THIRD SECTION

DECISION

Application no. 71205/01 by Stefan RUCHLEWICZ against Poland

The European Court of Human Rights (Third Section), sitting on 3 July 2003 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mrs H.S. Greve , Mr K. Traja , Mr L. Garlicki , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 25 July 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Stefan Ruchlewicz , is a Polish national, who was born in 1919 and lives in Olsztyn .

The facts of the case, as submitted by the parties, may be summarised as follows.

On 15 June 1993 the Veterans and Persecuted Persons Office instituted ex officio proceedings pursuant to the Veterans and Persecuted Persons Act of 24 January 1991 in order to verify whether under this legislation the applicant was entitled to maintain his veteran status. The applicant was asked to submit information relating to the grounds on which he had acquired this status.

In a letter of 25 June 1993 the applicant informed the Veterans’ and Persecuted Persons’ Office that he was unable to obtain all the relevant documents within the required 14-day time-limit and asked for a new deadline to be set.

By a decision of 5 July 1993 the Director of the Veterans’ and Persecuted Persons’ Office divested the applicant of the “veteran status” which had been granted  him on 5 February 1976. It was established that the applicant served in the former Civil Militia from 15 April 1947 till 15 July 1970 and took part in the armed struggle with “bands and with the reactionary underground resistance”. The decision was taken pursuant to Article 25 read in conjunction with Article 21 of the Act of 1991 which provided, inter alia , that a person who had served in the former internal security services was not entitled to veteran status.

The applicant lodged an appeal against the decision of 5 July 1993 with the Supreme Administrative Court, arguing that he could not be reasonably expected to submit all the relevant documents, and claiming that according to the 1991 Act, the mere fact that he had served in the former Militia could not constitute a ground for depriving him the status of a veteran since he had never participated in armed fighting against underground resistance forces.

On 7 September 1995 the Supreme Administrative Court quashed the decision under appeal. The court considered that the administrative authority had failed to examine all the circumstances concerning the applicant’s case.

On 17 November 1995 the Veterans and Persecuted Persons Office requested the Olsztyn Regional Police Office for information concerning the employment of the applicant in the organs of the public security service.

On 27 November 1995 the Veterans and persecuted Persons Office informed the Social Security Board of the judgment of 7 September 1995 of the Supreme Administrative Court and requested it to resume payment of the applicant’s special veteran benefits.

On 4 January 1996 the Veterans and Persecuted Persons Office asked the applicant to comment on the information provided by the Olsztyn Regional Police Office. The applicant replied on 15 January 1996.

By a decision of 15 March 1996 the Director of the Veterans and Persecuted Persons Office divested the applicant of his veteran status on the basis of the fact that he had been employed in the organs of the public security service. The applicant was instructed that he was entitled to lodge an appeal with the Supreme Administrative Court in Warsaw to examine whether this decision was in conformity with law.

On 12 August 1997 the Supreme Administrative Court rejected the applicant’s appeal against the decision of 15 March 1996, pointing out that the applicant had failed to exhaust available remedies by not filing an appeal with the Director of the Veterans and the Persecuted Persons Office, who should re-examine the contested decision. The court observed that the applicant had been misinformed by the administrative authority as to the possibilities of lodging an appeal against its decision.

On 1 October 1997 the applicant lodged a motion with the Director of the Veterans and the Persecuted Persons Office asking to be granted a retrospective leave to appeal out of time. He further asked for restitution of the previously acquired status of a veteran.

By a decision of 10 March 1998 the Director of the Veterans and the Persecuted Persons Office upheld the decision of 15 March 1996 divesting the applicant of his veteran status and pointing out that the applicant had failed to prove that during his service in the organs of the Internal Public Security Service he had not been involved in the fight against the underground resistance forces.

On 27 March 1998 the applicant lodged an appeal against the decision of 10 March 1998 with the Supreme Administrative Court. On 25 November 1998 the Supreme Administrative Court quashed the decision under appeal. The court considered that the administrative authority had disregarded the applicant’s submissions as well as its obligation to consult a relevant body composed of the persecuted persons’ associations and representatives before delivering the decision.

