation.

By a decision of 2 July 1993 the Director of the Veterans and Persecuted Persons Office divested the applicant of his veteran status.  It was established that the applicant had served from 1 February to 30 March 1945 in the former Civil Militia. In his application for admission to the Union of Fighters for Freedom and Democracy, which the applicant had submitted in 1979, he had stated that during his service he had actively participated in the armed struggle by the reactionary underground resistance.  In his curriculum vitae which had been attached to this application, the applicant had stated that “immediately after the liberation of Sosnowiec ... I had started my service in the Station III of the Civil Militia in Sosnowiec from where I had been sent to participate in the armed struggle with bands and with the reactionary underground resistance (“ natychmiast po wyzwoleniu Sosnowca ... rozpocząłem pracę w III Komisariacie w Sosnowcu , skąd byłem włączony do walk z bandami i reakcyjnym podziemiem ”). The applicant had subsequently acquired his veteran status by virtue of a decision of the Union of 7 May 1979, made on the basis of a certificate issued by the Katowice Regional Headquarters of the Civil Militia. This certificate had confirmed that he had been serving therein from 1 February to 30 March 1945 and that throughout this period he had participated in the armed struggle by the reactionary underground resistance forces. The Director considered that the applicant fell within the scope of Article 25 read together with Article 21 of the 1991 Act which provided, inter alia , that persons who had served in the former internal security services were to be divested of their veteran status.  As the applicant belonged to the category of persons who, under the applicable legal provisions, were to be deprived of veteran status, the decision was justified and in accordance with the law.

The applicant lodged an appeal against this decision. He argued that the decision was unlawful. He emphasised that he had been serving in the Civil Militia for two months and that his participation in fighting armed Nazi groups during the war could not be regarded as a struggle to consolidate people’s power.

On 22 April 1994 the Supreme Administrative Court quashed the decision under appeal. The Court considered that the administrative authority had failed to establish all facts relevant for the legal assessment of the applicant’s case in that it had entirely disregarded the contents of the applicant’s letter of 7 June 1993 in which he had stated that he had been involved in the clandestine fight of the Home Army against the German troops occupying Poland and that his service in the Civil Militia had consisted of fighting the Werwolf and of ordinary police functions such as maintaining public order.  The Court observed that, under Article 1 item 2 of the 1991 Act, combating the Werwolf was to be regarded as giving rise to veteran status. Thus, the administrative authority had to establish what armed forces had been active near Sosnowiec during the applicant’s service and what had been the armed formations in which the applicant had fought.

On 31 May 1995 the Director of the Veterans and Persecuted Persons Office divested the applicant of his veteran status.

The administrative authority took into consideration a reply of the Katowice Regional Police Headquarters to its request of 12 April 1995 for detailed information concerning the applicant’s service in the Civil Militia. It had been stated in this reply of 4 May 1995 that it had not transpired from the applicant’s personal file that during his service he had participated in the armed combat of any organisation’s fight for the independence of Poland. Therefore, as the applicant’s veteran status had been awarded to him on the basis of his participation in the struggle to consolidate people’s power (“ utrwalanie w ł adzy ludowej ”), he had to be divested of this status pursuant to Article 25 item 2 (2) of the 1991 Act.

On the same day, 31 May 1995, the Director of the Veterans and Persecuted Persons Office refused to grant the applicant veteran status on the basis of his service in the Home Army ( Armia Krajowa ) during the Second World War, considering that the documents submitted in support of his claim were wholly inadequate to establish the relevant facts and, consequently, to grant such status (“ nie dają absolutnie podstaw do przyznania uprawnień kombatanckich ”).

The applicant again appealed to the Supreme Administrative Court against both decisions. He submitted that both decisions were unlawful. He argued that he could not reasonably be expected to submit any new evidence relating to his service in the Home Army, and in particular any testimony of living witnesses, given the lapse of time since the relevant events.

On 2 December 1996 the Supreme Administrative Court dismissed the applicant’s appeal against the withdrawal of his veteran status on the basis of his service in the Civil Militia.

The Court had regard to the fact that the administrative authority, following the Court’s judgment of 22 April 1994, had held an enquiry as to the nature of the applicant’s activities during his service in the Militia in 1945.  In the light of the letter of the Katowice Regional Headquarters of 4 May 1994, it could not be established that the applicant had in fact participated in “consolidating the people’s power”. Therefore, the original decision of 1979 bestowing veteran status on the applicant had lacked any sound factual basis. Consequently, the Court concluded that the contested decision divesting the applicant of this status was in conformity with the law.

The Court further set aside the decision concerning the refusal to grant veteran status to the applicant in respect of his service in the Home Army and remitted the case for reconsideration by the first-instance authority. The Court considered that the administrative authority, when considering that the evidence submitted by the applicant was “wholly inadequate” for a finding that he had in fact served therein, had significantly overstepped the margin of appreciation applicable in the assessment of evidence, as set out in the relevant provisions of the Code of Administrative Procedure. These proceedings are apparently still pending.

Relevant domestic law

1. Veteran status

The Law of 24 January 1991 on Veterans and Other Victims of War and Post-War Repression repealed the Law of 26 May 1982 on the Special Status of Veterans. Under the 1982 Act, participation in the armed struggle against the reactionary underground resistance (“ walka o utrwalenie władzy ludowej ”) gave rise to the entitlement to veteran status.

The 1991 Act enacted new criteria on which veteran status can be granted. Pursuant to Article 1 of the 1991 Act, the following persons, inter alia , are entitled to acquire veteran status:

a) those having served in the Polish Army ( Wojsko Polskie ) and in the Polish military formations organised during the Second World War within the Allied armies;

b) those having served in the Polish underground resistance organisations, including military formations organised in the framework of these organisations from 1939 to 1945;

c) those having served in the Allied armies and in the underground resistance organisations operating in the territories of the Allies in 1939-1945, with the exception of the NKVD and other special organisations acting to the detriment of the Polish nation;

d) those having served in the Polish underground military formations and organisations fighting for the independence of Poland within the borders of Poland before 1 September 1939 and within the Polish post-war borders, in the period from the arrival of the Army of the Union of the Socialist Soviet Republics (USSR) on Polish territory until 1956;

e) those having served in the armed struggle against the formations of the Ukrainian Uprising Army (UPA) and against the Werwolf .

The 1991 Act took away the entitlement to veteran status accorded by virtue of the 1982 Act from certain categories of persons who had served in the 1940s and 1950s in various organisations and State organs whose purpose was to combat the political opponents of the

communist regime. In particular, Article 25 of the Act provides, inter alia , that a person who had served in the Internal Public Security Service (" aparat bezpieczeństwa publicznego ") was not entitled to acquire veteran status, and those persons who had acquired it, were to be divested of it.

The Internal Public Security Service is defined as being the State organs, partly comprising special armed forces and political police, modelled on the NKVD and the KGB, established on 21 July 1944 with a view to combating, suppressing and eliminating groups of political opposition, including the post-war underground resistance against Communism.  These organs were also competent to conduct criminal investigations under the rules of criminal procedure.  They were, depending on political circumstances, called variously: the "Department of Public Security" (Resort Bezpieczeństwa Publicznego ) (July 1944 - January 1945), the "Ministry of Public Security" ( Ministerstwo Bezpieczeństwa Publicznego ) (January 1945 - December 1954), the "Committee for Public Security" ( Komitet do Spraw Bezpieczeństwa Publicznego ) (1954-1956) and the "Security Service" ( Służba Bezpieczeństwa ), i.e. a special department of the Ministry of the Interior (1956-1990).

Under the 1982 Act, which was subsequently replaced by the 1991 Act, veteran status gives rise to various special employment and social insurance entitlements. The periods of veteran service are taken into account in calculating the periods giving rise to seniority. The same periods are multiplied by two in calculating periods giving rise to a retirement pension. Veterans who remain in employment are entitled to ten days' additional paid leave per year. They are entitled to retire earlier than other employees: women at the age of 55, and men at the age of 60, if they have satisfied another requirement for the acquisition of a retirement pension, i.e. if they have worked for periods set out in the Retirement Pensions Act.  The retired veterans are further entitled to the special veterans' benefit, paid together with their retirement pension as a certain fixed sum.

Article 26 of the 1991 Act provides that persons who have lost their veteran status which was granted to them on the basis of the 1982 Act, retain the social insurance benefits to which they are entitled pursuant to the generally applicable social insurance laws, in particular the laws governing retirement pensions. Pursuant to Article 25 § 4 of the 1991 Act, if a decision is appealed to the Supreme Administrative Court, the rights stemming from the veteran status are suspended until a final judgment is given.

2. The appeal procedure against administrative decisions

Article 196 § 1 of the Code of Administrative Procedure, as applicable at the material time, provided that an appeal could be lodged against an administrative decision with the Supreme Administrative Court on the ground that it was not in conformity with the law. Article 207 § 2 stated that the Court could set the decision aside wholly or in part if it established that the decision had been in breach of substantive law, that the proceedings leading to the decision had been flawed with such procedural errors that the decision should be null and void, or if such procedural shortcomings had occurred which would justify a reopening of the proceedings.

COMPLAINTS

The applicant complains that the decision of the Director of the Veterans and Persecuted Persons Office on 31 May 1995 to divest him of his veteran status was in breach of Article 1 of Protocol No. 1 to the Convention because he was thereby also divested of his lawfully acquired rights and social insurance entitlements, contrary to the Polish Constitution of 1952 in force at that time, and in violation of the generally recognised principles of international law which protect lawfully acquired rights.