On 17 May 1999 the Director of the Veterans and Persecuted Persons Office upheld the decision of 15 March 1996 divesting the applicant of his veteran status. Acting on the advice of a relevant body and having taken into account the applicant’s submissions, he considered that there was no basis for assuming that while serving the applicant had not been involved in the fight against “the reactionary underground resistance forces”. The applicant was advised that he could lodge an appeal with the Supreme Administrative Court in Łódź to have it examine whether the decision was in conformity with law.

On 11 June 1999 the applicant lodged an appeal against the decision of 17 May 1999. On the same day he complained to the Ombudsman, inter alia , that his defence rights were infringed due to the fact that he was supposed to lodge an appeal with the Supreme Administrative Court in Łódź , given the considerable distance between his place of residence and the seat of the court. He submitted that he was eighty years old and in a poor physical condition and that he would not be able to travel to a distant place in order to put forward his arguments before the court.

On 29 June 1999 the Veterans and Persecuted Persons Office informed the Social Security Board that the applicant had been divested of his veteran status.

On 2 July 1999 the Supreme Administrative Court in Łódź ordered that the case-file be transmitted to the Supreme Administrative Court in Warsaw for reasons of competence ratione loci . In a letter of 9 July 1999 the Ombudsman requested the Veterans and Persecuted Persons Office to inform him about the reasons why, contrary to the relevant regulations, the applicant had been instructed to file his appeal with the Supreme Administrative Court in Łódź and not in Warsaw.

On 22 July 1999 the Veterans and the Persecuted Persons Office issued a decision rectifying an obvious clerical mistake by stating that the applicant should have been instructed to lodge an appeal with the Supreme Administrative Court in Warsaw and not with the Supreme Administrative Court in Łódź . On the same day the Veterans and the Persecuted Persons Office informed the Ombudsman that the misleading information the applicant had received was the consequence of a writing error and that it did not aim at the restriction on the exercise of the applicant’s defence rights.

On 17 January 2000 the Supreme Administrative Court dismissed the applicant’s appeal against the decision of 17 May 1999. The court held that in the light of 1991 Act, a person who had previously served, or been employed in, the organs of the public security service could not retain the status of a veteran and that the burden of proof rested with the applicant to prove that he did not fall into the category of persons to be deprived of veteran status. The court concluded that the impugned decision had been taken in conformity with the law.

On 30 May 2000 the applicant lodged a constitutional complaint challenging the conformity of the Act of 24 January 1991 with the Constitution. On 6 June 2000, in reply to the applicant’s letter, the President of the Constitutional Court informed him that the court, in a judgment of 15 September 1999, had declared that the 1991 Act amended by the Act of 4 March 1999 was compatible with the Constitution.

COMPLAINTS

The applicant complained under Article 6 of the Convention about the length of the proceedings concerning his veteran status resulting from the numerous mistakes committed by domestic authorities.

He also complained under Article 13 of the Convention that he was deprived of a right to an effective remedy against erroneous decisions, claiming that the evidence submitted by him was ignored by domestic administrative authorities so that he had no real chance to clear his name.

He further complained, invoking Articles 3 and 14 of the Convention that he was humiliated and discriminated by the fact that he was deprived of his veteran status.

THE LAW

On 11 October 2001 the Court decided to communicate the application to the respondent Government.

On 7 April 2003 the Court received the following declaration of 4 April 2003 from the respondent Government:

“I declare that, with a view to securing a friendly settlement of the above-mentioned case, the Government of Poland offer to pay PLN 12,000 to Mr Stefan Ruchlewicz . This sum is to cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable within three months from the date of delivery of the decision by the Court pursuant to Article 39 of the European Convention on Human Rights. This payment will constitute the final resolution of the case.”

On 10 April 2003 the Court received the following declaration of 3 April 2003 signed by the applicant:

“I note that the Government of Poland are prepared to pay me the sum of PLN 12,000 covering pecuniary and non-pecuniary damage and costs with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

I accept the proposal and waive any further claims against Poland in respect of the facts of this application. I declare that this constitutes a final settlement of the case.

This declaration is made in the context of a friendly settlement which the Government and I have reached.”

The Court takes note of the agreement reached between the parties and considers that the matter has been resolved (Article 37 § 1 (b) of the Convention). It is satisfied that respect for human rights does not require the continued examination of the application (Article 37 § 1 in fine ). Accordingly, the application should be struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Vincent Berger Georg Ress Registrar President