The applicant further invokes Article 14 of the Convention and submits that he was discriminated against on the grounds of his service in a military formation, which fell out of favour with the political power in Poland after communism ended. 

The applicant complains under Article 6 of the Convention that the proceedings in his case were unfair in that he did not have access to an independent and impartial court as it was the administrative authority which had a final say in the matter, and that the proceedings exceeded a reasonable time.

The applicant further complains that the decision concerned was in breach of Article 7 of the Convention as he was penalised for his service in the former Civil Militia in 1945 despite the fact that it did not amount to a criminal offence at that time.

THE LAW

1. The applicant complains that the decision of the Director of the Veterans and Persecuted Persons Office on 31 May 1995 to divest him of his veteran status was in breach of Article 1 of Protocol No. 1 to the Convention in that his lawfully acquired rights and social insurance entitlements were taken away from him.

Article 1 of Protocol No. 1 to the Convention reads as follows:

“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.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court observes that Poland ratified this Protocol on 10 October 1994. The first administrative decision, which deprived the applicant of his veteran status, was taken on 2 July 1993. Pursuant to Article 25 § 4 of the 1991 Act, if a decision divesting a person of his or her veteran status is appealed to the Supreme Administrative Court, the payment of entitlements stemming from the veteran status is suspended until a final judgment is taken. Thus, the Court is competent ratione temporis to examine this complaint, regard being had to the fact that the final decision in the case, the judgment of the Supreme Administrative Court, was taken on 2 December 1996 and that it was this decision which definitively deprived the applicant of his veteran status and his social insurance rights stemming therefrom.

In the meantime, the applicant had instituted separate proceedings in which he claimed that veteran status be awarded to him, arguing that he satisfied another set of the relevant requirements laid down by the 1991 Act. By its judgment of 2 December 1996 the Supreme Administrative Court set aside the administrative decision given in these second proceedings and remitted the case for reconsideration by the competent administrative authority. These proceedings are apparently still pending. However, the Court considers that it is not necessary to examine whether the applicant has exhausted domestic remedies in respect of his complaint under Article 1 of Protocol No. 1 of the Convention, as this complaint must in any event be declared inadmissible for the following reasons.

The Court recalls that the making of contributions to a pension fund may, in certain circumstances, create a property right and such a right may be affected by the manner in which the fund is distributed (Nos. 40832/98, 40833/98 and 40906/98, Bellet , Huertas and Vialatte v. France, decision on admissibility [Third Chamber] 27.04.99 ). The Court further recalls that the rights stemming from paying contributions to social insurance systems are pecuniary rights for the purposes of Article 1 of Protocol No. 1 to the Convention (the Gaygusuz v. Austria judgment of 16 September 1996 , Reports of Judgments and Decisions 1997, p. 1142, §§ 39-41). However, even assuming that Article 1 of Protocol No. 1 guarantees benefits to persons who have contributed to a social insurance system, it cannot be interpreted as entitling that person to a pension of a particular amount (5849/72, Müller v. Austria, Comm. Report. 1.10.75, D.R. 3, p. 25; No. 10671/83, Dec. 4.3.85, D.R. 42, p. 229).

The Court notes that in the present case the applicant lost his entitlement to the social insurance benefits due to veterans. However, in accordance with Article 26 of the 1991 Act, he retained his rights to the ordinary retirement benefits due under the general social insurance system. Thus, it was only the special privileged status which the applicant lost following the contested decisions, his principal social security entitlements having remained intact. The Court observes that the 1991 Act was partly intended to condemn the political role which the communist militia and the communist security services had played in establishing the communist regime and in repressing political opposition thereto. This legislation was based on the consideration that the members of these services, whose function was to combat the political or armed organisations fighting until 1956 for the independence of Poland and for the restitution of a democratic political system, did not merit the special privileges which were accorded to them by the 1982 Act. The Court considers that such considerations of public policy, even if the operation of laws resulting therefrom entails a reduction in social insurance benefits, do not affect the property rights stemming from the social insurance system in a disproportionate or arbitrary manner contrary to Article 1 of Protocol No. 1 (cf. European Commission of Human Rights, No. 28356/95 Styk v. Poland, Dec. 16.01.1998, No. 33889/97 Bie Å„kowski v. Poland, Dec. 9.09.1998, and No. 35187/97 Szumilas v. Poland, Dec. 1.07.1998, unpublished).

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.

2. The applicant further invokes Article 14 of the Convention and submits that he was discriminated against on the grounds of his service in the Civil Militia.

Article 14 of the Convention prohibits discrimination in the securement of Convention rights and freedoms. Thereby any difference in treatment lacking a reasonable and objective basis as regards a Convention right may raise an issue under this provision ( Gaygusuz v Austria judgment of 16 September 1996, Reports 1996-IV, p. 1142, §42).

The Court considers, in the light of its above findings regarding the absence of disproportion and arbitrariness in the observance of the applicant’s rights under Article 1 of Protocol No. 1 to the Convention, that the present complaint is unsubstantiated and does not disclose any appearance of a violation of Article 14 of the Convention. It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.

3. The applicant raises various complaints under Article 6 of the Convention.

Article 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 ... within a reasonable time by an independent and impartial tribunal ... .”

a) The Court must first ascertain whether Article 6 of the Convention is applicable to the proceedings concerned and whether there was a dispute over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Finally, the result of the proceedings must be directly decisive for the right in question (the Rolf Gustafson v. Sweden judgment of 1 July 1997, Reports 1997-IV, p. 1160, § 38).

In the present case the Court observes that, under the provisions of the applicable Polish law, veteran status had a direct bearing on the applicant's pecuniary interests because persons having such a status enjoy certain special employment and social insurance benefits. The decision by which the applicant was divested of his veteran status entailed an automatic termination of those benefits. The Court therefore concludes that the proceedings concerned were decisive for the scope of the applicant's civil rights and that, consequently, Article 6 of the Convention is applicable in the instant case.

b) The applicant submits that he did not have access to court as the administrative authorities gave the final decision in the case.

The Court first notes that the applicant does not complain about the scope of the jurisdiction of the Supreme Administrative Court. Secondly the Court observes that, under the provisions of the Polish Code of Administrative Procedure applicable at the material time, the contested administrative decision could be appealed to the Supreme Administrative Court which was empowered to examine whether the decision was in conformity with substantive and procedural law. In the present case the applicant availed himself of this possibility in respect of both the administrative decisions of 31 May 1995. On 2 December 1996 the Supreme Administrative Court, having examined the applicant’s complaints, upheld one of these decisions and quashed the other, considering that the administrative authorities had acted in breach of the legal provisions concerning the assessment of evidence.

The Court finds, therefore, that it was a judicial body which gave the final decision relating to the applicant’s veteran status in pursuance of the provisions of the 1991 Act, and not an administrative authority. Thus the applicant did have effective access to court and his complaint to the contrary is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

c) The applicant complains that the proceedings in his case exceeded a reasonable time.

The Court observes that the proceedings started on an unspecified date in 1993.  However, the period to be taken into consideration began to run on 1 May 1993, when Poland’s declaration recognising the right of individual petition under the former Article 25 of the Convention took effect. The period under examination ended on 2 December 1996, the date on which the Supreme Administrative Court rendered its judgment by which it upheld the administrative decision of 31 May 1995. The proceedings therefore lasted three years, seven months and two days.

The Court will assess the reasonableness of the length of the proceedings in the light of the circumstances of the case, which in the present case call for an overall assessment, and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among other authorities, the Boddaert v. Belgium judgment of 12 October 1992, Series A no. 235, p. 82, § 36; the Styranowski v. Poland judgment of 30 October 1998, to be published in Reports 1998,  § 47).

The Court considers that the case cannot be considered complex as it only involved a re-examination of the applicant’s veteran status under clear new legislative provisions. Moreover, the establishment of the facts of the case in respect of the applicant’s service in the Civil Militia, which was decisive for the outcome of the case, did not give rise to any particular problems as the facts were not disputed between the parties.

As regards the conduct of the applicant, the Court considers that he did not contribute to the prolongation of the proceedings.

As regards the conduct of the authorities, the Court notes first that there was a period of inactivity between 2 July 1993, the date of the first-instance administrative decision, and 12 April 1994, the date of the judgment of the Supreme Administrative Court by which this decision was set aside. Secondly, there was a delay between the 31 May 1995, the date of the new administrative decision, and 2 December 1996, the date on which the Supreme Administrative Court confirmed this decision and dismissed the applicant's appeal. However, the administrative authorities were expedient in dealing with both sets of proceedings, those leading to the decision of 2 July 1993 and those in which the decision of 31 May 1995 was issued. Moreover, the Supreme Administrative Court examined the applicant’s appeals diligently and in both cases rendered its judgments after one hearing.

Overall the Court considers that the proceedings in the present case were conducted within a reasonable time and that the applicant’s complaint concerning their length is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention

It follows that the applicant’s complaints under Article 6 § 1 of the Convention must be declared inadmissible under Article 35 § 4 of the Convention.

4. The applicant further complains that the decision concerned was in breach of Article 7 of the Convention as he was penalised for his service in the Civil Militia in 1945, despite the fact that it did not amount to a criminal offence at that time.

Article 7 of the Convention, insofar as relevant, reads:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The Court observes that the authorities divested the applicant of his veteran status by virtue of an administrative decision, but no criminal charges were preferred against him and he was not found guilty of any criminal offence. This complaint is therefore unsubstantiated and manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Accordingly it must be declared inadmissible under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza

Registrar President